TaxTMI 
TaxTMI 
2006 (2) TMI 719
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....sh Verma, J.P. Tripathi, A.P. Mohanty, K.V. Mohan, K. Datta and R.K. Choudhary, Advs JUDGMENT A.K. Mathur, J. 1. Leave granted. 2. All these petitions involve common question of law, therefore, these are taken up together for disposal by the common judgment. 3. In all these petitions, there are two class of petitions, one filed by the private parties/individuals against the Division Bench judgment of the Punjab & Haryana High Court whereby the Division Bench has not given any relief following its judgment passed in CWP No. 13695 of 2001 dated 18.2,2002 [D.L.G. Builders Private Limited v. The Advisor to the Administrator, Chandigarh Administration and Ors.]. The relevant portion of that judgment reads as under: In our considered view, the allottee is bound to pay the premium and other charges in accordance with the conditions of allotment. If the judgment of M/s. Shanti Kunj Investments Pvt. Ltd.(supra) is read as laying down a proposition that the allottee is not obliged to pay the balance of premium even after raising construction of the building and occupying it on the pretext that beautification of the site has not been done or land-scalping has not been ....
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....e Municipal Corporation of Chandigarh on certain terms and conditions of the sale of residential and commercial sites & buildings by auction on lease for 99 years and certain terms and conditions were laid down therein. But the challenge in these various petitions filed before the Punjab & Haryana High Court was that the basic amenities were not provided and, therefore, the Chandigarh Administration and the Municipal Corporation of Chandigarh were not entitled to charge interest @ 18% or 10%, as the case may be, on the installment as well as non-payment of installment and non-payment of the ground rents. Likewise, they cannot charge the penalty for delayed payment at the rate of 10% and at the rate of 24% interest on the amount falling short of equated installment or part thereof and likewise on the ground rents. 7. So far as the Division Bench of Punjab & Haryana High Court in the case of Shanti Kunj Investment (supra) held that providing of amenities is a condition precedent to the payment of the interest and penalty. As against this, two Division Bench in the case of G.S. Khurana v. Chandigarh Administration by order dated 18.2.2002 and in the case of DLG Builders Pvt. Ltd. v....
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....ecessary steps for providing the amenities. But no amenities such as roads, water supply, landscaping etc. were provided. It was alleged that since the petitioner had paid the entire premium as provided under the Act and Rules, therefore, no interest or ground rent can be charged till all the amenities, as required under the Act and Rules, are provided. Hence, with this grievance, the petitioner approached the High Court. The High Court examined all the provisions and came to the conclusion that Chandigarh Administration cannot charge interest @ 18%. Though, initially the interest was charged as 7%, but ultimately by notification it was increased to 10%. It was held by the Division Bench that there was no notification for charging the interest @ 18% and it was conceded before us that so far as this part of the order is concerned, the Administration does not challenge and the petitioner will be charged @ 10%. 10. The other aspect was also examined by the Division Bench and they gave an extended meaning to the definition as provided under Section 2(b) 'amenities' of the Capital of Punjab (Development and Regulation) Act, 1952 (hereinafter referred to as the 'Act').....
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.... the general public there, he may serve on the transferee or occupier of that site or building a notice requiring him to take such steps and within such period as may be specified in the notice and thereafter to maintain it in such a manner as may be specified therein. 18. Section 7 provides for Levy of fee or tax for amenities which reads as under: 7. Levy of fee or tax for amenities. - (1) For the purposes of providing maintaining or continuing any amenity at Chandigarh the [Central Government] may levy such fees or taxes as it may consider necessary which shall be in addition to any fee or tax for the time being leviable under any other law in respect of any site or building on the transferee or occupier thereof. 19. Section 8 provides for imposition of penalty and mode of recovery of arrears. Section 8-A provides for resumption and forfeiture for breach of conditions of transfer which reads as under: 8-A. Resumption and forfeiture for breach of conditions of transfer. (1) If any transferee has failed to pay the consideration money or any installment thereof on account of the sale of any site or building or both, under Section 3 or has committed a breach ....
