Roshan Lal vs Union Territory and Another

M.M. Kumar, J.—The petitioner is aggrieved by order dated 14.7.2006 (Annexure P-10) passed by the Assistant Estate Officer exercising the powers of Estate Officer, U.T. Chandigarh-respondent No. 2, declining his request for acceptance of a sum of Rs. 15,780/- as 15% of the premium of Built-up Booth No. 15, Sector 43, Chandigarh, which was allotted to him under the Allotment/Transfer of Built-up Booths on Lease Hold Basis in Chandigarh, Scheme 1993 (for brevity, ''the 1993 Scheme''). The petitioner has also challenged order dated 9.5.2007 (Annexure P-12) passed by the Appellate Authority-Chief Administrator, U.T. Chandigarh-respondent No. 1, rejecting his appeal filed under Clause 28(1) of the 1993 Scheme.

Brief facts of the case are that the petitioner was running a Karyana Shop in village Attawa, U.T., Chandigarh. The land where the shop of the petitioner was situated, was acquired by the Chandigarh Administration for development of Sectors 42-B and 43-A, Chandigarh in the year 1978. With a view to rehabilitate the displaced persons, the Chandigarh Administration floated the 1993 Scheme and decided to allot built up booths to the eligible persons. The petitioner being the uprooted shop-keeper of Attawa applied for allotment of built up booth under the 1993 Scheme and deposited a sum of Rs. 10,520/- being 10% of the premium amount on 24.6.2002 (P-1).

In pursuance to draw of lots held on 23.5.2003, the petitioner was allotted Booth No. 15, Sector 43, Chandigarh and a letter of intent was issued to him on 6.1.2004 (P-2). As per Clause No. 4 of the letter of intent he was required to deposit a sum of Rs. 15,780/- so as to complete 25% of the premium within 15 days from the date of issue of letter of intent failing which the offer was deemed to be withdrawn. The petitioner failed to deposit within 15 days or even within 90 days extendable by the authorities after charging penalty at the rate of 5% in accordance with the decision dated 11.5.1998 of the U.T. Administration. He claimed that he had met with an accident on 9.8,2003 and suffered fracture of right clavicle, which was a reasonable cause for not depositing the aforementioned amount within the stipulated period.

On 20.9.2004, respondent No. 2 issued a show cause notice granting an opportunity of hearing to the petitioner to show cause as to why the allotment of Booth No. 15, Sector 43A, Chandigarh be not cancelled on account of his failure to deposit 25% of the premium amount within stipulated period (P-4). Thereafter, on 14.10.2004 the petitioner got prepared a Draft No. 026518, for a sum of Rs. 15,800/- from the Chandigarh State Co-operative Bank Limited, Maloya (P-5) and deposited the same on 15.10.2004 in the office of the Estate Officer, Chandigarh, against Computerised Receipt No. 422509, dated 15.10.2004 (P-6). On 12.1.2005, a communication was sent by the office of the Estate Officer, U.T. Chandigarh to the petitioner asking him to resubmit the draft dated 14.10.2004 after revalidation (P-7). On 9.1.2006; another letter was issued to the petitioner mentioning that the Demand Draft dated 14.10.2004 was not traceable nor the same was credited in his account. He was asked to obtain duplicate demand draft from the concerned bank and submit the same for further action in the matter (P-8). The bank after revalidation issued a fresh draft bearing No. 026755, dated 11.1.2006, which was deposited by the petitioner on 17.1.2006.

On 14.7.2006, respondent No. 2 passed an order canceling allotment of Booth No. 15, Sector 43, Chandigarh on the premise that the petitioner has failed to deposit the 15% premium amount of Rs. 15,780/- for two years and his request for condonation of delay was forwarded to the Administration on 24.1.2006, which was declined vide Memo. No. 9/9/406-UTFI(1)-2006/2356, dated 1.5.2006 on the ground that the reasons given for delay were not substantive and sufficient. The amount of Rs. 10,520/- already paid by the petitioner as 10% of the premium has also been forfeited. It was further ordered to refund demand draft of Rs. 15,780/-, bearing No. 026755, dated 11.1.2006 to the petitioner, which was submitted by him towards 15% of the premium (P-10).

