R.L. Anand, J.
1. Sh. Rajan Gupta and Miss Kajal Gupta has filed the present writ petition against the respondent under Article 226/227 of the Constitution of India and it has been prayed by the petitioners that directions in the nature of mandamus to refund a sum of Rs.1765064/- along with interest at the rate of 24 per cent, be given to the respondents. Further it has been prayed by the petitioners that respondents be restrained from charging ground rent lease money and interest on the amount as they failed to perform their statutory duties in not delivering the possession in time to the petitioners.
2. The case set up by the petitioners is that Chandigarh Administration auctioned the residential Plot No. 1057 situated in Sector 21-B, Chandigarh in an open auction on 19.11.1997. The petitioners were successful in their bid for the purchase of the said plot of an area measuring 249.375sq. yards for Rs.32 lacs and also paid Rs. 8 lacs being 25% of the sale consideration immediately at the fall of the hammer.
3. Respondent No.2 Estate Officer, U.T.Chandigarh issued the allotment letter dated 26.12.1997 to the petitioners Annexure P-l, mentioning therein the terms and conditions of the allotment and showing the amount of bid money amounting o Rs.32 lacs and also showing the payment of Rs.8 lacs being 25% and three instalments of Rs.9.65,064/-each to be paid and falling due on 49.11.1998, 19.11.1999 and 19.11.2000. Besides this, the ground rent annually for first 33 years was Rs.80,000/- per annum. According to the petitioners, as per the terms and conditions of the allotment letter and according to the rules called. 'The Chandigarh Lease Hold of Sites and Buildings Rules 1973' the actual possession of the site was to be delivered to the petitioners on payment of 25% of the premium, meaning thereby that immediately after deposit of 25% of the premium within the stipulated period, the petitioners became entitled for delivery of possession of the site in question. After the issuance of the above said allotment letter, the petitioners approached the Estate Officer, U.T. Chandigarh for the delivery of the possession of the plot purchased in open auction and vide letter dated 26.12.1997, the Estate Officer wrote to the Executive Engineer, C.P. Division No.7, Chandigarh for delivering the possession of the plot to the petitioners but till today the possession of the plot has not been delivered to the petitioners despite several visits made by them to the office of Executive Engineer personally. In spite of personal visits, the petitioners have also made several representations to the respondents for delivering actual physical possession but respondents have turned their deaf ears to the genuine problems of the petitioners. In this regard reliance was placed by the petitioner on Annexure P-2. After the issuance of the allotment letter as well as the letter directing the Executive Engineer for the delivery of the possession of the plot, the Surveyor informed that a number of trees are standing in the plot and so long as the trees are removed from the plot, the demarcation cannot be carried out. Moreover, pitches have developed and huge grass has grown there and that it was not possible to take the possession of the plot as demarcation could not be carried out so far. The petitioners in this regard also wrote a letter dated 21.3.1998 to the Estate Officer Annexure P.3, It is also the case of the petitioners that they again wrote a letter dated 25.5.1998, to the Estate Officer for the removal of the trees from the site in question so that the demarcation of the plot could be made and possession could be delivered to the petitioners and that the petitioners may be in a position to start the construction without any further loss of time but to no effect. Annexure P-4 is the letter in this regard. It is further stated by the petitioners mat they had purchased the plot for erecting the building thereon for dwelling purposes but till today the petitioners have not been able to get the possession of the plot and what to speak of the construction thereon. On 15.7.1998, the petitioners issued a notice to the respondents for the delivery of the physical possession of the plot without any further delay and also requested that the lease money may not be charged from them from the date of the auction till the actual physical possession is delivered. In spite of the fact that the petitioners have spent a huge amount for the purchase of the plot in open auction they have not been able to get the physical possession of the site on account of the standing tress which had obstructed the respondents authorities in making the demarcation and the delivery of the possession to the petitioners, with this background it is grouse of the petitioners that respondents have auctioned the plot without providing the basic amenities and demarcation which is against the provisions of the Capital of Punjab (Development and Regulation) Act, 1952 and the Lease Hold of Sites and Building Rules, 1973. It was the duty of the respondents to deliver the actual physical possession of the plot to the petitioners who had already paid huge amount to the respondents. When the petitioners did not receive any satisfactory response from the side of the respondents, they were compelled to file a complaint before the Consumer Disputes Redressal Commission, Chandigarh on 2.6.1999 but those proceedings were adjourned sine die on 28.8.2000 to await the decision of National Commission on the question of jurisdiction of the State Commission. It has been pleaded by the petitioners that due to the inaction on the part of the respondents, the petitioners had to suffer financially, physically and mentally. They have suffered a great loss due to the non-delivery of the possession of the site in question, as a result of which the petitioners were not in a position to raise the construction. They should not be allowed to suffer due to inaction and omission on the part of the respondents. The petitioners had been pressing hard from the very beginning for actual physical possession of the site in question but on one pretext or the other the possession could not be delivered by the respondents and in these circumstances, the petitioners have no other option but to surrender the site in question. There was a culpable negligence on the part of the respondents when they did not deliver the possession of the site in question to the petitioners. A sum of Rs.1,7,65,064/- has been wrongly withheld by the respondent authorities without any fault of the petitioners and that the petitioners are entitled to refund of the same along with interest thereon. With these allegations the petitioners have made a prayer that writ in the nature of mandamus be issued against the respondents for the refund of Rs. 17,65,064/- alongwith interest at the rate of 24% per annum and that the respondents be restrained from charging the ground rent, lease money and interest thereon.
