Administration & ANR. Vs. Amarjeet Singh and Ors.  INSC 547 (17 March
IN THE SUPREME COURT
OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 1994 OF 2006 U.T.
Chandigarh Administration & anr. ....... Appellants Amarjeet Singh &
Ors. ....... Respondents and Civil Appeal No. 1995 of 2006, CA No. 1633/2009 @
SLP [C] No.25250/2007;
CA No. 1634/2009 @
SLP [C] No.4518 of 2008, CA No. 1635/2009 @ SLP [C] No.4519 of 2008, CA No.
1636/2009 @ SLP [C] No.4520 of 2008, CA No. 1637/2009 @ SLP [C] No.4523 of
2008, CA No. 1638/2009 @ SLP [C] No.4525 of 2008, CA No. 1639/2009 @ SLP [C]
No.6362 of 2008, CA No. 1640/2009 @ SLP [C] No. 6363 of 2008, CA No. 1641/2009
@ SLP [C] No.6364 of 2008, CA No. 1642/2009 @ SLP [C] No.6365 of 2008, CA No.
1643/2009 @ SLP [C] No.6366 of 2008, CA No. 1644/2009 @ SLP [C] No.6367 of
2008, CA No. 1645/2009 @ SLP [C] No.6368 of 2008, CA No. 1646/2009 @ SLP [C]
No.6369 of 2008, 2 CA No. 1647/2009 @ SLP [C] No. 6372 of 2008, CA No.
1648/2009 @ SLP [C] No.6373 of 2008, CA No. 1649/2009 @ SLP [C] No.6374 of
2008, CA No. 1650/2009 @ SLP [C] No.6375 of 2008, CA No. 1651/2009 @ SLP [C]
No.6376 of 2008, CA No. 1652/2009 @ SLP [C] No.6377 of 2008, CA No. 1653/2009 @
SLP [C] No.6378 of 2008, CA No. 1654/2009 @ SLP [C] No.6379 of 2008, CA No.
1655/2009 @ SLP [C] No.6380 of 2008, CA No. 1656/2009 @ SLP [C] No.6381 of
2008, CA No. 1657/2009 @ SLP [C] No.6382 of 2008, CA No. 1658/2009 @ SLP [C]
No.6383 of 2008, CA No. 1659/2009 @ SLP [C] No.6384 of 2008, CA No. 1660/2009 @
SLP [C] No.6385 of 2008, CA No. 1661/2009 @ SLP [C] No.15831 of 2008, and CA
No. 1662/2009 @ SLP [C] No.15859 of 2008.
Nos.1674-1686/2009 [@ SLP(C) Nos.3271 to 3283 of 2008].
R.V. RAVEENDRAN, J.
Leave granted in the
special leave petitions. These appeals are filed by Union Territory of
Chandigarh (for short `UT Chandigarh'). C.A. Nos.1994 3 of 2006 and 1995 of
2006 are filed against a common order dated 21.2.2005 passed by the National
Consumer Disputes Redressal Commission ("National Commission" for
short). Other appeals are filed against the common order dated 21.2.2007 passed
by the National Commission following the earlier order dated 21.2.2005. By
these orders, the lease premium installments have been rescheduled and certain
reliefs have been granted in regard to interest, to the lessees - respondents
(who had secured leasehold interest in sites belonging to UT Chandigarh in
public auctions held by it).
FACTS OF THE CASE
2. As the facts are
similar, we will refer to the facts of only one case (CA No.1994/2006 arising
from FA No.499/2003 on the file of the National Commission). The Estate
Officer, Union Territory Chandigarh Administration issued an advertisement
notifying the auction of 74 residential sites and 71 commercial sites in
different sectors of Chandigarh, on leasehold basis subject to the General
Terms and Conditions regarding auction. The relevant terms were :- (i) The
auction was for grant of a lease of sites for 99 years. The auction was
governed by the provisions of the Capital of Punjab (Development & 4
Regulation) Act, 1952 (`Development Act' for short) and Chandigarh Leasehold
Sites & Building Rules, 1973 (`Leasehold Rules' for short).
(ii) In addition to
the premium for lease (to be offered by bids), the lessee had to pay annual
rent at the rate of 2.5% of the premium for the first 33 years, liable to be
raised to 3.375% of the premium for the next 33 years and 5% of the premium for
the remaining 33 years;
(iii) 25% of the bid
amount had to be paid by demand draft or cash at the fall of the hammer. The
remaining 75% premium could be paid either in a lump sum with 30 days of the
auction without any interest, or at the option of the lessee, in three equated
annual installments along with interest at 10% per annum, the first installment
becoming due on the expiry of one year from the date of auction.