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....ch terms and conditions as the Government may decide. 8. Lease by allotment, Procedure for. - (1) In case of allotment of site of building the intending lessee shall make an application to the Estate Officer in Form 'A'. (2) No application under Sub-rule (1) shall be valid unless it is accompanied by 10 per cent of the premium as earnest money in the prescribed mode of payment. (3) When 10 per cent of the premium has been so tendered the Estate Officer shall, subject to such directions as may be issued by the Chief Administration in this behalf, allot a site of the size applied for or a building of which particulars are given in the application and shall intimate, by registered post the number, sector, approximate area, premium and the rent of the site or building allotted to the applicant. (4) The applicant shall, unless he refuses to accept the allotment within 30 days of the date of the receipt of the allotment order, deposit within that period and in the prescribed mode of payment, further 15 per cent of the premium. The remaining 75 per cent of the premium shall be paid as provided in rule 12. (5) If the applicant refuses to....
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....mium shall be paid in three annual equated installments or more as the Chief Administrator may in exceptional circumstances of a case fix within prior approval of the Chief Commissioner along with interest at the rate of 10 per cent per annum or at such higher rate of interest as may be fixed by the Chief Administrator by a notification in the official Gazette before the commencement of the lease. The first installment shall become payable after one year from the date of allotment/auction. Provided that in the case of allotment of site or building of Small Scale Industries as defined by Chandigarh Administration from time to time in the Industrial area, the balance of the 75 per cent of the premium may be paid in ten annual equated installments or such other number of annual equated installments as may from time to time be fixed by the Chief Administrator along with interest at the rate of 10 per cent per annum or such higher rate of interest as may be fixed by the Chief Administrator by a notification before the commencement of the lease. (3) In case any installment is not paid by the lessee by the date on which it is payable, a notice may be served on the lessee....
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....x months on the whole on further payment of 6 per cent per annum interest from the due date upto the date of actual payment. (iii) If rent is not paid by the due date, the lessee shall be liable to pay a penalty not exceeding 100 per cent of the amount due which may be imposed and recovered in the manner laid down in Section 8 of the Capital of Punjab (Development and Regulation) Act, 1952, as amended by Act No. 17 of 1973. 14. Execution of lease deed. - (1) After payment of 25 per cent premium the lessee shall execute a lease deed in Form B, B-I, B-II, or C, as the case may be, in such manner as may be directed by the Estate Officer within six months of the date of allotment/auction or within such further period as the Estate Officer may, for good and sufficient reasons, allow. (2) If the lessee fails to execute a lease deed in accordance with Sub-rule (1) of this rule, the State Officer may cancel the lease and forfeit a sum up to 25 per cent of the premium. Provided that before taking action under Sub-rule (2) of this rule, the Estate Officer shall afford a reasonable opportunity to the lessee of being heard. 23. In this background of the A....
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..... AIR 2003 SC 4172 [Divisional Controller , KSRTC v. Mahadeva Shetty and Anr.] 3. 2003 CriLJ 4329 [Megh Singh v. State of Punjab] 4. 2004(170)ELT135(SC) [Collector of Central Excise, Calcutta v. Alnoori Tobacco Products and Anr.] 24. It was also contended that the statute should be interpreted in the manner which advanced the cause of the public. In this connection, the following decisions of this Court were cited by learned Counsel for the respondents. 1. [1981] 131 ITR 597(SC) [ K.P. Varghese v. Income Tax Officer, Ernakulam and Anr] 2. 1992 CriLJ 527 [State of Haryana and Ors. v. Bhajan Lal and Ors.] 3. [1993] 199 ITR 530 (SC) [C.B. Gautam v. Union of India and Ors.] 25. As against this learned Counsel appearing for the appellant submitted that in fact the expression, "amenities" cannot be given extended meaning and the consistent case of the Administration was that necessary amenities had already been provided and in some of the plots, the buildings had been constructed. In some cases, the premises had been let out. Therefore, it was the case of the appellant throughout before the High Court as well as before this Court that pr....
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....njoy the allotment, proper linkage is necessary. But to say that this is a condition precedent, that is not the correct approach in the matter. "Amenity" has been defined under Section 2(b) of the Act which includes roads, watersupply, street lighting, drainage, sewerage, public building, horticulture, landscaping and any other public utility service provided at Chandigarh. That is a statutory obligation but it is not a condition precedent as contended by learned Counsel for the respondents. It is true the word, "enjoy" appearing in the definition of the word "premium" in Rule 3(2) of the Rules, means the price paid or promised for the transfer of a right to enjoy immovable property under the Rules. It was very seriously contended before us that the word, enjoy immovable property necessarily means that the Administration should provide all the basic amenities as appearing under Section 2(b) of the Act for enjoying that allotment. The expression "premium" appearing in the present context does not mean that the allot tees/ lessees cannot enjoy the immovable property without those amenities being provided. The word "enjoy" here in the present context means that the allottees have a ri....
