State of Punjab and Others v. Dhanjit Singh Sandhu
M.Y. EQBAL, J. 1. These appeals are directed against the
judgment and order dated 8.1.2009 passed by the Punjab &
Haryana High Court in C.W.P. No.8864 of 2007 and also order
G dated 27.3.2009 passed in Review Petition No. 112 of 2009,
whereby the writ petition filed by the respondent was allowed
and the order dated 23.12.2004 passed by appellant no.3
rejecting the application for refund of the extension fee received
by the appellant in excess of the rates mentioned in Rule 13 of
H the Punjab Regional and Town Planning and Development Act,
STATE OF PUNJAB AND OTHERS v. DHANJIT 1127
SINGH SANDHU [M.Y. EQBAL, J.]
1995 (in short '1995 Act') in the light of the judgment passed A
in C.W.P. No.13648of1998 (Tehal Singh vs. State of Punjab
& Ors.) along with up-to-date interest has been set aside.
2. The facts of the case lie in a narrow compass.
3. The respondent was allotted a plot of land measuring 8
400 square yards bearing No.2177 at Durgi Road, Urban
Estate Phase-II, Ludhiana vide allotment letter dated 1.4.1986.
In terms of allotment, the respondent was required to complete
the construction of building within three years from the date of
issuance of the allotment letter after getting the plans of the C
proposed building approved by the competent Authority. The
case of the respondent-writ petitioner is that there was no
condition in the allotment letter for charging extension fee in the
case of failure to complete construction of the building within
the aforementioned period of three years nevertheless as per D
clause 15 of the allotment letter, the allotment was subject to
the provisions of Punjab Estates (Development and Regulation
Act), 1964 and the Rules and Policies framed thereunder.
4. It appears that in the year 1995, the State of Punjab E
came with the legislation known as Punjab Regional and Town
Planning and Development Act, 1995 (in short 'PUDAAct'). By
the said Act, the Punjab Urban Estate (Development and
Regulation) Act 1964 (in short '1964 Act') and Punjab Housing
Development Board Act, 1972 were repealed. In exercise of F
power conferred under the Act, the State Government framed
rules called the Punjab Regional and Town Planning and
Development (General) Rules 1995 (in short '1995 Rules')
which was published vide Notification dated 22nd August,
1995. Rule 13 of the Rules specified the time within which the
building is to be constructed. It also provides for extension of G
time limit subject to payment of prescribed fee mentioned
therein.
5. The Punjab Urban Planning and Development Authority
(in short 'PUDA') issued a circular dated 15.1.1998 revising the H
A rate of extension fee chargeable for the residential and
commercial plots and by the said circular a very high rate of
extension fee was proposed to be charged. The respondent
from time to time deposited the extension fee so demanded
by the appellant. It is alleged that an amount of Rs.1.20 lacs
B has been in excess charged from the respondent. The
appellant's case is that the appellant in an attempt to nullify the
effect of the judgment rendered in Tehal Singh's case and to
validate the demand of enhanced rate of extension fee
purportedly framed the Rules called Punjab Regional and Town
c Planning and Development (General) Second Amendment
Rules, 2001 (in short '2001 Rules') giving retrospective effect.
6. The respondent moved a writ petition being C.W.P. No.
7934 of 2004 praying inter alia for the directions to refund the
excess fee charged from the respondent. It was disposed of
D with the directions to the appellant to reconsider the
representation and to dispose of the same in the light of the
order passed in C.W.P. No.13648 of 1998 (Tehal Singh's
case). In compliance with the aforesaid directions, the
respondent's representation was considered and came to be
E rejected by the appellant vide order dated 23.12.2004 on the
ground that in the facts and circumstances of the case the
instant case was not similar to Tehal Singh's case.