(iv) If the installments
of the lease of premium or the ground rent were not paid on the due dates,
interest at the rate of 24% per annum should be paid from the due date to date
(v) The successful
bidder should complete the construction of the building on the plot within
three years from the date of auction in accordance with the Punjab Capital
(Development & Regulation) Building Rules, 1952 (`Building Rules' for
short) (vi) The government would not be responsible for leveling of uneven
5 (vii) In the event
of default, breach or non compliance of any of the terms and conditions of
lease, the lease was liable to be cancelled and the site/building resumed and
the amount paid to government towards premium/rent forfeited either wholly or
(viii) The lessee was
liable to pay all taxes and fees as may be levied by the Chandigarh
Administration in respect of the site and the building to be constructed
3. Respondents 1 to 4
were the successful bidders in regard to plot No.173 in Sector No.39C & D
at the auction held on 18.12.1996. The lease premium bid offered by them was
Rs.20,45,000. The acceptance of the bid cum confirmation of the lease of the
plot was communicated to respondents 1 to 4 by letter dated 19.5.1997 (for
short `letter of allotment') enclosing therewith a letter offering possession
of the leased site. The said letter of allotment acknowledged the receipt of Rs.511,250
towards 25% of the premium and permitted the respondents to pay the balance 75%
of the premium with 10% interest thereon in 3 equated installments of
Rs.6,16,736/- on 18.12.1997, 18.12.1998 and 18.12.1999. It also required the
respondents to pay annual ground rent of Rs.51125/- during the first 33 years
of lease. The letter of allotment set out and reiterated the terms and
conditions of lease and 6 required the respondents to enter into a lease deed
within six months and take possession of the site before the lease deed is
4. The respondents
filed a complaint before the Consumer Disputes Redressal Commission, Union
Territory, Chandigarh (for short `UT Commission') under the Consumer Protection
Act, 1986 (`Act' for short) in the year 1999. In the said complaint they
alleged that in addition to the initial payment of Rs.511250/- towards the
lease premium, they had paid Rs.616,736/- plus Rs.51,125/- on 9.1.1998,
Rs.168,000/- on 4.3.1999 and Rs.200,000/- on 12.5.1999. They alleged that the appellant
did not provide any amenities in regard to the site, and as a result they had
suffered huge losses. They contended that until the basic amenities were
provided, the appellants were not legally entitled to claim the balance of
premium or the annual rent. They sought the following directions to the
(i) Not to recover
the balance amount of premium or the interest on the premium or the ground rent
until the basic amenities (approach road, sewerage, ground water, street light,
electricity, parking space) were provided.
(ii) To provide the
basic amenities so as to enable them to raise a construction on the site.
(iii) To pay
compensation of Rs.10 lacs for harassment and blocking of various payments made
7 (iv) To pay
interest at the rate of 18% per annum on the amounts paid by them, from the
date of payment till all the basic amenities were provided.
5. The appellants
filed a reply resisting the complaint. It was submitted that the respondents,
having accepted the terms and conditions of lease contained in the conditions
of auction and the letter of allotment were not entitled to wriggle out of the
contract terms or refuse to pay the balance. It was also contended that the
respondents were liable to pay the 75% balance premium in three annual installments
and in addition pay interest @ 24% per annum on the delayed installments. The
appellants submitted that they had not made any representation to the public in
general or the respondents in particular that the plots auctioned were `fully
developed' plots or that the plots are situated in fully developed areas; nor
was payment of premium or rent subject to Chandigarh Administration providing
any `basic amenities'.
respondents could not link the issue of payment of installments or ground rent
with the issue of basic amenities. It was also submitted neither the terms of
lease nor the provisions relating to auction of leasehold rights in the
Development Act and the Leasehold Rues, cast any obligation upon the appellants
to provide the basic amenities required by the respondents and 8 ensure that
the site auctioned was situated in a fully developed area; and that the auction
was on "as is where is" basis and the bidders were fully aware of the
situation and condition of the site for which they were bidding, as also the
terms and conditions subject to which the auction was held. The appellants also
contended that the complaint was not maintainable.
6. The U.T.
Commission allowed the complaint by the respondents, alongwith other similar
complaints, by a common order dated 31.3.2003 with the following directions :
(i) The date of
auction for the purpose of payment of price shall be deemed to be date on which
plinth level and all the basic amenities demanded in the complaint cases are
(ii) An officer of
the rank of Chief Engineer (or next rank) of UT Chandigarh shall certify that
the plinth level as well as other basic requirements/amenities were provided.
The date of such certificate shall be considered to be the date of auction.
(iii) The installments
shall be rescheduled accordingly and the remaining price of the plots shall be
deposited after rescheduling the installments without any change in the bid
(iv) The lease rent
shall be payable from the date of certificate of the Chief Engineer mentioned
(v) Interest on the
amount due by the lessee shall be payable only from the date the aforesaid
certificate is issued.
(vi) The amount
deposited by the complainants shall earn interest @ 18% per annum till the
essential requirements were provided.
9 [Note: Providing
of "plinth level" directed by UT Commission apparently refers to
filling up of low lying sites so as to bring them to the road level.]
7. Feeling aggrieved,
the appellants filed an appeal before the National Commission. The National
Commission allowed the appeal in part by a common order dated 21.2.2005, and
modified and restricted the reliefs granted by the U.T.Commission as follows :
(1) The Chandigarh
Administration shall reschedule the recovery of three installments and recover
the same on (i) 1.5.2005, (ii) 1.5.2006 and (iii) 1.5.2007.
shall pay interest @ 10% on the installment amounts from the date of taking
possession of the plot. This would be in conformity with condition No.5 of the
allotment letter which provides that balance of 75% of the premium is to be
paid with 10% interest.
(3) The complainants
shall also pay the ground rent as per the prevailing rules.
However, the National
Commission made it clear that:
(a) No penalty shall
be levied for delayed payment of installments or ground rent as the complaints
were pending with the State Commission which had ultimately granted relief to
(b) In respect of the
premium installments payable on 1st May, 2005, 2006 and 2007, complainants
shall pay interest @ 10% and in case of any default in payment of installments
as above, it would be open to the appellants to recover interest as per the
8. The facts of the
other appeals are also similar. Only the plot numbers/dates/amounts vary. CA
No.1995/2006 arises out of FA No.500/2003 disposed by the said common order
dated 21.2.2005. All other appeals arise from a common order dated 21.2.2007 of
the National Commission which was passed in terms of the earlier order dated
21.2.2005, the only change being to alter the dates of rescheduled installments
as 1.5.2007, 1.5.2008 and 1.5.2009. The orders dated 21.2.2005 and 21.2.2007 of
the National Commission are challenged in these appeals.
