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CASE NO.: Appeal (civil)  1342 of 2006

PETITIONER: Municipal Corporation Chandigarh & Ors. Etc.     

RESPONDENT: M/s. Shantikunj Investment Pvt. Ltd. Etc.                

DATE OF JUDGMENT: 28/02/2006

BENCH: B.N.AGRAWAL & A.K.MATHUR

JUDGMENT: J U D G M E N T (Arising out of SLP(Civil) No. 12794/2001) WITH

CIVIL APPEAL NOS\005\005\005.OF 2006

[Arising out of SLP(Civil) Nos. 12935/2001, 12987/2001, 12995/2002,  13449/2001, 14289/2003, 16503/2001, 18353/2002, 18911/2002,  18978/2002, 22515/2002, 23737/2002, 23738/2002, 23941/2002,  2948/2003, 3601/2003, 5748/2003, 9178/2003 & 13640-13641/2004]  

[with SLP(Civil) No 22517/2002]

A. K. MATHUR, J.

       Leave granted.

       All these petitions involve common question of law, therefore, these  are taken up together for disposal by the common judgment.  

       In all these petitions, there are two class of petitions, one filed by the  private parties/individuals against the Division Bench judgment of the  Punjab & Haryana High Court whereby the Division Bench has not given  any relief following its  judgment  passed in CWP No.13695 of 2001 dated  18.2,2002 [M/s. D.L.G.Builders Private Limited vs. The Advisor to the  Administrator, Chandigarh Administration & Ors.]. The relevant portion of  that judgment reads as under:         "   In our considered view, the allottee is bound to pay  the premium  and other charges in accordance with the  conditions of allotment. If the judgment of M/s. Shanti  Kunj Investments Pvt. Ltd.(supra) is read as laying down   a proposition that the allottee is not obliged to pay the  balance of premium even after raising construction of the  building and occupying it on the pretext  that  beautification of the site has not been done or land-scaping  has not been provided or payment of the  tiles has not been  done, extremely anomalous consequences would follow  inasmuch as, the allottee would construct building and  utilize the same by renting out or otherwise and hereby  reap huge benefits, but would not pay a single penny  towards balance of premium and ground rent etc.  Therefore, while examining the complaint of the allottee  about the lack of amenities, what the Court is required to  consider is whether the basic amenities, electricity,  approach road, sewerage and drainage have been provided  in the area so as to facilitate construction  of the building

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within the specified time. If such amenities have been  provided, the Court will not interdict in the matter and  facilitate withholding  of the balance of premium, ground  rent etc. Rather, it would insist that all the dues of public  money are paid by the allottee in accordance with the  relevant rules/ regulations and conditions of allotment."

 Another class of cases in which the Municipal Corporation of Chandigarh  and the Chandigarh Administration have filed the special leave petitions  against the order passed by the Division Bench of the Punjab & Haryana  High Court against the judgment dated 2.2.2002 passed in M/s. Shantikunj  Investment Pvt. Ltd. and batch.  Relevant portion of the judgment reads as  under : "  They having failed to provide the basic amenities, the  order of resumption and forfeiture cannot be sustained.  The impugned orders are, consequently set aside. The  respondents are directed to provide the amenities in  accordance with law. The needful shall be done within  three months. No interest shall be chargeable from the  petitioners if they make the entire outstanding amount  within three months from the date of the provision of the  amenities."

               It would not be proper to refer to all individual cases because  various orders have been passed by the High Court from time to time but  largely, the cases have been divided into two class of cases i.e. one governed  by M/s. Shantikunj Investment Pvt. Ltd. and the other governed by M/s.  D.L.G. Builders Private Limited. We are only deciding the question in  principle and leaving the rest to be decided by the High Court. In all these petitions, the common question is whether grant of the  amenities is a condition precedent or not.  All the plots in question were  allotted by the Chandigarh Administration as well as the Municipal  Corporation of Chandigarh on certain terms and conditions of the sale of  residential and commercial sites & buildings by auction on lease for 99 years  and certain terms and conditions were laid down therein. But the challenge  in these various petitions filed before the Punjab & Haryana High Court was  that the basic amenities were not provided and, therefore, the Chandigarh  Administration and the Municipal Corporation of Chandigarh were not  entitled to charge interest @ 18% or 10%, as the case may be, on the  installment as well as non-payment of installment and non-payment of the  ground rents. Likewise, they cannot charge the penalty for delayed payment  at the rate of 10% and at the rate of   24% interest on the amount falling  short of equated instalment or part thereof and likewise on the ground rents.  