7. The writ petition was finally heard by the Punjab and
F Haryana High Court and relying on the ratio decided in Tehal
Sing's case (supra) disposed of the writ petition, quashed the
notice and directed the appellant to calculate the extension fee
as per Rule 13 of 1995 Rules. For better appreciation, the
concluding paragraphs 15 to 17 of the impugned order are
G quoted hereinbelow:-
"15. When the facts of the present case are examined in
the light of the principle laid down by the Division Bench
judgment in Tehal Singh's case (supra), we are left with
no doubt that the show cause notices issued to the
H petitioner on 19.9.2006 (P-4) and 12.12.2006 {P-7}
STATE OF PUNJAB AND OTHERS v. DHANJIT 1129
SINGH SANDHU [M.Y. EQBAL, J.)
requiring him to pay extension fee of Rs. 1,32,958/- was A
violative of the provisions of the 1995 Act and Rule 13 of
the 1995 Rules, as has already been noticed in the
preceding paras. The controversy, in fact, stand settled by
the Division Bench judgment in Teha/ Singh's case (supra)
and the issue does not deserve to be reopened. The B
respondents have failed to consider the reply filed by the
petitioner wherein judgment rendered by the Division
Bench in Tehal Singh's case (supra) has been cited and
the charging of extension fee at exorbitant rate has been
duly answered. c
16. In view of above, the writ petition succeeds. The
impugned notice dated 12.12.2006 (P-7) is hereby
quashed. The respondents are directed to calculate the
extension fee as per Rule 13 of the 1995 Rules. The
needful shall be done within a period of two months from D
the date of receipt of a certified copy of this order. The
petitioner shall pay the extension fee within a period of two
months from the date of receipt of the calculation given in
the fresh notice to be issued by the respondents. The
petitioner shall further be entitled to consequential benefit E
to get the site plans approved. The petitioner is also held
entitled to his costs.
17. The other connected writ petitions are also disposed
of in the above terms. It is, however, clarified that in cases F
such as C.W.P. Nos. 8864 and 13765 of 2007, where the
petitioners have already paid the extension fee as per the
rates demanded by the respondents, which are exorbitant
and against the Division Bench judgment of this Court in
Tehal Singh's case, the respondents are directed to re- G
calculate the amount of extension fee as per the provisions
of Rule 13 of the Rules and refund the over-payment
alongwith interest 10% per ann!Jm."
8. We have heard Mrs. Rachna Joshi lssar, learned
counsel appearing for the appellant. H
9. As noticed above, the plot in question was allotted to
the respondent vide an allotment letter dated 1.4.1986. In terms
of the allotment letter, the allottee had to fulfill the terms and
conditions enumerated in the said letter. The terms and
conditions of the said allotment are extracted hereinbelow:-
"1. Plot No. 2177 Phase-II measuring 400 sq. yds. in
Durgri Rd. Urban Estate has been allotted to you. The
tentative price of the said plot is Rs. 51,000/-
2. The plot is preferential one and additional price at the
rate of 10% of the original normal price is Rs.
3. Total price of the plot (normal) plus preferential is Rs.
51,000/-
4. The above price of the plot is subject to variation with
reference to the actual measurement of the site as well as
in cost of enhancement of compensation by the court or
otherwise and you shall have to pay the additional price
of the plot if any, determined by the department, within 30
days of the date of demand of in case of sale by allotment.
5. You shall have to convey your acceptance/refusal unless
you refuse to accept the allotment by a registered AID letter
within 30 days of the issue of this allotment order and have
to pay 15% of the sale price amounting of Rs. 4750/- or
such other amount with together with the amount already
paid equal to at least 25% of the sale price of the site. In
case of failure to deposit the sale amount the allotment
shall be liable to be cancelled and earnest money already
paid forfeited.
6. In case you refuse to accept the allotment through
acknowledgment due registered letter addressed to the
undersigned within 30 days of the date of issue of allotment
order. You will be entitled to the refund of the earnest
STATE OF PUNJAB AND OTHERS v. DHANJIT 1131
SINGH SANDHU [M.Y. EQBAL, J.]
money A
7. On payment of 100% of the purchase price of the plot
you shall have to execute in deed of conveyance in the
prescribed from in such manner as may be directed by the
Estate Officer. B
8. Balance 7.5% of the purchase price shall be payable
either lump-sum within 60 days of the issue of allotment
order without any interest or in four 2 six monthly equated
instalment alongwith interest at the rate of 7% per annum
The first installment shall fall due after the expiry of six C
months from the date of issue of allotment order and shall
be payable on the 10th of the month following in which it
falls due.
9. Each remittance shall be remitted to the Estate Officer D
by means of demand draft payable to him drawn on any
Scheduled Bank situated at the nearest place to the Estate
Officer. Each such remittance shall be accompanied by a
letter showing particulars of the site i.e. plot No. allotment
No. and date of issue of allotment order etc. In the absence E
of these particulars, the amount shall not deem to have
been received.