GROUNDS OF CHALLENGE
9. The appellants
have urged the following common contentions in these appeals :
(i) When the auction
of sites (for grant of a lease for 99 years) was in exercise of the power of
the government (UT Chandigarh Administration) under the provisions of the
Development Act in accordance with the Leasehold Rules, it involves neither sale
of goods nor rendering of any service. The act of leasing plots by auction by
the appellants therefore did not result in the successful bidder becoming a
`consumer' or the appellants 11 becoming `service providers'. In the absence
of hiring or availing of any service, the question of deficiency in service or
unfair or restrictive trade practice with reference to a service, did not arise
and the complaint under the Act was not maintainable.
(ii) There was no
obligation on the part of the appellants, either statutory or contractual, to
provide the `basic amenities' demanded by the respondents with reference to the
lease of sites by public auction. The payment of the premium (which was
permitted to be paid in installments on the request of the successful bidder)
and the annual rent was not conditional upon the UT Chandigarh providing any
basic amenities. Payment of the amounts due could not be postponed on the
ground of absence of amenities. Nor could payment of default interest be
avoided, once there was default. Therefore, even assuming that the complaint
was maintainable, the National Commission was not justified in interfering with
the terms of the contract of lease and giving relief in regard to interest,
which was legally due.
Re : first contention
10. A `complaint' is
maintainable before a consumer forum under the Consumer Protection Act, 1986,
by a `complainant' ('consumer' or others 12 specified) against a `trader' or
`service provider'. The terms `complainant' `complaint' `consumer' `trader' and
`service' are defined in clauses (b),(c), (d),(q) and (o) of Section 2 of the
Act. Therefore, a consumer forum will have jurisdiction only when : (i) the
complainant is a `consumer' as defined in clause (d) or a person specified in
clause (b) of section 2 of the Act; (ii) the respondent is a `trader' as
defined in clause (q) or a provider of `service' as defined in clause (o) of
section 2 of the Act; and (iii) the `complaint' relates to any of the matters
specified in clause (c) of section 2, for obtaining any relief provided by
order under the Act. It therefore follows that where the complainant is not a
`consumer' (or a person specified in clause (b) of section 2), or where the
respondent is not a `trader' or 'service provider' or where the complaint does
not relate to matters enumerated in clause (c) of Section 2 of the Act, the
consumer forum will have no jurisdiction either to entertain any complaint or
grant any relief under the Act.
11. The respondents
relied upon the decisions in Lucknow Development Authority v. M.K. Gupta - 1994
(1) SCC 243, Sector - 6, Bahadurgarh Plot Holders Association v. State of
Haryana - 1996 (1) SCC 485, Ghaziabad Development Authority v. Balbir Singh -
2004 (5) SCC 65 and Municipal Corporation, Chandigarh & Ors. v. Shanti Kunj
Investment (P) Ltd. and Ors.
13 - 2006 (4) SCC
109, to contend that the complaints were maintainable and relief sought could
be granted. We may straight away note that the decisions in Bahadurgarh and
Shantikunj will not be of any assistance to decide the issue of
maintainability, as those cases did not relates to complaints under the Consumer
Protection Act, but arose out of writ petitions.
11.1 In Lucknow
Development Authority v. M.K.Gupta [1994 (1) SCC 243] this Court held that if
the nature of duty or function performed was a service as defined under the
Act, then the provider of the service, irrespective of whether it is a private
body or statutory or a public authority, would be amenable to the provisions of
the Act. This Court held :- "As pointed out earlier the entire purpose of
widening the definition (of `service' under section 2(o) of the Consumer
Protection Act) is to include in it not only day to day buying and selling
activity undertaken by a common man but even such activities which are
otherwise not commercial in nature yet they partake of a character in which
some benefit is conferred on the consumer. Construction of a house or flat is
for the benefit of person for whom it is constructed. He may do it himself or
hire services of a builder or contractor. The latter being for consideration is
service as defined in the Act. Similarly when a statutory authority develops
land or allots a site or constructs a house for the benefit of common man it is
as much service as by a builder or contractor. The one is contractual service
and other statutory service. If the service is defective or it is not what was
represented then it would be unfair trade practice as defined in the Act.
Any defect in
construction activity would be denial of comfort and service to a consumer.
When possession of property is not delivered within stipulated period the delay
so caused is denial of service. Such disputes or claims are not in respect of
immovable property as argued but deficiency in rendering of service of
particular standard, quality or grade. Such deficiencies or omissions are
defined in sub-clause (ii) or clause (r) of Section 2 as unfair trade practice.
xxxxx Therefore if such authority undertakes to construct building or allot
houses or building sites to citizens 14 of the State either as amenity or as
benefit then it amounts to rendering of service and will be covered in the
expression `service made available to potential users'. A person who applies
for allotment of a building site or for a flat constructed by the development
authority or enters into an agreement with a builder or a contractor is a
potential user and nature of transaction is covered in the expression `service
or any description'. It further indicates that the definition is not
exhaustive. The inclusive clause succeeded in widening its scope but not
exhausting the services which could be covered in earlier part. So any service
except when it is free of charge or under a constraint of personal service is
included in it."
11.2 In Ghaziabad
Development Authority v. Balbir Singh [2004(5) SCC 65] this Court held :-
"Thus the law is that the Consumer Protection Act, 1986 has a wide reach
and the Commission has jurisdiction even in cases of service rendered by statutory
and public authorities. Such authorities become liable to compensate for
misfeasance in public office i.e. an act which is oppressive or capricious or
arbitrary or negligent provided loss or injury is suffered by a citizen. The
Commission/Forum must determine that such sufferance is due to mala fide or
capricious or oppressive act. It can then determine the amount for which the
authority is liable to compensate the consumer for his sufferance due to
misfeasance in public office by the officers. Such compensation is for
vindicating the strength of the law. It acts as a check on arbitrary and
capricious exercise of power. It helps in curing social evil.