So far as the Division Bench of Punjab & Haryana High Court in the  case of Shanti Kunj Investment (supra)  held that providing of amenities is a  condition precedent to the payment of the interest and penalty.  As against  this, two Division Bench in the case of G.S. Khurana  vs. Chandigarh  Administration by order dated 18.2.2002 and in the case of DLG Builders  Pvt. Ltd. vs. The Advisor to the Chandigarh Administration have taken a  different view in the matter.    In Shanti Kunj, the Division Bench held that  grant of amenities is a condition precedent whereas, in the case of DLG  Builders and G.S. Khurana, it took a contrary view to the effect that it is not  a condition precedent.  This apparent contrary view has given rise to all the  litigation before this Court.  In order to resolve the inconsistent view of the  two Division Bench, we shall deal with the issue involved in the matter in a  great detail  hereinafter.   

In order to appreciate the controversy involved in the matter, we may  refer to few bare facts in the case of Municipal Corporation, Chandigarh &  Ors. vs. M/s. Shanti Kunj Investment  Pvt. Ltd. in SLP(Civil) No.  12794/2001.  Seven petitioners in the aforesaid petition were the allottees of  different commercial sites. The grievance was that the Chandigarh  Administration has failed to provide basic amenities/facilities  for use and  occupation of the sites sold to them.  It is alleged  that they are guilty of mal-

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administration.  They have arbitrarily charged the ground rent, interest  and  penal interest and they are resorting to the resumption of the sites for non- payment thereof. Therefore, all these petitioners filed joint petitions in the  High Court for redressal of their grievances.   

On February 12, 1989 the Chandigarh Administration auctioned a  godown site No. 290, Sector 26, Chandigarh.  The petitioner, along with two  brothers gave a bid for a premium of Rs. 22,10,000/-.  It was accepted and  they deposited 25% of the bid money, viz. Rs. 5,52,500/-.  The letter of  allotment was issued on March 16, 1989.  The site was given for 99 years on  lease-hold basis.    As per the terms of allotment, the petitioner had to pay  the amount along with interest @ 7% in three equal yearly installments of  Rs. 6,31,590/-.  This payment had to commence from the date of auction.   Besides that, the allottee had also to pay an annual ground rent @ 55,250/-   for the first 33 years.   The petitioner commenced the construction, but he  found that there were high voltage electric wires passing over the site.  The  sewerage system had not been laid on the site.  There were a large number of  Jhuggies adjacent to the place.  The petitioner submitted representation to  the Estate Officer with a request to remove the unauthorized Jhuggies and to  take necessary steps for providing the amenities.  But no amenities  such as  roads, water supply, landscaping etc. were provided.  It was alleged that  since the petitioner had paid the entire premium as provided under the Act  and Rules, therefore, no interest or ground rent can be charged till all the  amenities, as required under the Act and Rules, are provided.  Hence, with  this grievance, the petitioner approached the High Court.  The High Court  examined all the provisions and came to the conclusion that Chandigarh  Administration cannot charge interest @ 18%.  Though, initially the interest  was charged as 7%, but ultimately by notification it was increased to 10%.    It was held by the Division Bench that there was no notification for charging  the interest @ 18% and it was conceded before us that so far as this part of  the order is concerned, the Administration does not challenge and the  petitioner will be charged @ 10%.  

The other aspect was also examined by the Division Bench and they  gave an extended meaning to the definition as provided under Section 2(b)  ’amenities’ of the Capital of Punjab (Development and Regulation) Act,  1952 (hereinafter referred to as the ’Act’).  As against this, another Division  Bench in the case of DLG Builders (supra) took a contrary view and held  that no extended meaning of ’amenities’ as defined in Section 2(b) of the  Act can be given that providing  of facilities is a condition precedent for  charging of the interest.  

In order to appreciate the whole controversy involved in these cases, it  will be useful to refer to the necessary provisions of the Act and Rules  bearing on the subject.  The allotment of the site in question was given under  the Act and the Rules framed thereunder known as ’Chandigarh Lease-Hold  of Sites and Buildings Rules, 1973.  These provisions are applicable to both  sets of cases i.e. allotment of commercial sites as well as residential, made  by the Chandigarh Administration and Chandigarh Municipal Corporation.   Section 2 of the Act deals with definition.  Section 2(b) defines ’amenity’ as  under:

"2(b).  ’amenity’ includes roads, water-supply,  street lighting, drainage, sewerage, public building,  horticulture, landscaping and any other public  utility service provided at Chandigarh."

       Section 2(f) defines ’erect a building’ which reads as under:

"2(f).  ’erect a building’ has the same meaning as  ’erect or re-erect any building’ in the Punjab  Municipal Act, 1911 (Punjab Act III of 1911)."

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       Section 2(i) defines ’prescribed’ which means prescribed  by rules  made under this Act.  

Section 2(j) defines ’site’ which means any land which is transferred  by the Central Government under Section 3.   