10. You shall have to pay separately for any building
material trees, structures and compound wall etc. existing
in the plot at the time of allotment for which compensation F
has been assessed and paid by the Government in x case
you want to make use of the same, failing which the
government shall have the right remove or dispose of the
same even after-the delivery of possession.
11. The allotment shall be liable to cancellation in case of
the declaration made in the application for the allotment
of the plot is established to be incorrect.
12. You shall have to complete the building within three
years from the date of issue of allotment order, after getting
the plans of the proposed building approved by the
competent authority.
13. The Government shall not be responsible for leveling
the uneven sites.
14. No allottee under this policy shall dispose of his plot
for period of ten years from the date of transfer of the
ownership to him. However the transfer of residential plot
in the Urban Estate shall be allowed to be made in case
of death of the allottee in favour of his hairs.
However, the transfer can be allowed before the
expiry of ten years, in exceptional cases, with the prior
approval of the Government. In case an allottee
contravenes provisions of this para, the plot will be
resumed and price paid may be forfeited by the
Government.
15. The allotment is subject to the provision of the Punjab
Urban Estates (Development & Regulation) Act, 1964 and
rules and policy framed thereunder as amended from time
to time and you shall have to accept and abide by the
provision of the Act/ Rules/ policy. "
10. Further, it is clear that the allotment of the plot was
F subject to the provisions contained in the 1964 Act. Section
1 O of the Act envisages provision for resumption and forfeiture
of the land in case of breach of conditions of allotment. Section
10 reads as under:-
"10. Resumption and forfeiture for breach of conditions
of transfer.- (i) 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 of any other
condition of such sale, the Estate Officer may, by notice
STATE OF PUNJAB AND OTHERS v. DHANJIT 1133
SINGH SANDHU [M.Y. EQBAL, J.)
in writing, call upon the transferee to show cause why A
an order of resumption of the site or building, or both,
as the case may be, and forfeiture of the whole or
any part of the money, if any, paid in respect thereof
(which in no case shall exceed ten per cent of the total
amount of the consideration money, interest and other B
dues payable in respect of the sale of the site or building,
or both) should not be made".
11. In exercise of power conferred by 1964 Act, Rules were
framed in the year 1965 i.e. Punjab Urban Estate (Development C
and Regulation) Rules, 1964. Rule 14 of the said Rules
categorically provided that the transferee shall complete the
building within three years from the date of issue of the allotment
letter. In accordance with the Rules and Regulations of erection
of the building, the time limit may be extended by the Estate
Officer if he is satisfied that failure to complete the construction D
of the building within the said period was due to the reasons
beyond the control of the allottee.
12. Since the respondent-allottee failed to abide by the
terms and conditions and did not raise construction, he was E
liable to pay non-construction fee/extension fee which was
demanded from him in order to enable him to avoid resumption
of the plot to the appellant-authority. The aforesaid demand
was made by letters dated 6.1.1997 and 27.10.1999. The said
letter dated 6.1: 1997 is extracted hereinbelow:- F
"PUNJAB URBAN, PLANNING DEVELOPMENT
AUTHOR, SECTOR -32, SAMARALA ROAD, PUDA
COMPLEX, LUDHIANA REGISTERED
To,
D.S. Sandhu Superintending Engineer (PWD) Office of the
Chief Engineer, PWD B&R, Patna
No. PUDA/E.O./Ludhiana (Endst. No. 2177)96/34478
Dated 06.01.97, H
Sub: Regarding payment of balance installment
resumption of plot of Urban Estate D Road, Sector/ Phase-
11 at Ludhiana, residential/ commercial plot no. 2177. area
400.
With regard to the above subject.
2. Res. 26712/- the detail of which is given below is
recoverable from you as balance of residential/commercial
plot No. 2177, Urban Estate, D road, Sector/Phase-II, at
Ludhiana. Therefore, deposit a bank draft of this amount
alongwith 18%interest per annum which should be in
favour of Estate Officer, PUDA, Ludhiana and may be
payable at any scheduled bank upto 31.01.97 in all
circumstances and appear before the undersigned on the
date at 11.00 a.m. in case of failure to do so, action would
be initiated for resumption of allotment of plot under the
conditions of allotment and under Punjab Regional and
Town Planning and Development Act, 1995 and the rules
made thereunder and no other opportunity would be given
to you.