It will hopefully
result in improving the work culture and in changing the outlook of the
officer/public servant. No authority can arrogate to itself the power to act in
a manner which is arbitrary. Matters which require immediate attention should
not be allowed to linger on. The consumer must not be made to run from pillar
to post. Where there has been capricious or arbitrary or negligent exercise or
non-exercise of power by an officer of the authority, the Commission/Forum has
a statutory obligation to award compensation."
12. The decisions in
Lucknow Development Authority and Ghaziabad Develoopment Authority make it
clear that where a public development 15 authority having invited applications
for allotment of sites in a lay out to be formed or for houses to be
constructed and delivered, fails to deliver possession by forming the lay out
of sites or by constructing the houses within the stipulated period, the delay
may amount to a deficiency in service by treating the development authority as
a service provider and the allottee as the consumer. But where existing sites
are put up for sale or lease by public auction by the owner, and the sale/lease
is confirmed in favour of the highest bidder, the resultant contract relates to
sale or lease of immovable property.
There is no hiring or
availing of services by the person bidding at the auction.
Nor is the seller or
lessor, a trader who sells or distributes `goods'. The sale price or lease
premium paid by the successful bidder of a site, is the consideration for the
sale or lease, and not consideration for any service or for provision of any
amenity or for sale of any goods.
13. In Lucknow
Development Authority, it was held that where a developer carries on the
activity of development of land and invites applications for allotment of sites
in a developed layout, it will amount to `service', that when possession of the
allotted site is not delivered within the stipulated period, the delay may
amount to a deficiency or denial of service, and that any claim in regard to
such delay is not in regard to the immovable property but in regard 16 to the
deficiency in rendering service of a particular standard, quality or grade. The
activity of a developer, that is development of land into layout of sites,
inviting applications for allotment by assuring formation of a lay out with
amenities and delivery of the allotted sites within a stipulated time at a
particular price, is completely different from the auction of existing sites
either on sale or lease. In a scheme for development and allotment, the
allottee has no choice of the site allotted. He has no choice in regard to the
price to be paid. The development authority decides which site should be
allotted to him. The development authority fixes the uniform price with reference
to the size of plots. In most development schemes, the applications are invited
and allotments are made long before the actual development of the lay out or
formation of sites. Further the development scheme casts an obligation on the
development authority to provide specified amenities.
developer represents that he would provide certain amenities, in the Brochure
or advertisement. In a public auction of sites, the position is completely
different. A person interested can inspect the sites offered and choose the
site which he wants to acquire and participate in the auction only in regard to
such site. Before bidding in the auction, he knows or is in a position to
ascertain, the condition and situation of the site. He knows about the
existence or lack of amenities. The auction is on `as is where 17 is basis'.
With such knowledge, he participates in the auction and offers a particular
bid. There is no compulsion that he should offer a particular price.
When the sites
auctioned are existing sites, without any assurance/representation relating to
amenities, there is no question of deficiency of service or denial of service.
Where the bidder has a choice and option in regard to the site and price and
when there is no assurance of any facility or amenity, the question of the
owner of the site becoming a service provider, does not arise even by applying
the tests laid down in Lucknow Development Authority or Balbir Singh.
14. Where there is a
public auction without assuring any specific or particular amenities, and the
prospective purchaser/lessee participates in the auction after having an
opportunity of examining the site, the bid in the auction is made keeping in
view the existing situation, position and condition of the site. If all amenities
are available, he would offer a higher amount. If there are no amenities, or if
the site suffers from any disadvantages, he would offer a lesser amount, or may
not participate in the auction. Once with open eyes, a person participates in
an auction, he cannot thereafter be heard to say that he would not pay the
balance of the price/premium or the stipulated interest on the delayed payment,
or the ground rent, on the ground that the 18 site suffers from certain
disadvantages or on the ground that amenities are not provided. With reference
to a public auction of existing sites (as contrasted from sites to be
`formed'), the purchaser/lessee is not a consumer, the owner is not a `trader'
or `service provider' and the grievance does not relate to any matter in regard
which a complaint can be filed. Therefore, any grievance by the
purchaser/lessee will not give rise to a complaint or consumer dispute and the
fora under the Act will not have jurisdiction to entertain or decide any
complaint by the auction purchaser/lessee against the owner holding the auction
Re : Second
15. The complaint by
the respondents proceeded on the assumption that there was an obligation on the
part of the appellants to provide amenities in the nature of approach road,
water supply lines, drainage system, rainwater drainage and electricity and
that unless such amenities were provided, they were not liable to pay the
premium or interest on the premium or the ground rent. As noticed above,
neither the terms and conditions of auction, nor the advertisement relating to
the auction, nor the letter of allotment contained any assurance regarding
provisions of any such amenities with reference to the sites put up for
auction. To get over the absence of such term or assurance, the respondents
relied upon the definitions of the words `site' and `amenity' 19 in the
Development Act and the provisions of the Leasehold Rules to contend that there
was a statutory obligation to provide the amenities and failure to provide such
amenities gave a cause of action to approach the Consumer Forum with a
complaint against the appellants and also withhold payment of the premium installments
and ground rent. On the other hand, the appellants contend that they had no
obligation, either contractual or statutory, to provide amenities of any
nature, with reference to the auction of the leasehold rights of sites and the
lack of amenities or alleged non-provision of amenities cannot be a ground for
withholding the premium and rent.
16. In view of the
rival contentions, it becomes necessary to refer to the relevant provisions of
the Development Act and the Leasehold Rules.