Section 2(k) defines ’transferee’, which reads as under:

"2(k). ’transferee’ means a person (including a  firm or other body of individuals, whether  incorporated or not) to whom a site or building is  transferred in any manner whatsoever, under this  Act and includes his successors and assigns."

                Section 5 of the Act provides a bar to erection of buildings in  contravention of buildings rules.   

Section 6 lays down power to require proper maintenance of site or  building which reads as under:

   "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 interest 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."    

       Section 7 provides for Levy of fee or tax for amenities which reads as  under:

"7. Levy of fee or tax for amenities. \026(1) For the  purposes of providing maintaining or continuing  any amenity at Chandigarh the [Central  Government] may levy such fees or taxes as it may  consider necessary which shall be in addition to  any fee or tax for the time being leviable under any  other law in respect of any site or building on the  transferee or occupier thereof."

                                          Section 8 provides for imposition of penalty and mode of recovery of  arrears.  Section 8-A provides for resumption and forfeiture for breach of  conditions of transfer which reads as under:   

"8-A.  Resumption and forfeiture for breach of  conditions of transfer. (1) If any transferee has  failed to pay the consideration money or any  instalment thereof on account of the sale of any  site or building or both, under section 3 or has  committed a breach of any other conditions of such  sale, the Estate Officer may, by notice in writing,  call upon the transferee to show cause why 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

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thereof which in no case shall exceed ten per cent  of the total amount of the consideration money,  interest and other dues payable in respect of the  sale or the site or building, or both should not be  made.    (2)  After considering the cause, if any, shown by  the transferee in pursuance of a notice under sub- section (1) and any evidence he may produce in  support of the same and after giving him a  reasonable opportunity of being heard in the  matter, the Estate Officer may, for reasons to be  recorded in writing, make an order resuming the  site or building or both, as the case may be, so sold  and directing the forfeiture as provided in sub- section (1), of the whole or any part of the money  paid in respect of such sale."  

       The relevant rules which have been framed in exercise of this Act  under power conferred by Sections 3 and 22 by the Act of 1952 are known  as ’Chandigarh Lease-Hold of Sites and Buildings Rules, 1973’ (hereinafter  referred to as the ’Rules’).

       Rule 3(2) defines ’premium’ which reads as under:

"3(2). ’Premium’ means the price paid or promised  for the transfer of a right to enjoy immovable  property under these rules"      

Some of the relevant Rules are quoted as under:

"4.  The 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.

5.   For the purpose of proper planning and  development and for the implementation of any  scheme framed by the Chandigarh Administration,  the Chief Administrator may reserve  sites/buildings for groups of individuals or for  persons practicing any profession or carrying on  any occupation, trade or business, or for the  implementation of any scheme framed by the  Chandigarh Administration.

6.  Commencement and period of lease.   \026 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. \026 (1)  In  case of allotment of site of building the intending  lessee shall make an application to the Estate  Officer in Form ’A’.

(2)  No application under sub-rule (1) shall be  valid unless it is accompanied by 10 per cent of the  premium  as earnest money in the prescribed mode

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of payment.

(3)  When 10 per cent of the premium has been so  tendered the Estate Officer shall, subject to such  directions as may be issued by the Chief  Administration in this behalf, allot a site of the size  applied for or a building of which particulars are  given in the application and shall intimate, by  registered post the number, sector, approximate  area, premium and the rent of the site or building  allotted to the applicant.

(4)  The applicant shall, unless he refuses to accept  the allotment within 30 days of the date of the  receipt of the allotment order, deposit within that  period and in the prescribed mode of payment,  further 15 per cent of the premium.  The remaining  75 per cent of the premium shall be paid as  provided in rule 12.

(5)  If the applicant refuses to accept the allotment  within said period of 30 days, he will be entitled to  the refund of the amount paid by him.  The refusal  shall be communicated to the Estate Officer by a  registered letter (acknowledgement due).  The  refund shall be made by means of a cheque  payable at the State Bank of India at Chandigarh  and the applicant shall bear the collection charges  for the same.

(6)  If the applicant fails to communicate his  refusal to accept the allotment within 30 days and  also fails to deposit 15 per cent of the premium  under sub-rule (4) the Estate Officer may forfeit  the whole or part of the earnest money.           

9.  Lease by auction, Procedure for.  \026 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 or 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.

10.  Delivery of Possession.  \026 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 instalments of premium  payable under sub-rule (2) of the 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. \026(1)  In case of allotment, the

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premium shall be such amount as may be  determined by Chandigarh Administration.

(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.  \026 (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.          (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  instalments or more as the Chief Administrator  may in exceptional circumstances of a case fix  within prior approval of the Chief Commissioner  along with interest at the rate of 10 per cent per  annum or at such higher rate of interest as may be  fixed by the Chief Administrator by a notification  in the official Gazette before the commencement  of the lease.   The first instalment shall become  payable after one year from the date of  allotment/auction.