1 ............ amount of balance installments.
2. amount of enhanced compensation
3. extension fee 26712/-
4. interest
5. penalty
Total 26712
Sd/- Estate Officer
In English PUDA,
Ludhiana."
13. In response to the aforesaid letter dated 6.1.1997, the
respondent agreed to pay the extension fee imposed by the H
STATE OF PUNJAB AND OTHERS v. DHANJIT 1135
SINGH SANDHU [M.Y. EQBAL, J.]
Estate Officer of the appellant authority in order to avoid A
resumption/auction of the plot.
14. Meanwhile, the State of Punjab enacted Punjab
Regional and Town Planning and Development Act, 1995.
Rules were also framed under the said Act. By Section 183 B
of 1995 Act, earlier Act of 1964 and Punjab Housing
Development Board Act, 1972 were repealed with the saving
clause.
15. Subsequent to the aforesaid Act, by Notification dated
30.6.1995, Punjab Urban Development Authority was C
established w.e.f. 1. 7.1995 and the Board stood abolished with
effect from that date. Many other Acts were also repealed. By
the said Act Authority was empowered to deal with the land and
prescribe the fee in case where extension of period for
completion of building is set for by the allottee. D
16. Since the High Court passed the impugned order
following the decision rendered by the Punjab & Haryana High
Court in Tehal Singh's case, it would be proper to refer the facts
of that case.
17. In Teha/ Singh vs. State of Punjab and Ors. (C.W.P.
No.13648 of 1998), the petitioner filed the writ petition seeking
a writ for quashing certain letters demanding extension fee and
striking down condition No.19 of allotment letter, insofar as it
relates to the charging of separate extension fee for non
completion of construction of building. Further mandamus was
sought for directing the respondents to charge extension fee
from the petitioner under the provisions of Rule 13 of 1995
Rules. The High Court after referring various provisions of 1995
Acts and Rules made thereunder observed as under:-
"A conjoint reading of the various provisions of the 1995
Act and the 1995 Rules shows that the transfer of land
under sub-section (1) of Section 43 is not only subject to
the directions which may be given by the State Government H
under the 1995 Act but also the conditions which may be
prescribed with regard to completion of building of part
thereof and with regard to extension of period for such
completion and payment of fee for such extension. A
perusal of rule 13 of the 1995 Rules along with Section
180 (2) (i) and Section 2 (zc) of the 1995 Act shows that
the time within which the building is to be completed and
other related matters are governed by the 1995 Rules.
Therefore, with the coming into force of these Rules, the
rates of extension fee prescribed by the Board stood
superseded and in terms of sub-rule (2) of Rule 13 of the
1995 Rules, the petitioners became eligible to seek
extension of the specified time limit subject to payment of
the fee prescribed under sub-rule (3) of Rule 13."
18. The Court further came to the following conclusions:
"We have thoughtfully considered the respective
submissions. In our opinion, Shri Malhotra's contention on
the issue of applicability of the 1995 Act to the plots allotted
to the petitioners is clearly wide of the margin. A bare
reading of the plain language of sub-section (4)of Section
183 of the 1995 Act makes it clear that the allotment of
Section 183 of the 1995 Act makes it clear that the
allotment made by the erstwhile Board will be deemed to
have been made under the 1995 Act. Therefore, the
construction of the building will have to be regulated by the
conditions of allotment read with Rule 13 of the 1995 Rules.
As a logical corollary, the extension of the time limit
specified in the letter of allotment will also be governed by
the provisions of the 1995 Rules and the petitioners are
entitled to seek extension of the time limit by paying the
fee prescribed under Rule 13".
19. Consequently the Court declared the notices
demanding enhanced extension fee as illegal and ultra vires
to tha provisions of 1995 Act under the Rules made thereunder.
STATE OF PUNJAB AND OTHERS v. DHANJIT 1137
SINGH SANDHU [M.Y. EQBAL, J.]
20. It is worth to mention here that the aforesaid judgment A
rendered in Tehal Singh's case was challenged before the
Supreme Court in S.L.P. No.18500-18501 of 1999 and was
dismissed on 10.11.2000, but the said order of dismissal was
modified by the Supreme Court by order dated 12.2.2001 in
the following terms. s·
"In the facts and circumstances of the case the order does
not warrant in any interference of this Court. The appeals
are accordingly dismissed."