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.... associated with property. They may be tangible. Often amenities in a condominium include swimming pools, landscaping, and tennis court. Therefore, the term amenity in the context of real estate is to mean the facilities as provided under Section 2(b) of the Act but it can never be treated to mean that this is a condition precedent. It is for the better use of the allotted piece of land but that does not mean that it should be provided first as a condition precedent in the matter in the present case. Learned counsel invited our attention to the expression , " enjoy" as per the Webster's Dictionary, which means as follows: to have, possess, and use with satisfaction; to have, hold, or occupy, as a good or profitable thing, or as something desirable; as, we enjoy many privileges. It is true that once allotment of the land has been made in favour of the allottee, he can take possession of the property and use the same in accordance with the Rules. That does not mean that all the facilities should be provided first for so called enjoyment of the property this was not the condition of auction. Party knew the location & condition prevailing thereon. The interpretation ....
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....that date. The fact that the plot has not yet been fully developed, as is the case of the appellant, has, therefore, no significance insofar as charging of interest is concerned. We are not in a position to accept the submission of Shri Bhandare that equity would not demand charging of interest, even though the plots are yet to be fully developed. When parties enter into contract, they are to abide by the terms and conditions of the same, unless the same be inequitable. In the present case, question of equity does not really arise inasmuch as the condition relating to interest is founded on a statutory rule, vires of which has not been challenged. The provision in a cognate rule cannot alter the consequence which has to follow from the rule which holds the field. In the present case, it being the Punjab Rules under which the allotment was made, we are not in a position to agree with Shri Bhandare, despite his forceful submissions, that the appellants may not be asked to pay interest, despite their having been no offer of delivery of possession of fully developed plots. Similar is the position here also though the Rules are not almost identical but somewhat similar. In the presen....
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....ation is under the obligation to provide the amenities but there is no such condition precedent for that matter. In this connection, our attention was also invited that the provisions of the Act should be interpreted in a manner which advances the cause of the public. There is no two opinion in the matter that the statute should be interpreted in the manner which advance the cause of the public. But when the issue comes where there is any statutory obligation then certainly this Court will not hesitate to do so. But in the absence of such, to lay down that this was a condition precedent and allow the allottees to waive their obligation to pay the installments with interest, that is not correct. In the case of K.P. Varghese (supra), under the Income-tax Act, 1961, Their Lordships have considered the matter and have held that Circular issued under Section 119 of the Act by the Central Board of Direct Taxes explaining the scope and object of a provision, is binding because it gives contemporaneous exposition and hence the provision must be construed in accordance with the terms of the circulars. Thus, the rule of construction by reference to contemporaneous exposition is a wellestabli....
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.... take possession of the plot and deny payment of interest because the plot had not been developed. Similar provision appears in the present case i.e. the balance of the 75 per cent premium may be paid in three annual equated installments along with interest without condition of providing amenities in advance. 29. Similarly, in the case of Divisional Controller, KSRTC v. Mahadeva Shetty and Anr reported in AIR 2003 SC 4172, this Court observed as follows The decision ordinarily is a decision on the case before the court, while the principle underlying the decision would be binding as a precedent in a case which comes up for decision subsequently. Therefore the decision in the case of Sector-6, Bahadurgarh Plot Holders' Association (Regd.) (supra) fully applies in the case as the situation is analogous. 30. Learned counsel further invited our attention to a decision of this Court in the case of Megh Singh v. State of Punjab reported in 2003 CriLJ 4329 . This was a case under the Narcotic Drugs and Psychotropic Substances Act, 1985. In that context, their Lordships held as follows: Circumstantial flexibility, one additional or different fact may make a w....
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....sible for us to examine all these facts individually. Some of the sectors have been fully developed and some sectors have been less developed. Therefore, it is not possible to work out that in one case it has been fully developed and in the other case it is still not developed. However, in some cases full payment has been made, in some cases two installments have been made. Therefore, all these disputed facts have to be adequately dealt with by the High Court. We make it clear that though it was not a condition precedent but there is obligation on the part of the Administration to provide necessary facilities for full enjoyment of the same by the allottees. We therefore, remit the matter to the High Court for a very limited purpose to see that in cases where facilities like kutcha road, drainage, drinking water, sewerage, street lighting have not been provided, then in that case, the High Court may grant the allottees some proportionate relief. Therefore, we direct that all these cases be remitted to the High Court and the High Court may consider that in case where Kutcha road, drainage, sewerage, drinking water facilities have been provided, no relief shall be granted but in case,....