               Provided that in the case of  allotment of site or building of Small Scale  Industries as defined by Chandigarh  Administration from time to time in the Industrial  area, the balance of the 75 per cent of the premium  may be paid in ten annual equated instalments or  such other number of annual equated instalments  as may from time to time be fixed by the Chief  Administrator along with interest at the rate of 10  per cent per annum or such higher rate of interest  as may be fixed by the Chief Administrator by a  notification before the commencement of the lease.

(3)  In case any instalment is not paid by the lessee  by the date on which it is payable, a notice may be  served on the lessee calling upon him to pay the  instalment within a period of 3 months together  with a penalty which may extend upto 10 per cent  of the amount due.  If the payment is not made  within the said period, the Estate Officer may  cancel the lease and or forfeit the whole or any part  of the money if paid in respect thereof which, in no  case, shall exceed 10 per cent of the total amount  of the consideration money, interest and other dues  payable in respect of the lease:

Provided that forfeiture will not be made in  addition to penalty.

Provided further that no order of  cancellation or forfeiture shall be made without  giving the lessee reasonable opportunity of being  heard.  If the order of cancellation is for non- payment of penalty, the lessee may show cause

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why the penalty should not have been levied.    

(3-A) In case any equated instalment 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 instalment 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 instalment or  ground rent became payable till such date it is  actually paid.

(4)  Each instalment shall be remitted to the Estate  Officer by the prescribed mode of payment.  Every  such remittance shall be accompanied by a letter  showing full particulars of the site or building to  which the payment pertains or a statement giving  reference to the number and date of the allotment  referred to in rule 8.  In the absence of these  particulars, the amount remitted shall be deemed to  have been received only on the date when the  remitter supplies correct and complete information.     

13.  Rent and consequences of non-payment.  \026 In  addition to the premium, whether in respect of site  or building, the lessee shall pay rent as under:-        

(i)  Annual rent shall be 2-1/2 per cent of the  premium for the first 33 years which  may  be enhanced by the Chandigarh  Administration to 3-3/4 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.  \026 (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.

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(2)  If the lessee fails to execute a lease deed in  accordance with sub-rule (1) of this rule, the State  Officer may cancel the lease and forfeit a sum up  to 25 per cent of the premium.

       Provided that before taking action under  sub-rule (2) of this rule, the Estate Officer shall  afford a reasonable opportunity to the lessee of  being heard."    

In this background of the Act and the Rules, the question before  us is whether the grant of amenities is a condition precedent or not.  Learned counsel for the respondents contended that Rule 12(2) of the  Rules should be interpreted in the sense that when staggering  instalment has been paid, then the allottee is required to deposit the  balance 75 per cent of the premium in three annual equated   instalments and the first instalment falling due after one year from the  date of allotment, it should be construed that the authorities were  supposed to provide all the necessary amenities in the meantime. In  that connection, learned counsel  has submitted that it was legitimate  expectation of the allottee that within one year all the basic amenities  shall be provided. It was further submitted by learned counsel that  Rule 12(2) of the Rules should be interpreted to mean that there is  implied covenant that the authorities will  provide all the amenities  within one year. In this connection, learned counsel referred to a  decision of this Court in the case of Kumari Shrilekha Vidyarthi &  Ors. V. State of U.P. & Ors. reported in (1991) 1 SCC 212 and in the  case of Jamshed Hormusji Wadia v. Board of Trustees, Port of  Mumbai & Anr. reported in (2004) 3 SCC 214.  It was also contended  that the authorities should not charge  compound interest.  It was also  contended that the word  "amenities" should be given extended  meaning and "amenities" as defined in Section 2(b) read with Rule 11,  that the amenities should be provided first otherwise the expression "  enjoy" appearing in Rule 3(2) will be redundant.  In this connection,  learned counsel has referred to Section 67 of the Indian Contract Act,  1872 that promisee has failed to perform its promise and further  submitted that by virtue of Section 2(a) of the Specific Relief Act,  1963; when the property had been leased out it presupposes that  the  amenities should be provided when the premium is paid. In this  connection, learned counsel for the respondents has invited our  attention to Sections 105 and 108 of the Transfer of Property Act,  1882 with specific reference to rights and liabilities of lessor and  lessee. It was contended that both should be co-terminus.  In this  connection, the following decisions of this Court were cited by  learned counsel. 1.      (1992) 4 SCC 363  [ Commissioner of Income Tax v. Sun Engineering  Works (P) Ltd]

       2.      (2003) 7 SCC 197 [ Divisional Cotroller, KSRTC v. Mahadeva Shetty &  Anr.]