21. As noticed above, the facts are quite different from the C
facts in Tehal Singh's case. In the instant case, the
respondents-allottees accepted the terms and conditions of the
allotment letter and possession were taken but they did not
raise any construction upto 2000. There was a specific
condition that non-construction of building would lead to the D
resumption of the said plot under the provisions of the Acts and
the Rules. As noticed above, when the allottees did not raise
construction on the plot, the demand was raised for payment
of non-construction fee/extension fee in order to avoid
resumption of the plot by the Authority, allottee paid the E
extension fee. After availing the benefit of extension on
payment of extension fee, the allottee sent a letter to the Estate
Officer demanding refund of the extension fee on the basis of
amended Rule 13 of 1995 Rules. The said demand was
rejected by the Estate Officer by passing the reasoned order F
in compliance of the directions of the High Court. In the facts
of the instant case, we have no doubt in our mind in holding
that the ratio decided in Tehal Singh's case will not apply in the
instant case. In our considered opinion defaulting allottes of
valuable plots cannot be allowed to approbate and reprobate
by first agreeing to abide by terms and conditions of allotment G
and later seeking to deny their liability as per the agreed terms.
22. The doctrine of "approbate and reprobate" is only a
species of estoppel, it implies only to the conduct of parties.
As in the case of estoppel it cannot operate against the H
A provisions of a statute. (vide C./. T. vs. Mr. P. Firm Maur, AIR
1965 SC 1216).
It is settled proposition of law that once an order has been
passed, it is complied with, accepted by the other party and
8 derived the benefit out of it, he cannot challenge it on any
ground. (Vide Maharashtra State Road Transport Corporation
vs. Balwant Regular Motor Service, Amravati & Ors., AIR 1969
SC 329). In R.N. Gosain vs. Yashpal Dhir, AIR 1993 SC 352,
this Court has observed as under:-
C "Law does not permit a person to both approbate
and reprobate. This principle is based on the doctrine of
election which postulates that no party can accept and
reject the same instrument and that "a person cannot say
at one time that a transaction is valid and thereby obtain
o some advantage, to which he could only be entitled on the
footing that it is valid, and then turn round and say it is void
for the purpose of securing some other advantage."
23. This Court in Sri Babu Ram Alias Durga Prasad vs.
Sri Indra Pal Singh (Dead) by Lrs., AIR 1998 SC 3021, and
E P.R. Deshpande vs. Maruti Bairam Haibatti, AIR 1998 SC
2979, the Supreme Court has observed that the doctrine of
election is based on the rule of estoppal-the principle that one
cannot approbate and reprobate inheres in it. The doctrine of
estoppal by election is one of the species of estoppel in pais
F (or equitable estoppel), which is a rule in equity. By that law, a
person may be precluded by his actions or conduct or silence
when it is his duty to speak, from asserting a right which he
otherwise would have had.
G 24. The Supreme Court in The Rajasthan State Industrial
Development and Investment Corporation and Anr. vs.
Diamond and Gem Development Corporation Ltd. and Anr.,
AIR 2013 SC 1241, made an observation that a party cannot
be permitted to "blow hot and cold", "fast and loose" or
H "approbate and reprobate". Where one knowingly accepts the
STATE OF PUNJAB AND OTHERS v. DHANJIT 1139
SINGH SANDHU [M.Y. EQBAL, J.]
benefits of a contract or conveyance or an order, is estopped A
to deny the validity or binding effect on him of such contract or
conveyance or order. This rule is applied to do equity, however,
it must not be applied in a manner as to violate the principles
of right and good conscience.
25. It is evident that the doctrine of election is based on B
the rule of estoppel the principle that one cannot approbate and
reprobate is inherent in it. The doctrine of estoppel by election
is one among the species of estoppel in pais (or equitable
estoppel), which is a rule of equity. By this law, a person may
be precluded, by way of his actions, or conduct, or silence when C
it is his duty to speak, from asserting a right which he would
have otherwise had.
26. Be that as it may, so far as the instant case is
concerned, the High Court has totally overlooked the facts of o
the present case and allowed the writ petition. The impugned
order, therefore, cannot be sustained in law and is hereby set
aside. The appeals are accordingly allowed. However, in the
facts of the case, there shall be no order as to costs.
D.G. Appeals allowed. E