16.1) The Development
Act re-enacts and modifies the law in relation to the development and
regulation of new capital of Punjab. Section 2(j) defines `site' as meaning
`any land' which is transferred by the Central Government under section 3.
Section 3 relates to the power of Central Government in respect of transfer of
land and buildings in Chandigarh. Sub-section (1) thereof provides that subject
to the provisions of the said section, the central government may sell, lease
or otherwise transfer, whether by auction, 20 allotment or otherwise, any land
or building belonging to the government in Chandigarh on such terms and conditions
as it may subject to any rules that may be made under the Act, think fit to
impose. Sub-section (2) thereof, provides that the consideration for any
transfer under sub-section (1) shall be paid to the central government in such
a manner and in such installments and at such rate of interest as may be
16.2) The term
`amenity' is defined in section 2(b) of the Development Act as follows :
includes roads, water-supply, street lighting, drainage, sewerage, public
building, horticulture, landscaping and any other public utility service
provided at Chandigarh".
Section 4 relates to
power to issue directions in respect of erection of building. Section 5 relates
to bar to erection of buildings in contravention of building rules. The term
`amenity' is significantly not used in section 3 which relates to transfer of
land by sale or lease by the government. The term `amenity' is referred only in
sections 6 and 7 which are extracted below :
"6. Power to
require proper maintenance of site or building. - If it appears to the Chief
Administrator that the condition or use of any site or building is
prejudicially affecting the proper planning of, or the amenities in, any part
of Chandigarh or the interests of 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.
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 free or tax for
the time being leviable under any other law) in respect of any site or building
on the transferee or occupier thereof.
(2) If the central
government considers it necessary or expedient so to do having regard to the
fact that the transferee or occupier is a religious or charitable institution
or that he does not enjoy the amenity for which any fee or tax is levied, the
central government may, by general or special order, exempt wholly or partly
any class of such transferees or occupiers from the payment of fees or taxes
levied under sub-section (1)."
Neither Sections 6
and 7 nor any other provision of the Development Act casts any obligation on
the central government to provide amenities to plots sold/leased by public
auction. Therefore the assumption that there is a statutory obligation on the
part of the Central Government to provide amenities, because the word `amenity'
is defined in the Act is erroneous and baseless. As noticed above, the word
`amenity' is used in the context of two specific matters. The first is that the
transferee/occupier of a site should not use the site or leave it in a
condition that it will prejudicially affect the amenities in any part of
Chandigarh (vide section 6). The second is that central government can levy
fees/taxes in respect of any site/building, on the transferee/occupier for the
purpose of providing, maintaining or continuing any amenity at Chandigarh. Thus
definition of the `amenity' in the Development Act, does not in any manner cast
any obligation on Chandigarh 22 administration with reference to the auction
of leasehold rights relating to sites belonging to central government.
16.3) Section 22 of
the Development Act empowers the Central Government to make rules for carrying
out the purposes of the Act, in particular and among others : (a) the terms and
conditions on which any land or building may be transferred by the (central
government) under this Act; (b) the manner in which consideration money for any
transfer may be paid; (c) the rate of interest payable, and the procedure for
payment of installments, interest, fees, rents or other dues payable under this
Act; (d) the terms and conditions under which the transfer of any right in any
site or building may be permitted; (e) erection of any building or the use of
any site; (f) levy of fees or taxes under Section 7 of the Act.
16.4) The Leasehold
Rules were made in 1973 in regard to lease of properties by UT Chandigarh. We
extract below the relevant rules :- "3. (2). `premium' means the price
paid or promised for the transfer of a right to enjoy immovable property under
Chandigarh Administration may demise sites and buildings at Chandigarh on lease
for 99 years. Such leases may be given by allotment or by auction in accordance
with these Rules.
xxx xxx 23
6. Commencement and
period of lease. - The lease shall commence from the date of allotment or
auction as the case may be, and shall be for a period of 99 years. After the
expiry of said period of 99 years the lease may be renewed for such further
period and on such terms and conditions as the Government may decide.
8. Lease by
allotment, Procedure for : xxx (not relevant) x x x
9. Lease by auction,
procedure for.--In case of auction, at least 25 per cent of the bid accepted by
the auctioning officer shall be paid on the spot by the intending lessee in the
prescribed mode of payment in accordance with Rule 12:
Provided that the
Estate Officer may, in his absolute discretion, allow the successful bidder to
deposit in the prescribed mode of payment not less than 10 per cent of the bid
on the condition that the difference between the amount deposited and 25 per cent
of the bid shall be deposited in the same manner within 30 days of auction.
9A Extension of
period : xxx (not relevant) xxx
10. Delivery of
possession.--Actual possession of the site/building shall be delivered to the
lessee on payment of 25 per cent of the premium in accordance with Rule 8 or
Rule 9 as the case may be:
Provided that no
ground rent payable under Rule 13 and interest on the installments of premium
payable under sub-rule (2) of Rule 12 shall be paid by the lessee till the
actual and physical possession of the site/building is delivered or offered to
be delivered to him, whichever is earlier.
11. Premium.--(1) In
case of allotment, the premium shall be such amount as may be determined by the
(2) In case of auction,
the premium shall be the bid accepted by the Estate Officer, as a result of
bidding in open auction.
12. Payment of
premium and consequences of non-payment or late payment.--(1) In addition to
payment of 25 per cent premium under Rule 8 or 9 as the case may be, the
remaining 75 per cent premium may be paid in lump sum within 30 days from the
date of allotment/auction without any interest.