               3.      (2003) 8 SCC 666                          [ Megh Singh v. State of Punjab]

               4.      (2004) 6 SCC 186                         [ Collector of Central Excise, Calcutta v. Alnoori                         Tobacco Products & Anr.]

                       It was also contended that the statute should be  interpreted in the manner which advanced the cause of the public. In this  connection, the following decisions of this Court were cited by learned  counsel for the respondents.

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       1.      (1981) 4 SCC 173                 [ K.P.Varghese v. Income Tax Officer, Ernakulam & Anr]

       2.      1992 Supp.(1) SCC 335                 [ State of Haryana & Ors. V. Bhajan Lal & Ors.]

       3.      (1993) 1 SCC 78                 [ C.B.Gautam v. Union of India & Ors.]                  As against this learned counsel appearing for the appellant submitted  that in fact the expression, "amenities" cannot be given extended meaning  and the consistent case of the Administration was that necessary amenities  had already been provided and in some of the plots, the buildings had been  constructed. In some cases, the premises had been let out. Therefore, it was  the case of the appellant throughout before the High Court as well as before  this Court that providing amenities was never a condition precedent and  whatever necessary facilities/ amenities which were required in the matter  had already been provided. Learned counsel for the Chandigarh  Administration and for the Municipal Corporation submitted that the  Corporation/ Administration are not running away from their legal  obligation to provide necessary facilities, which have already been provided  and whatever remains to be provided, shall be provided. It was contended  that tar road could not be constructed because on most of the places  construction was in progress and the construction materials were lying on  the road.  Therefore, it was not possible to proceed with the construction of  tar road. However, the Administration is under obligation to provide   necessary facilities as per the provisions of the Act and the Rules.  It was  also submitted that in the case of M/s.DLG Builders,  the High Court has  already dismissed large number of writ petitions holding that providing of  amenities is not a condition precedent. In this connection, learned counsel  for the appellant-Administration has invited our attention to a decision of  this Court in the case of  Sector-6, Bahadurgarh Plot Holders’ Association  (Regd.) & Ors. V. State of Haryana & Anr. reported in (1996) 1 SCC 485  wherein a three Judge Bench of this Court in no uncertain terms has held  that providing of the amenities is not a condition precedent. Therefore, it  was contended by learned counsel for the appellant- Administration that it  cannot be constructed to be a condition precedent in the matter.

               We have bestowed our best of the attention to the provisions of  the Act and the Rules. 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 instalment, interest and penalty, if  any, as provided under the Act and the Rules. It is not possible  to accept  a  sweeping proposition  that if all the facilities or amenities are not provided,  then the allottees/ lessees can take upon themselves not to pay the lease  amount, interest and penalty would be going too far.  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. "Amenity" has been defined under  Section 2(b) of the Act which includes roads, water-supply, street lighting,  drainage, sewerage, public building, horticulture, landscaping and any other  public utility service provided at Chandigarh.  That is a statutory obligation  but it is not a condition precedent as contended by learned counsel for the  respondents.  It is true  the word, "enjoy"  appearing  in the definition of  the  word  "premium"  in Rule 3(2) of the Rules,  means the price paid or  promised for the transfer of a right to enjoy immovable property under  the  Rules. It was very seriously contended before us that the word,  enjoy  immovable property necessarily means that  the Administration  should  provide all the basic amenities as appearing under Section 2(b) of the Act for  enjoying that allotment.  The expression "premium" appearing in the present  context does not mean that the allottees/ lessees cannot enjoy the immovable  property without those amenities being provided. The word "enjoy" here in

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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. This is only the price to enjoy that allotted/leased  property. Otherwise, walking over to that property will mean to trespass.  This is only a permissive possession.  Since the allottees had paid the price  or promised to pay after the transfer  of the right to enjoy the immovable  property, this cannot be construed that the property cannot be enjoyed  without providing the basic amenities. 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,  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 instalments 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 instalment. 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 entitled to pay the interest. This  construction is not borne out from the scheme of the Act and the Rules. It is  true that the Administration has an obligation but it is not a condition  precedent in the present case. "Amenity" has been interpreted in the  Advanced Law Lexicon (3rd Edition, 2005 at page 237) as follows:

               " IN REAL PROPERTY LAW, such  circumstances, in regard to situation, view, location,  access to a water course, or the like, as enhance the  pleasantness or desirability of the property for purposes  of residence, or contribute to the pleasure and  enjoyment of the occupants, rather than to their  indispensable needs. Extras or intangible items often  associated with property. They may be tangible. Often  amenities in a condominium include swimming pools,  landscaping, and tennis court."

