Rajinder Pal Petitioner v. State Of Punjab & Ors. S

SURYA KANT, J.

This order shall dispose of CWP Nos. 5068 and 5095 of 1988 as common questions of law and facts are involved in both these cases. For brevity, the facts are being taken from CWP No. 5095 of 1988.

[2]. The petitioner seeks a writ of certiorari for quashing of the orders dated 3.7.1980 [Annexures P-4] whereby allotment of Industrial Shed NO. D-42, Phase-V, Industrial Estate, SAS Nagar, Mohali, has been cancelled, as well as the order dated 11.12.1985 passed by the Collector, Kharar directing the petitioner's eviction from the aforementioned plot, as also the order dated 19.11.1987 whereby the petitioner's appeal against the above mentioned eviction order has been dismissed.

[3]. The facts may be noticed briefly.

[4]. The petitioner was allotted an Industrial Shed No. D-42, Phase-V, SAS Nagar, Mohali on 99 years lease-hold basis vide allotment letter dated 12.11.1974 [Annexure P-1] for a consideration of Rs. 92,000/-. He was required to deposit 10% of the premium, i.e, Rs. 9200/- within 30 days, whereas the balance premium amount was to be paid as per clause 2[iv] and [v] of the allotment letter which reads as under:-

“2[iv] The balance of 90% of the premium of shed shall be payable in the manner indicate below:-

[a] 6% of price on the 2nd anniversary of the date of allotment of site;

[b] 84% in six equated installments along with due interest decided by the Corporation. The first installment to be paid on the 3rd anniversary of the execution of lease deed and the remaining five installments to be paid on each of the following five years.

[v] An annual lease rent @ Rs. 1/- per 1000 sq. yds. Shall also be payable by 10th of every month preceding the year”.

[5]. Clause 2[vii], [viii] and [ix] of the allotment letter reads as follows:-

“[vii] In the event of non-payment of any installment on due date it shall be lawful for the MD, PSSIC notwithstanding the waiver of any previous cause or right for re-entry thereon or any part thereof and to repossess, retain and enjoy one same as to his former Estate and you will not be entitled to refund of premium or any part thereof or to any compensation whatsoever on account of such resumption.

[viii] In the event of non-payment of premium price of the shed or interest due thereon, a penal interest of 20% per annum shall be charged, until the outstanding arrears are fully cleared.

[ix] on payment of 10% premium of shed you shall execute a lease deed in the form and in such manner as may be directed by the Managing Director, PSSIC. The possession of shed will be delivered after the lease deed is executed by you and you shall enjoy the right of possession so long as you continue paying installments of the premium on the due dates and abide by other terms and conditions”.

[6]. It appears that on the representation made by the allottees, the respondent Corporation, with the approval of the State Government, granted relaxation in terms of the period during which the allotment price was required to be paid. It is, however, not in dispute that the petitioner failed to make payments within the expanded period also due to which a show cause notice dated 28.2.1980 [Annnexure P-3] was served upon him, the relevant part whereof reads as follows:-

“Whereas you are required to make the payment of the following installments of principal amount and interest on the dates noted against each but the same are still awaited inspite of written reminders from this office.

Sr.

No.

[7]. The petitioner was thereafter served with the impugned Total Due date

1. 6% 4680 - 3407 8087 29.3.77

2. First 10920 29562 17812 58294 28..4.78

3. Second 10920 6552 3494 20966 28..4.79

4. Third 10920 5803 - 16723 28..4.80

Installment No. Principal Amount Interest Interest at penal order dated 3.7.1980 [Annexure P-4] whereby the lease was cancelled; the plot was resumed and the amount of Rs. 9200/-deposited by the petitioner towards 10% earnest money was forfeited by the respondent Corporation.

[8]. After the cancellation of lease hold rights that the petitioner is claimed to have deposited a sum of Rs. 1000/- on 30.5.1991 as Annual Lease Rent for the month of January, 1981, followed by two more payments of Rs. 2000/- and Rs. 1000/- on 30.7.1981 and 30.10.1981 respectively.