Feeling aggrieved, the petitioner preferred an appeal under Clause 28(1) of the 1993 Scheme before the Chief Administrator-respondent No. 1 (P-11), which was also rejected vide order dated 9.5.2007 (P-12). The aforementioned orders are subject matter of challenge in the instant petition. The operative part of the order dated 9.5.2007 (P-12) reads thus:

I have heard both the parties and have gone through the record placed on file, carefully. On the submissions made by the Ld. Counsel, the delay is condoned. The Ld. Counsel has placed reliance on the various judgments as cited above. In all the cited cases, the default was committed at a later stage after making the initial deposit of 25%. Part payments were made. All the above cases relate to sites purchased in open auction. In the case in hand, the appellant failed to complete the initial payment of 25% of the consideration money within 15 days from the issue of the letter of intent. Second difference in this case is that the site was disposed off on concessional price. The appellant right from the beginning could not prove his bona fide and was a defaulter ab-initio.

The file reveals that the appellant has deposited the balance amount (of 25%) Rs. 15,780/- after 2 years from the issue of letter of intent, which was returned to the appellant by the Estate Officer. The show cause notice was issued (sic) 20.09 through the process server. The service was effected by pasting a copy of (sic) notice. Therefore, the service of notice was effected as per rules. The appellant has (sic) advanced cogent reasons for not depositing the balance amount within the stipulated period. I find that the delay in depositing the 15% of the premium, to make it 25%, was without sufficient cause, and willful. In view of the above, I do not find any reason to set aside the impugned orders of the Estate Officer. Hence, the appeal is dismissed.

We have heard learned Counsel at a considerable length and find that the approach adopted by the respondents is unwarranted and unsustainable in the eyes of law. A perusal of the original record shows that the petitioner was a karyana shopkeeper in the erstwhile village Attawa. He was uprooted on account of acquisition of the land where Sector 42-B and Sector 43-A, Chandigarh, have been established. In order to rehabilitate a displaced person like the petitioner the 1993 Scheme has been framed by the Chandigarh Administration. According to the 1993 Scheme, the respondent Administration decided to allot small booths to all such eligible and displaced person.

The petitioner was short-listed in the list of eligible persons. He applied for inclusion of his name in the draw of lots which was held on 23.5.2003. He deposited 10% of the amount and remaining 15% was required to be paid within 15 days of the issuance of letter of intent. On 6.10.2004, a letter of intent was issued (P-2). The petitioner was required to deposit the amount within a period of 15 days as per Clause 4 of the letter of intent and thereafter the final allotment letter with detailed terms and conditions was to be issued. Both Clauses 4 and 5 of the letter of intent reads thus:

That you are required to deposit a sum of Rs. 15,780/- (Rupees Fifteen thousand, seven hundred eighty only) so as to complete the 25 percent of the premium by means of bank draft within 15 days from the date of issue of letter of intent failing which this offer shall be deemed to have been withdrawn.

The final allotment letter containing detailed terms and conditions shall be issued after the completion of payment of 25 percent of premium.

The period of 15 days expired on 21.1.2004 and the petitioner was not able to deposit the amount. On 20.9.2004, a notice was issued to the petitioner to show cause as to why letter of intent be not withdrawn and the matter was fixed for hearing on 5.10.2004. A perusal of the record shows that on 5.10.2004 the petitioner appeared before the Estate Officer and filed an affidavit with the statement that on account of an accident with a tractor at village Maloya he remained in bed for a period of four months. He requested for extension of time for one month to deposit the amount. The petitioner has claimed that he was asked to deposit the remaining 15% of the premium and accordingly he got prepared a demand draft dated 14.10.2004 (P-5) for a sum of Rs. 15,800/- and deposited the same with the Estate Officer, Chandigarh on 15.10.2004, against computerized receipt No. 422509, dated 15.10.2004 (P-6). The delay in depositing the amount if counted from the date of depositing the draft on 15.10.2004 would be less than 9 months whereas in the impugned order huge delay of over two years has been pointed out which is absolutely incorrect. The afore-mentioned fact is further supported by the communication dated 12.1.2005, whereby the petitioner was asked to resubmit the draft dated 14.10.2004 after revalidation (P-7). However, the demand draft was not traceable in the office of the respondents as is revealed in the letter dated 9.1.2006.