Therefore, the term amenity in the context of real estate is to mean the  facilities as provided under Section 2(b) of the Act but it can never be  treated to mean that this is a condition precedent.  It is for the better use of  the allotted piece of land but that does not mean that it should be provided  first as a condition precedent in the matter in the present case. Learned  counsel  invited our attention to the expression , " enjoy" as per the  Webster’s Dictionary, which means as follows:

               " to have, possess, and use with satisfaction; to  have, hold, or occupy, as a good or profitable thing, or  as something desirable; as, we enjoy many privileges."

It is true that once allotment of the land has been made in favour of the  allottee, he can take possession of the property and use the same in  accordance with the Rules.  That does not mean that all the facilities should  be provided first for so called enjoyment of the property this was not the   condition of auction.  Party knew the location & condition prevailing  thereon.  The interpretation given by the Division Bench of the High Court  of Punjab & Haryana and contended before us cannot be accepted as a  settled proposition of law. In the present case, as per the Act and the Rules   it is never a condition precedent of the auction or as per the lease that all the  facilities like, road, water-supply, street lighting, drainage, sewerage, public  building, horticulture, landscaping shall be  a condition precedent. Nowhere  in the conditions of lease or in the auction it is provided that this will be  done first though  it had been contended by the Administration that the basic

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amenities have already been provided. Be that as it may, in the present  context it cannot be construed that it is a condition precedent.  In this  connection, our attention was drawn to a decision of this Court in the case of  Sector-6, Bahadurgarh Plot Holders’ Association (Regd.) & Ors. V. State of  Haryana & Ors reported in (1996) 1 SCC 485, which has an important  bearing.  In this case, the Punjab Urban Estates (Sales of Sites) Rules, 1965,  Punjab Urban Estates (Development and Regulation)Act, 1964 and Haryana  Urban Development Authority ( Disposal of Land and Buildings)  Regulations, 1978, came up for consideration and in that context, a three  Judge Bench of this Court categorically held as follows:

               " To decide the aforesaid submission of Shri  Bhandare we would really be required to find out as to  whether the offer was of developed plots or  undeveloped plots. 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 concerned. We are not in a  position to accept the submission of Shri Bhandare that  equity would not demand charging of interest, even  though the plots are yet to be fully developed. When  parties enter into contract, they are to abide by the terms  and conditions of the same, unless the same be  inequitable. In the present case, question of equity does  not really arise inasmuch as the condition relating to  interest is founded on a statutory rule, vires of which  has not been challenged. The provision in a cognate rule  cannot alter the consequence which has to follow from  the rule which holds the field. In the present case, it  being the Punjab Rules under which the allotment was  made, we are not in a position to agree with Shri  Bhandare, despite his forceful submissions, that the  appellants may not be asked to pay interest, despite their  having been no offer of delivery of possession of fully  developed plots."

Similar is the position here also though the Rules are not almost identical but  somewhat similar. In the present case, the effort of learned counsel to  interpret this provision to mean that the amenity was sine qua non is far from  correct. All the forceful efforts made by learned counsel does not persuade  us to take the view,  in the present auction notice and the general terms and  conditions of the lease that providing of all the amenities as appearing in  Section 2(b) of the Act was a condition precedent. In this connection,  learned counsel referred to necessary provisions of Section 67 of the Indian  Contract Act, 1872. Section 67 of the Act provides that if any promisee  neglects or refuses to afford  the promisor reasonable facilities for the  performance of his promise, the promisor is excused by such neglect or  refusal as to non-performance caused thereby. This provision has no

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application in the present case. There was no specific promise on the part of  the Administration that providing of facilities shall be condition precedent.  Therefore, Section 67 of the Indian Contract Act, 1872 has no application in  the present case. Learned counsel for the respondents referred to Section  2(a) of the Specific Relief Act, 1963. Section 2(a) of the Specific Relief Act,  1963 says that obligation includes every duty enforceable by law.  As we  have already noted that this was not the obligation on the part of the  Administration that they will necessary provide the amenities before handing  over of the possession of the allotted plots. Therefore, there is no question of  obligation being enforceable by any mandamus as there is no such obligation  as per the terms and conditions of the lease or by the Act or the Rules.  Similarly, our attention was drawn to Sections 105 and 108 of the Transfer  of Property Act, 1882. Section 105 of the Act defines lease and Section 108  lays down the rights and liabilities of lessor and lessee. We asked 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 instalements  before providing the amenities. There is neither any condition in the lease  nor any obligation under the auction. If the parties have given their bids and  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. It is true that according to the provisions of the  Act, the Administration is under the obligation to provide the amenities but  there is no such condition precedent for that matter. In this connection, our  attention was also invited that the provisions of the Act should be interpreted  in a manner which advances the cause of the public.  There is no two  opinion in the matter that the statute should be interpreted in the manner   which advance the cause of the public. But when the issue comes where  there is any statutory obligation then certainly this Court will not hesitate to  do so. But in the absence of such, to lay down that this was a condition  precedent and allow the allottees to waive their obligation to pay the  instalments with interest, that is not correct. In the case of  K.P.Varghese  (supra), under the Income-tax Act, 1961, Their Lordships have considered  the matter and have held that Circular issued under Section 119 of the Act  by the Central Board of Direct Taxes explaining the scope and object of a  provision, is binding because it gives contemporanea exposition and hence  the provision must be construed in accordance with the terms of the  circulars. Thus, the rule of construction by reference to contemporanea  exposition is a well-established rule of interpretation of statute by reference  to the exposition it has received from contemporary authority, though it must  give way where the language of the statute is plain and unambiguous.  This  is not the case here.