24 (2) If payment is
not made in accordance with sub-rule (1) of this rule, the balance of the 75
per cent premium shall be paid in three annual equated installments or more as
the Chief Administrator may in exceptional circumstances of a case fix with
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:
(3) x x x (Not
relevant) x x x (3-A) In case any equated installment or ground rent or part
thereof is not paid by the lessee by the date on which it became payable he
shall be liable to pay in respect of that installment or ground rent or part
thereof as the case may be, interest calculated at the rate of twenty-four per
cent per annum from the date on which the installment or ground rent became
payable till such date it is actually paid.
13. Rent and
consequences of non-payment.--In addition to the premium, whether in respect of
site or building, the lessee shall pay rent as under -- (i) Annual rent shall
be 2 = per cent of the premium for the first 33 years which may be enhanced by
the Chandigarh Administration to 3 > per cent of the premium for the next 33
years and to 5 per cent of the premium for the remaining period of the lease.
(ii) Rent shall be
payable annually on the due date without any demand from the Estate Officer:
Provided that the
Estate Officer may for good and sufficient reasons extend the time for payment
of rent upto six 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.
17. The National
Commission has proceeded on erroneous and baseless assumptions that there is no
obligation to pay the installments until the amenities were provided and
consequently the installments could be rescheduled so as to begin after the
amenities were provided and that interest would start to run only when the
lessee takes possession. In view of the conflicting views of the High Court as
to whether installments are payable only after the government provides the basic
amenities, the National Commission circumvented the issue. It held that as the
appellant herein had however provided all the basic facilities by 1999 and the
matter had been pending thereafter before the Consumer fora, the three annual installments
would get postponed and commence only after its decision, that is from
1.5.2005, instead of the installment schedule specified by the appellants
(which commenced in 1997).
18. The conflict
referred to by the National Commission was with reference to the decisions of
the High Court in Shanti Kunj Investments Pvt. Ltd. v. U.T. Administration
Chandigarh reported in AIR 2001 P&H 309 (CWP No. 959/1999 decided on
2.2.2001) and in DLJ Builders (P) Ltd. v. 26 Advisor to the Administrator
Chandigarh Administration (CWP No. 13695 of 2001 dated 18.2.2002).
Investments related to an auction of leasehold rights of a site by the UT
Chandigarh. In that case, the lessee found large number of jhuggis, adjacent to
the plot which were not removed inspite of his repeated requests. He also found
no amenities such as road, water, landscaping etc.
Therefore the lessee
filed a writ petition before the High Court seeking relief.
The High Court
declared that the UT Chandigarh having failed to provide the basic amenities,
its order of resumption and forfeiture could not be sustained and therefore
liable to be set aside. The High Court further directed that all amenities
should be provided within three months and no interest shall be charged from
the allottees if they pay the entire outstanding amount within three months
from the date of providing amenities.
18.2) On the other
hand, in its subsequent decision in DLG Builders Pvt. Ltd. v. Advisor to the
Administratotr, Chandigarh Admn. (CWP No. 13695/2001 dated 18.2.2002) the High
Court had held :- "In our opinion, the judgment in M/s. Shanti Kunj
Investment Pvt. Ltd.'s case (supra) has to be read in the light of the peculiar
facts brought before the court and the same cannot be read as laying down the
proposition that the allottee is not required to pay the insalments of premium
with interest and ground rent in accordance with the terms and conditions of
allotment and Rule 12 of the Rules till each and every amenity enumerated in
Section 2(1) is made available at the site. The obligation of the
Administration to provide approach road, water supply, electricity, 27
sewerage, storm water drainage can be read as implicit in the scheme of the Act
and the Rules, but it cannot be said that the allottee is entitled to withhold
the payment of installments on the ground of lack of particular amenity at the
site. If the basic amenities, like water, electricity and approach road are not
available at the site and on that account it is not possible to construct the
building, the allottee can represent to the Administration that he may not be
burdened with the liability of ground rent and may not be penalized for non
construction within the specified time. After completion of building, he can
represent for waiver of ground rent in case facility of sewerage has not been
provided. However, after taking possession of the site and constructing the
building, he cannot avoid his obligation to pay the balance of the premium
along with interest and ground rent in accordance with the conditions of
allotment and the provisions of Rule 12 of the Rules on the pretext that land
scaping has not been done or pavement has not been tiled or the particular
public utility service has not been provided. In our considered view, the
allottee is bound to pay the balance premium and other charges in accordance
with the conditions of allotment."
18.3) The decision of
the High Court in Shantkunj Investments was challenged by the Chandigarh
Administration and Municipal Corporation of Chandigarh. The decision in DLG
Builders was challenged by the allottees.
They were disposed of
by this Court by a common judgment reported in Municipal Corporation,
Chandigarh v. Shantikunj Investments Pvt. Ltd. 2006 (4) SCC 109. This Court
noted that the conflict between the two decisions of the High Court were in
regard to the question whether providing of amenities as defined in Section
2(b) of the Development Act was a condition precedent for payment of installments
and charging interest. After examining the provisions of the Act and the
relevant rules, this Court rejected the 28 contentions of the lessees and held
that the High Court's view in Shantikunj could not be sustained. This Court
held :- "On a plain reading of the definition "amenities" read
with Rule 11(2) and Rule 12, it cannot be construed to mean that the allottees
could take upon themselves not to pay the lease amount and take recourse to say
that since all the facilities were not provided, therefore, they are not under
any obligation to pay the installment, interest and penalty, if any, as
provided under the Act and the Rules. ...... It has never been the condition
precedent. It is true that in order to fully enjoy the allotment, proper
linkage is necessary. But to say that this is a condition precedent, that is
not the correct approach in the matter. ...... It is true the word,
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 allottees/ 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 right to use the
immovable property which has been leased out to them on payment of premium i.e.
the price..... It is the common experience that for full development of an area
it takes years.