4. The notice of the writ petition was given to the respondents. They filed reply and denied the allegations. A preliminary objection was taken that the petitioners had already approached the Consumer Disputes Redressal Commission for the redressal of their grievances and for claiming the same relief the said complaint is still pending for adjudication and as such this writ petition is liable to be dismissed because two remedies cannot be availed of by the petitioners. It was also pleaded by the respondents that no cause of action has arisen to the petitioners for filing the present writ petition. The petitioners are liable to make payment of the actual dues in accordance with the terms of allotment and the relevant rules.
5. On merits, the stand of the respondents is that allotment letter was issued to the petitioners on 26.12.1997 and along with the same the possession was also offered. The petitioners did not take the possession as the petitioners firstly made a request for the removal of the trees existing at the site and accordingly the answering respondent requested the Executive Engineer, Horticulture Division No.1, Chandigarh to remove these trees immediately. The copy of the said letter is Annexure R.I. It is further stated that as.intimated by the Assistant Landscaping Officer, Horticulture Sub Division No.2, * Chandigarh vide Memo No.722 dated 31.3.02 the said trees have been removed and the site is clear. The respondents submitted that it is wrong to allege that no action was taken by the respondents despite several alleged visits made by the petitioners. It is also the stand of the respondents that the site in question is now free from all the encumbrances and the petitioners have already been requested to get the possession of the site. All the basis amenities had already been provided at the site. The trees have already been removed- With this broad defence, the respondents have prayed for the dismissal of the writ petition.
6. Both the parties have placed some documents on record and it will be useful for us to make a reference to those relevant documents for the purpose of adjudication of the present writ petition..
7. Annexure P-l is the allotment order dated 26.12.1997 which was issued by the respondent authorities with reference to the auction held on 19.11.1997. The reading of this allotment letter would also show that this site was auctioned for the purpose of construction of a residential building. Annexure P-2 is the letter issued by the Chandigarh Administration to the Executive Engineer dated 26.12.1997 with a copy to the petitioners to obtain the possession of the plot on any working day from the Executive Engineer. Annexure P-3 is the letter issued by the petitioner Sh. Rajan Gupta to the Estate Officer on 21.3.1998 in which there is a clear averment by the petitioner that he had already deposited a sum of Rs.8 lacs at the fall of the hammer on 19.11.1997 and when he approached the Surveyor for the demarcation of the plot and for the delivery of the possession he was informed by the Surveyor that a number of trees were existing on the plot in question and till those trees are removed from the plot, the demarcation could not be done. Yet this very stand was reiterated by the petitioners in the shape of reminder Annexure P-4 dated 25.5.1998 wherein it was specifically alleged by the petitioners that they contacted the Surveyor for the demarcation who showed his inability to demarcate the plot on account of the fact that the trees had not been removed. With this background a request was made to the Estate Officer for the cutting of the trees. Annexure P-5 is a copy of the notice dated 15.7.1998 issued by Sh. Om Parkash Ahluwalia, Advocate, to the Estate Officer in which it was stated that the number of times it was requested by the petitioners that physical possession of the plot in question be handed over to them but despite that the possession of the plot has been delayed on the ground that number of trees were standing in the plot in question. Annexure P-6 is another letter dated 15.10.1998 in which the similar grounds has been reagitated regarding the non-delivery of the possession on account of the standing trees. Annexure P-7 would further indicate that on 10.12.1998 a sum of Rs.9,65,064 was paid by the petitioners to the Estate Officer being the amount of 2nd instalment. When the petitioners could not get the possession of the plot, on 15.9.1999, they had to write a letter to the respondent authorities mentioning therein that they were not interested to keep the plot any more and thereby surrender the same to the Estate Officer and further request was made for the refund for the amount after deduction if any provided under the rules.