               In the case of  State of Haryana & Ors. V. Bhajan Lal & Ors  reported in 1992 Supp. (1) SCC 335,  the question of invoking inherent  power under Section 482 of the Code of Criminal Procedure came up for  consideration before this Court. This case is also of no help for the  respondents in any manner. In the case of C.B.Gautam v. Union of India &  Ors.  Reported in (1993) 1 SCC 78,  the provisions of  Section 269-UD (1)   came up for  interpretation before this Court and this Court held that the  provision does not give any unfettered discretion to appropriate authority for  pre-emptive purchase of the property which was agreed to be sold by  assessee on a consideration significantly lower than the fair market value  and they further considered one of the methods for interpretation of the  statute i.e. reading down provision if necessary. This also does not help the  respondent in any manner as there is no need  of reading down the  provisions in any manner, as provisions are very clear.  

               It was next contended by learned counsel for the respondents  that the decision rendered in the case of  Sector-6, Bahadurgarh Plot  Holders’ Association (Regd.) (supra)  should be read in the context in which  it has been given & should not be read as laying down a universal  proposition.  In this connection a reference was made to  the decision of this  Court in the case of Commissioner of Income Tax v. Sun Engineering  Works (P) Lrd. Reported in (1992) 4 SCC 363. In that case,  this Court  observed as follows :

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               " It is neither desirable nor permissible to pick  out a word or a sentence from the judgment of the  Court, divorced from the context of the question under  consideration and treat it to be the complete ’law’  declared by the Supreme Court."   This is not the case here. We have considered the matter independent of the  facts of the case Sector-6 Bahadurgarh Plot Holders’ Association (Regd.)  (Supra) and we have come to the conclusion that the amenities cannot be  made a condition precedent.  In  the case of Sector-6, Bahadurgarh Plot  Holders’ Association (Regd.) (supra) similar argument was raised that the  allottee could  refuse to take possession of the plot and deny payment of  interest because the plot had not been developed. Similar provision appears  in the present case  i.e. the balance of the 75 pr cent premium may be paid in  three annual equated instalments along with interest without condition of   providing amenities in advance.  

               Similarly, in the case of Divisional Controller, KSRTC v.  Mahadeva Shetty & Anr reported in (2003) 7 SCC 197, this Court observed  as follows :                 " The decision ordinarily is a decision on the  case before the court, while the principle underlying the  decision would be binding as a precedent in a case  which comes up for decision subsequently."

Therefore the decision in the case of Sector-6, Bahadurgarh Plot Holders’  Association (Regd.) (supra) fully applies in the case as the situation is  analogous.

               Learned counsel further invited our attention to a decision of  this Court in the case of Megh Singh v. State of Punjab reported in (2003) 8  SCC 666.  This was a case under  the Narcotic Drugs and Psychotropic  Substances Act, 1985. In that context, their Lordships held as follows:

               " Circumstantial flexibility, one  additional or different fact may make a  world of difference between conclusions in  two cases or between two accused in the  same case."

It is true that in criminal matters even one single significant detail may alter  the decision. But that is not the case here.                 A reference was made to a decision of this Court in the case of  Collector of Central Excise, Calcutta v. Alnoori Tobacco Products & Anr  reported in (2004) 6 SCC 186.   In this case,  it was held that observations in  judgments should be read in the context in which it is stated and the same  should not be construed as statutes.  There is no doubt about this proposition  of law. Therefore, this decision also does not advance the case of the  respondents. In the case of  Kumari Shrilekha Vidyarthi & Ors. V. State of  U.P. & Ors. Reported in (1991) 1 SCC 212, their Lordships  propounded the  theory of  legitimate expectation.  Legitimate expectation does not mean  illegitimate flight of fancy. Legitimate expectation means that what has been  held out in the  terms and conditions of the auction and the lease deed.  Legitimate expectation and the provisions of the Act cannot be read together  to mean that the terms of the auction and the lease deed should be ignored.