It is not possible in
every case that the whole area is developed first and allotment is served on a
platter. Allotment of the plot was made on an as- is-where-is basis and the
Administration promised that the basic amenities will be provided in due course
of time. It cannot be made a condition precedent. This has never been a
condition of the auction or of the lease.
As per the terms of
allotment upon payment of the 25 per cent, possession will be handed over and
rest of the 75 per cent of the leased amount to be paid in a staggered manner
i.e. in three annual equated installments along with interest at the rate of 10
per cent. If someone wants to deposit the whole of the 75 per cent of the
amount he can do so. In that case, he will not be required to pay any interest.
But if a party wants to make payment within a period of three years then he is
under the obligation to pay 10 per cent interest on the amount of installment.
This is the obligation on the part of the allottee as per the condition of
lease and he cannot get out of it by saying that the basic amenities have not
been provided for enjoying the allotted land, therefore he is not liable to pay
We asked the learned
counsel for the parties to tell us which is the obligation of the lessor in the
lease deed which says that they will not charge interest on the installments
before providing the amenities. There 29 is neither any condition in the lease
nor any obligation under the auction.
If the parties have
given their bids an with their eyes wide open, they have to blame themselves.
It cannot be enforced by any mandamus as there is no obligation contained in
the lease deed or in the auction-notice."
Therefore, it is
evident that a lessee/successful bidder cannot seek reschduling of the installments
of premium or postponement of accrual of the interest payable as per rules.
19. The equated installment
includes interest only upto the dates stipulated as due dates. When the installments
are not paid on the due dates, the lessees become liable to pay penal interest
at 24% per annum from the due date to date of actual payment (vide clause 4 of
General Term & Conditions of Auction and clause 5 of Letter of allotment
and Rule 12(3A) of the Leasehold Rules). We may also refer to two decisions of
this Court in the context of interest.
20. In Sector-6,
Bahadurgarh Plot Holders' Association (supra), the issue that arose for
determination was whether the allottee could refuse to pay interest on the installments
of the price on the ground that the site had not been fully developed by
providing all the modern amenities as assured. The issue did not arise in a
complaint under the Consumer Protection Act, but in a 30 writ petition filed
by the allottees challenging the charging of interest and requiring the
authority to complete the development. The allottees contended that what was
offered was allotment of developed sites and not undeveloped sites; that they
were informed that "all modern amenities like underground sewerage, storm
water drainage, roads, electricity, supply of potable water"
will be provided;
that as the sites were not developed fully and as possession of "developed
sites" was yet to be given, the state government could not charge
interest. The state government, on the other hand, contended that charging of
interest was not correlated to the delivery of possession under the Punjab
Urban Estates Sale of Rights Rules, 1965 and having regard to Rule 12(2) of the
Rules, interest accrued from the date of issue of an allotment order.
Interpreting the said provisions, this Court held that while interest could not
be demanded till possession was offered, it was not necessary that such offer
should be of fully developed plots. This Court held :- "As the offer had
stated that modern amenities noted above "will be provided", it
cannot be held that till the amenities as mentioned have become fully
functional, the offer is incomplete. It is for this reason that the fact that
full development has not yet taken place, even if that be the position as
contended by Shri Bhandare, cannot be a ground to hold that interest has not
become payable. It is true that the applicants were given to understand that
the amenities noted above would become available (and within reasonable time),
the fact that the same did not become available to the desired extent could not
be a ground not to accept delivery of possession. From the order of the High
Court which we have quoted above, we find that the offer of possession of the
undeveloped plot was not accepted by the counsel of the appellant. That order
being of 17-10-1980, we are of the view that interest did become payable from
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 31 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."
If interest could not be denied to the state government even where there was an
assurance of all "modern amenities", it is needless to say that the
claim of the government will be much more stronger, when there is no assurance
at all, as in this case.
21. In regard to
default interest, we may refer to the following observations of this Court in
Secretary, Bhubaneswar Development Authority v. Susanta Kumar Mishra (C.A.No. 605/2009
decided on 30.1.2009) "Each equated installment would then have a
principal component and interest component. As the equated installments would
include interest on the principal only up to the due date of installment,
whenever there is a default, there can be no dispute that the `principal' part
of the installment could be subjected to interest from the date of default to
date of payment.
It is no doubt true
that when the defaulted installment in entirety is subjected to interest, the
`interest' component of the defaulted installment is also subjected to
interest. To that limited extent, there may be charging of interest upon
interest. Charging of such interest, on the interest part of the installment,
on default in payment of the installment, at a reasonable rate from the date of
default, cannot be termed as charging of compound interest in regard to the
entire dues. It is only a provision to ensure that the dues (installments) are
paid promptly and avoid misuse of the concession given by permitting payment in
installments. But for such a provision, lessees/allottees who have already been
given possession, will be tempted to delay payments, thereby leading to
continuous defaults. A statutory development authority, working on no profit no
loss basis, can ill afford to permit such continuous defaults by
lessees/allottees, which will paralyse 32 their very functioning, thereby
affecting future developmental activities for the benefit of other members of
the general public. Therefore a provision for interest as contained in clause 6
of the lease-cum-sale agreement is neither inequitable nor in terrorem. Where
the basic rate of interest is itself very high, or where interest is charged on
the entire price instead of charging interest on the reducing balance, when working
out the equated installments, or where the rate of interest on default is
punitively excessive, the position may be different. But no such case is made
out by the respondent."
22. In this case,
having regard to the provisions in the leasehold Rules and contractual terms
(as contained in the General terms and conditions of auction lease and the
letter of confirmation of lease cum offer of possession), the following
position is evident :
(i) Interest at 10%
per annum is payable from the date of auction till date of payment on the
balance of premium (if the lessee chooses to pay the 75% of premium in installments).