According to the letter sent by the Estate Officer demand draft dated 14.10.2004 was not traceable in its office nor it was credited to the account of the Estate Officer. The petitioner was asked to obtain duplicate demand draft from the concerned bank and submit the same before any further action was taken in the matter. Accordingly the petitioner on 10.1.2006 again sent demand draft (P-9). Therefore, the findings recorded in the impugned order that 25% amount was deposited after two years from the issuance of letter of intent is absolutely incorrect. The demand draft has been sent to the Estate Officer within a period of less than nine months for the reason that the petitioner met with an accident.

We further find that the approach adopted by the Appellate Authority-Chief Administrator is not sustainable, inasmuch as, it has been found that the booths were offered on concessional rate. It is true that the petitioner was eligible for allotment of a booth as he is a displaced person having been uprooted from his erstwhile Karyana shop in the then village Attawa. The land has been acquired and under the 1993 Scheme of rehabilitation the petitioner was allotted booth in the draw of lots. A person who is uprooted is sought to be rehabilitated and, therefore, it cannot be said that any concession is shown to such a person. After loosing a goodwill at his earlier place the petitioner has to establish his business which would require a lot of efforts. Even otherwise in para 6 the respondent has made a reference to the decision of the Administration dated 11.5.1998 that delay upto 90 days could be condoned.

Therefore, it cannot be concluded that period of 15 days or 90 days is absolutely mandatory and in appropriate cases the period could not be extended. In a case where the petitioner has met with an accident and the Administration has initially accepted his request for depositing the amount then it is unwarranted to decline the request by putting forward the excuse that the demand draft, has been presented two years after the issuance of letter of intent. The fact remains that the petitioner has submitted demand draft on 15.10.2004 which was within a period of less than nine months of the issuance of letter of intent. Merely on the basis that the demand draft was lost by the respondents the period of about 9 months cannot be deemed to have been delayed further to over two years when the petitioner was asked to resubmit the demand draft.

We asked Mr. Vikas Suri, learned Counsel for the respondents as to whether Booth No. 15, Sector 43-C, Chandigarh, is still available or it has been allotted to some other person. Mr. Suri after obtaining instructions from Mr. Kuldeep Singh, Senior Assistant, office of the Estate Officer, Chandigarh, has stated that Booth No. 15, Sector 43, Chandigarh, has not been allotted to any one and is still available.

For the reasons afore-mentioned we are of the view that the delay of 8/9 months caused by the petitioner in making payment of 15% deserves to be condoned by charging penalty @ 5%. We have imposed the rate of penalty of 5% by taking clue from the decision of the respondent Administration dated 11.5.1998. Accordingly, the writ petition succeeds and the orders dated 14.7.2006 (P-10) and 9.5.2007 (P-12) are quashed. The respondents are directed to restore Booth No. 15, Sector 43, Chandigarh, to the petitioner. The petitioner shall be liable to pay penalty @ 5% in accordance with the decision dated 11.5.1998 for the delay of 8/9 months. Mr. Dhiman, learned Counsel for the petitioner after obtaining instructions from the petitioner undertakes to deposit the whole amount with interest and penalty within a period of two months from today.

On deposit of the whole amount, necessary documents in favour of the petitioner be executed and the whole process be completed within a period of one month thereafter. The writ petition stands disposed of in the above terms.