               Learned  counsel  invited our attention to a decision of this  Court in the case of Jamshed Hormusji Wadia v. Board of Trustees, Port of  Mumbai & Anr reported in (2004) 3 SCC 214. This was a case where the  question was whether the Board of Trustees, Port of Mumbai is a State  within the meaning  of Article 12 of the Constitution or not.  Their Lordships  have observed that  the instrumentality of the State cannot act in an arbitrary  or capricious manner. All the State action must be for public good for which  it exists.  This does not mean that public can take up on itself to ignore to

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abide by condition of auction & refuse to pay State its dues.                  In this background, we are of the opinion  that the interpretation  of the Act and the Rules given by the Division Bench of the Punjab &  Haryana High Court in the impugned judgment (M/s Shanti Kunj Investment  Pvt. Ltd.)  cannot be sustained.  It has been contended by the counsel for the  Chandigarh Administration that all necessary facilities have been provided  and some of the allottees have already constructed their buildings and have  rented out the same and some allottees have applied for construction of  Hotels also. It is not possible for us to examine all these facts individually.  Some of the sectors have been fully developed and some sectors have been  less developed. Therefore, it is not possible to work out that in one case it  has been fully developed and in the other case it is still not developed.  However, in some cases full payment has been made,  in some cases two  instalments have been made. Therefore, all these disputed facts have to be  adequately dealt with by the High Court. We make it clear that though it was  not a condition precedent but there is obligation on the part of the  Administration to provide necessary facilities for full enjoyment of the same  by the allottees. We therefore, remit the matter to the High Court for a very  limited purpose to see that in cases where facilities like kutcha road,  drainage, drinking water, sewerage, street lighting have not been provided,  then in that case, the High Court may grant the allottees some proportionate  relief. Therefore, we direct that all these cases be remitted to the High Court  and the High Court may consider that in case where Kutcha road, drainage,  sewerage, drinking water facilities have been provided, no relief shall be  granted but in case, 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 delay in payment of  equated instalment or ground rent or part thereof under Rule ( 12(3A) 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 instalment 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 & penal   interest  is concerned, that shall depend on facts of each case to be examined  by the High Court. The High Court shall examine each individual case and  consider grant of the proportionate relief. SLP(Civil) No. 22517/2002.  No allotment was made and no payment  was deposited except the initial payment of 10%.  Therefore, this petition is  misconceived and the same is accordingly dismissed.    

In S.L.P.(c) No.23738 of 2002, the lease has been cancelled.  Therefore, whether such cancellation  was legal or otherwise, the High Court  will examine the same in the light of the above observations.  In S.L.P.(c)  No.23941 of 2002, in fact the possession of the plot had been given on  17.1.2000.  The allottee had a grievance that  there was a mango tree on his  plot which was to be removed. The High Court may decide as to what extent  the relief should be granted.  

In  S.L.P.(c) No.14289 of 2003, S.L.P.(c) No.2948 of 2003 and  S.L.P.(c) Nos.13640-13641 of 2004,  the grievance of the writ petitioners  was that sewerage line was passing through the allottees’ building.  Therefore, possession could not be handed over and the same was handed  over only after removal of that sewerage line from the allotted plot. This  aspect may also be examined by the High Court.

This Court also called for a report by appointing a Commission. The  report of the Commissioner has been placed on record. The High Court  while deciding the question of facilities provided may  look into the  aforesaid report.

As a result of our above discussion, the order dated 2.2.2001 passed  by the Division Bench of the High Court of Punjab & Haryana  in C.W.P.  No.959 of 1999 [ M/s.Shanti Kunj Investment (Pvt) Ltd. vs.  U.T.Administration Chandigarh & Ors.] which has been followed in C.W.P.

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960 & 5874 of 1999 and  C.W.P. No. 5009 of 1998 is set aside and orders  dated 10.5.2001, 13.11.2000 & 13.9.2001 passed in C.W.P.No.5561 of  2000, W.P.No. 19356 of 1998 & C.W.P. No. 10233 of 2000 are also set  aside. Consequently, the appeals arising out of S.L.P.(c) Nos. 12794, 12987,  12935& 13449 of 2001; S.L.P.(c) No. 12995 of 2002,S.L.P.(c) No.16503 of  2001 and S.L.P.(c) No.18911 of 2002 are allowed  and the cases are remitted  back to the High Court for deciding  each case on its own merit. Rest of the  cases  excepting S.L.P.(c) No.22517 of 2002 i.e. appeals arising out of  S.L.P.(c) Nos. 22515, 18978, 18353, 23941,  23737 & 23738 of 2002;  S.L.P.(c) Nos. 14289, 2948, 3601, 9178& 5748 of 2003 and S.L.P.(c)  Nos.13640-13641 of 2004 are accordingly disposed of and are also remitted  back to the High Court for being decided in the light of the observations  made above. No costs.