(ii) Payment of
interest has nothing to do with provision of amenities.
(iii) If the premium
interest on ground rent is not paid on the due date, then interest will be
payable at 24% P.A. from the date of default (due date) to date of payment.
(iv) The lessee will
not be liable to pay interest on the premium installments or the rent, till the
actual and physical possession of the site is delivered or offered to be
delivered to the lessee (whichever date is earlier).
lessees-respondents, however, placed strong reliance on the following
observations and directions in para 38 of the decision of this Court 33 in
Shantikunj (supra) to contend that commencement of interest could be postponed
:- "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 not been
provided, no relief shall be granted but in case any of the facilities had not
been provided, then the High Court may examine the same and consider grant of
proportionate relief in the matter of payment of penalty under Rule 12(3) and
interest for delay in payment of equated installment or ground rent or part
thereof under Rule 12(3-A) only.
We repeat again that
in case the above facilities had not been granted then in that case consider
grant of proportionate relief and if the facilities have been provided then it
will not be open on the part of the allottees to deny payment of interest and
penalty. So far as payment of installment is concerned, this is a part of the
contract and therefore, the allottees are under obligation to pay the same.
However, so far as the question of payment of penalty and penal interest is
concerned, that shall depend on the facts of each case to be examined by the
High Court. The High Court shall examine each individual case and consider
grant of proportionate relief."
observations and directions were apparently on the special facts and
circumstances of that case. As noticed above, in Shantikunj, the auction was of
the year 1989. The Lessee had approached the High Court in its writ
jurisdiction in the year 1999 seeking amenities. Even in 2006 when this Court
heard the matter, it was alleged that the amenities had not been provided. It
is in those peculiar facts that this Court obviously thought fit to give some
reliefs with reference to penal interest wherever amenities had not been 34
provided at all even after 17 years. In fact, this court made it clear while
remanding to High Court that wherever facilities/amenities had been provided
before the date of the judgment (28.2.2006), the lessees will not be entitled
to any reliefs and where the facilities/amenities had not been granted even in
2006, the High Court may consider giving some relief by proportionate reduction
in penal interest. This direction was apparently on the assumption that in case
of penalty, the court can grant relief in writ jurisdictions.
24. But the facts of
this case are completely different. The auction sale was in December 1996. The
National Commission has recorded a finding that almost all the
facilities/amenities had provided in the year 1999, that is within about two
years. Therefore, the observations of this court in para 38 of Shantikunj will
have no applications to these cases, particularly as they were made in the
context of a writ proceeding, whereas we are concerned with a proceedings under
Consumer Protection Act. We may also refer to another aspect. Section 7 of the
Act empowers the Central Government to levy such fees and 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 the occupier thereof, for the purpose of providing, maintaining
or continuing any amenity at Chandigarh. This 35 provision clearly demonstrates
that the providing amenities is not linked to auction of plots on lease basis
and the premium paid is not for providing any amenity. The Central Government
is required to provide amenities by levying fees and taxes in respect of
sites/plots on the transferees/ occupiers thereof.
Therefore, it is
doubtful whether any proportionate reduction in penal/default interest could be
made on the ground of non-provision of amenities. Be that as it may. As we have
already held that para 38 will not apply, we do not propose examine that aspect
any further in these cases.
25. The respondents
lastly contended that the rate of default interest was only 12% per annum under
Rule 12(3A) of the Leasehold Rules as on the date of the auction and therefore
clause (4) of the General Terms &
Conditions of Sale
and clause (5) of the letter of allotment, providing for payment of default
interest @ 24% per annum was illegal and unauthorized.
This contention is
urged for the first time in this court. The appellants countered by contending
that the Administrator had by notification, fixed the default interest at 24%
per annum. Suffice it to say that the rate of default interest mentioned in
Rule 12(3A) as on the date of auction, would alone apply. If Rule 12(3A) was
not amended increasing the rate of default interest from 12% P.A. to 24% per
annum as on the date of auction, then the 36 rate of interest stipulated in
Rule 12(3A) as it stood on the date of auction will apply. The appellants could
not charge default interest at a rate higher than what was provided in the said
rule. If any higher rate has been charged by way of default interest and it is
not corrected, it is open to the lessees to seek relief in accordance with law.
26. We may note that
the appellants raised one more contention that the complaints were not
maintainable against the government can never be considered as a `service
provider' under the Act. As such a contention was not raised either before the
UT Commission or National Commission, we do not propose to examine the said
contention in these appeals.
27. The appellants
thus succeed on both grounds. We, therefore, allow these appeals by UT
Chandigarh and set aside the orders dated 21.2.2005 and 21.2.2007 of the
National Commission in the matters which are the subject matter of these
appeals and dismiss the respective complaints filed by the respondents as not
CA Nos.1674-1686 of
2009 [@ SLP [C] Nos.3271-3283 of 2008]
28. Leave granted.
The lessees-complainants have filed these appeals against the common order
dated 21.2.2007 of the National Commission seeking further relief. They contend
that the National Commission ought to have further directed the UT Chandigarh
not to charge interest on the premium installments nor claim the ground rent
until the basic amenities were provided. They also contend that as the basic
amenities were not provided on the date of delivery of possession of the sites,
but were provided only in 1999, their liability to pay ground rent and interest
on premium installments would start only with effect from 25.10.1999.
29. We have
considered and rejected these contentions while dealing with the appeals by UT
Chandigarh. In view of the dismissal of their complaints, these appeals do not
survive and are dismissed.
[R. V. Raveendran]