8. Against the documents of the petitioners, the respondents have also placed on record letter Annexure R-1 dated 24.8.1999 written by the Estate Officer to the Executive Engineer vide which it was requested to the Executive Engineer to remove the trees falling in plot No.1057 situated in Sector 21-B, Chandigarh as the allottees were pressing hard. So much so, it was mentioned in this letter that allottees have also gone to the Consumer Court and the case has been fixed for hearing on 3.8.1999. Annexure R-2 is the other letter written by the Assistant Landscaping Officer to the Estate Officer, Chandigarh vide which it was intimated that 4 trees sanding in Plot No.1057, Sector-21-B, Chandigarh, had been removed and the site is clear. This letter was written on 31.3.2002.
9. We have heard Sh. Ravinder Chopra, Advocate appearing on behalf of the petitioners and Shri Ajay Tewari, Advocate, appearing on behalf of the respondents and with their assistance have gone through the record of the case.
10. The admitted facts are that Plot No.1057 situated in Sector 21-B was a residential plot which was sold by the respondent authorities for a consideration of Rs.32 lacs against which the first instalment of Rs.8 lacs was received by the respondent authorities at the time of auction. This plot was purchased by the petitioners in order to construct a residential house and if the possession of the site in question is not delivered to the allottees after making proper demarcation how they will be able to raise the construction. We all know that with the lapse of every single day the cost of construction rises. In these circumstances, it was the legal responsibility of the respondents to deliver the possession of the site in question after clearing all hurdles in the shape of the removal of the trees and then to give proper demarcation to the petitioners so that he petitioners may be able to proceed further into the matter in order to raise the construction of the residential house on the site in question. Several formalities were still to be required to be completed by the petitioners in the shape of getting water connection, electric connection, and approval of the site plan and then they have to arrange the material and the labour for the construction of the site in question. If the petitioners within a reasonable time has not been delivered the possession, it will be considered as a lapse and negligence and breach of contract on the part of the respondents for which the petitioners cannot be held responsible. The chain for correspondence would sow that the petitioners have not committed any default in the payment of the amount. They have deposited Rs.8 lacs at the first instance and they further paid a sum of Rs.9 lacs and odd vide two drafts clearly indicating that they had the intention to purchase the plot. They had not committed any breach of the contract nor they have shown any unwillingness to take the possession of the site had it been offered to them without a reasonable time. They had been writing and pressing hard upon the respondent authorities for the delivery of the possession and demarcation after the removal of a number of trees which were standing at the site. Even from the correspondence placed on record by the respondent, it will be clear that on 24.8.1999 it was written by the Estate Officer to the Executive Engineer for the removal of the trees as the allottees had been pressing hard for the removal of those trees and that the matter is pending before the Consumer Court. Annexure R-2 is the letter which is dated 313.2002 vide which the Assistant Landscaping Officer had intimated to the Estate Officer mat four trees standing in Plot No. 1057, Sector 21-B, Chandigarh had been removed and the site is clear. Removal of the trees and making the site demarcation after a lapse of five years, cannot be held to be a reasonable period. The allottees of the site cannot be compelled to wait for a period of five years because within this span of five years, the costs of construction must have gone double which will be a prejudicial to the proposed remedy of the petitioners who must have thought it how much money they were going to spend for the construction of the house in not delivering the possession and giving the demarcation of the site in question within a reasonable time by the respondent authorities. This would lead to only inference that there was breach of terms of allotment from the side of respondents and they cannot be allowed to take the advantage of their own wrongs by extending threats that the money stands forfeited. Such an action and attitude on behalf of the respondents would be considered as unfair and arbitrary and cannot be accepted in any civilised society much less in a democracy where the people are governed by rule of law and not by men as observed in one of the decisions, passed by the Division Bench of this Court in CWP No.5038 of 2000. We are of the considered opinion that at this juncture when the respondents have committed inordinate delay in the delivery of the possession, the petitioners are not obliged to take the possession of the site in question. The withholding of the money of the petitioners by the respondent authorities is totally arbitrary and is an illegal act. We are of the considered opinion that the petitioners are entitled to the refund of the amount along with interest as the money has been withheld by the respondent authorities in an unreasonable manner. Therefore, the respondents are directed to refund the amount along with interest at the rate of 12% per annum and interest shall be calculated on the disputed amount after six months of the various deposits. The petitioners shall also be entitled to costs of the writ petition which are hereby assessed at Rs.5,000/-. The writ stands allowed in the above terms.