[9]. On the strength of the above stated payment of Rs. 4000/-, the petitioner claims that his lease-hold rights stood revived and the respondent Corporation is deemed to have waived off its right to seek possession of the plot from him in terms of the resumption order dated 3.7.1980

[10]. The petitioner did not vacate the site, therefore, proceedings under Section 4 read with Section 5 of the Punjab Public Premises and Land [Eviction and Rent Recovery] Act, 1973 [for short ‘the Public Premises Act’] were initiated, pursuant to which the Collector, Kharar being the competent Authority, passed the eviction order on 11.12.1985 after holding that the petitioner had no right to retain possession once his lease-hold rights had been cancelled by the Corporation. The petitioner preferred an appeal before the Appellate Authority under the Act but the same was also dismissed by the Commissioner [Appeals], Patiala vide the impugned order dated 19.11.1987

[11]. Still aggrieved, the petitioner approached this Court challenging the original order of cancellation of lease-hold rights dated 3.7.1980 as well as the eviction order dated 11.12.1985 and the Appellate Order dated 10.11.1987 passed under the Public Premises Act. As an interim measure, the eviction of the petitioner was stayed.

[12]. No sooner the writ petition was listed for final disposal, the petitioner moved Civil Misc. No. 15557 of 2005, inter-alia, seeking a direction to the respondent Corporation “to calculate the amount due from the petitioner — applicant in accordance with the Scheme so that he can pay the amount in easy installments” The afore-stated application was disposed of after notice to the counsel for the respondent Corporation on 26.5.2006 in the following terms:-

“Learned counsel for respondent No. 3 submits that if a representation is filed by the petitioner, before the Managing Director of respondent corporation, the same shall be decided within two months from the date of filing of representation and if some benefit is permissible under the said policy, the respondent Corporation shall extend the same to the petitioner.

In view of this undertaking made by learned counsel for respondent No. 3 Corporation, learned counsel for the petitioner submits that this application may be disposed of.

This application is accordingly disposed of in terms of statements of learned counsel for the parties” [Emphasis applied].

[13]. The petitioner did approach the respondent corporation but his claim that he was liable to pay only simple interest @7% per annum, was turned down vide order dated 12.12.2006 holding that he was liable to pay the outstanding dues of Rs. 45,10,069/-. However, if the petitioner was interested to seek restoration of the allotment, the Corporation expressed its willingness to waive off penal interest component up to 50% as per the policy of the corporation. The aforesaid order dated 12.12.2006 reads as under:-

“In compliance with the directions issued by Hon'ble Punjab and Haryana High Court in CWP No. 5095/1988 titled Rajinder Pal v. State of Punjab & others, your representation dated nil received in this office on 20.10.2006 has been considered and it has been found as under:-

1. That a built up shed NO. D-42, Phase-V, Mohali was allotted to you vide letter No. PSSIC/CE/A1.R-2/26845-49 dated 12.11.1974

2. That due to default in payment of dues, allotment of shed was cancelled on 3.7.1980 and consequently eviction proceedings were filed by PSIEC in the court of Collector, Kharar.

3. That the Collector Kharar decided the case on 31.12.1985 and ordered you to vacate the premises within a period of 30 days failing which you were liable to be evicted from the said premises.

4. That you had filed an appeal before Commissioner, Patiala Division against the orders of the Collector, Kharar which was also dismissed by the Commissioner, Patiala Division on 19.11.87

5. That you had filed CWP No. 5095 of 1988 in the Hon'ble High Court of Punjab & Haryana. The Hon'ble High Court while deciding the CWP No. 5095 of 1988 passed directions to the Corporation that if a representation is filed by the petitioner before the M.D Of the respondent Corporation, the same shall be decided within two months from the date of filing of representation and if some benefit is permissible under the said policy, the respondent shall extend the same to the petitioner.

6. That in para 10 of your representation, you have mentioned that the matter be settled in accordance with the scheme which provides that a defaulter can pay the principal of balance amount with simple interest @7P.A You have further mentioned that in a similar case with respect to Plot No. D-67, Director of Industries, Punjab have waived off the penal interest also and the balance outstanding payment has been sought.

7. That your representation has been considered and it is accordingly informed that there is no such prevalent scheme/policy of the Corporation which provides that a defaulter can pay the principal of balance amount with simple interest @7% p.a Moreover, no concession with regard to waiving off penal interest has been allowed to Shed NO. D-67, Phase-V, Mohali as averred in your representation.

A sum of Rs. 45,10,069/- is outstanding against the shed as on 31.12.2006 plus other incidental charges. However, in case you are interested to seek restoration of cancelled allotment of shed and to clear the dues in lump-sum by a particular date, Corporation can consider to waive off penal interest component up to 50% as per the policy of the Corporation for which you will have to make a separate representation.

In view of the above, your representation is disposed off accordingly” [Emphasis applied].

[14]. The petitioner instead of accepting the above-stated offer, moved yet another application before this Court and took up the stand as has been noticed in the below reproduced order dated 11.1.2008:-

“The application has been moved by the petitioner with the prayer that he is ready to discharge entire liability which he earlier could not because of some difficulty, in view of over-all situation in the State. Learned counsel for the respondent seeks time to have instructions in this regard” [Emphasis applied].

[15]. However, at the time of final hearing, the counsel for the petitioner reiterated that he was liable to pay only simple interest on the due installments and the offer made by the Corporation vide order dated 12.12.2006 is not acceptable to him. He also repeated the contention that once the respondent Corporation had accepted Rs. 4000/- towards annual rent as per clause 2[v] of the Allotment Letter after passing of the resumption order dated 3.7.1980, the lease-hold rights of the petitioner stood revived.

[16]. I have heard counsel for the parties at some length and perused the records. In my considered view the petitioner is a habitual defaulter who is enjoying the public property without performing his part of obligation under the lease contract. The record reveals that after paying 10% of the premium, i.e, Rs. 9200/-, the petitioner paid nothing though kept on reaping the fruits of the property in total violation of the terms and conditions of the allotment.

[17]. The fact of the matter is that the petitioner's lease was cancelled vide order dated 3.7.1980 after following the due procedure and he never challenged that order before any Forum within a reasonable period. The record further reveals that since the petitioner refused to vacate the premises, proceedings under the Public Premises Act were initiated which led to passing of the eviction order dated 11.12.1985, against which his appeal was also dismissed by the Appellate Authority. The long silence of the petitioner against the resumption order dated 3.7.1980 is sufficient to infer that he had nothing to say against the said order. Similarly, the orders passed under the Public Premises Act did not revive his cause of action so far as challenge to the order of cancellation of lease is concerned.

[18]. The petitioner's plea that the respondent corporation having accepted Rs. 4000/- on three occasions towards the Annual Lease rent after cancellation of the leasehold rights is deemed to have waived off its right to seek his eviction, is wholly misconceived and baseless. Until the petitioner had vacated the industrial shed, the respondent corporation is entitled to recover the user charges whether termed as ‘annual rent’ or ‘mesne profits’. The resumption order having been passed as per the terms and conditions of the allotment on account of non-payment of due installments, nothing could have defuncted that order except the due payments by the petitioner as per the agreed terms and conditions.

[19]. The fact that the petitioner suddenly woke up and moved an application in the year 2005 before this Court showing his willingness to pay the due amounts also suggests that the petitioner paid nothing towards the due installments before or after passing of the resumption order. The petitioner appears to have no intention to pay inasmuch as he refused to avail the benefit of waiving off 50% of the penal interest component which the Corporation offered him vide order dated 12.12.2006

[20]. During the course of arguments, no other meaningful argument could be advanced on behalf of the petitioner except reiterating the above noted contentions.

[21]. Ordinarily, this Court would have dismissed the writ petition for the reasons afore-stated. However, the fact remains that the petitioner is in possession of the Industrial Shed since the year 1975. He has retained the possession for the last more than 20 years under the interim orders of this Court. In these circumstances, I deem it appropriate to give one more opportunity to the petitioner to clear the entire dues in terms of the order dated 12.12.2006 passed by the Corporation in compliance to the order dated 26.5.2006 of this Court. In case the petitioner offers to make payment of the due arrears, the Corporation, as agreed to vide order dated 12.12.2006, shall waive off 50% of the penal interest component. The petitioner shall be required to pay the entire dues within four months from the date a certified copy of this order is received and in the event of failure, the writ petition shall be deemed to have been dismissed and accordingly the respondent Corporation shall be entitled to take possession of the site from the petitioner.

[22]. Disposed of accordingly. No costs.

May 20, 2009. (SURYA KANT) dinesh JUDGE