SHAIKH ABDUR RAZZAQ, J.- Briefly stated the facts are that petitioner participated in an open auction held by the respondents in January, 1991 in respect of plot No. 44, I and T Centre, G-10 Islamabad and was allotted the said plot vide auction dated 30.5.1991. The final price of the plot was struck at Rs. 34,39,979/- and as per rule the petitioner deposited Rs. 860,000/- as an advance payment. The remaining amount of Rs. 25,79;979 was to be paid in the form of instalments of Rs.
6,44,995/- by 20.7.1991, 20.10.1991, 20.1.1992 and 20.4.1992. It was further stipulated that in case of non-payment of remaining amount as contemplated above the petitioner shall have to pay the delayed payment charges at the rate of Rs. 14.72% per annum or as may be revised from time to time. Due to non-provision of infra-structure utilities like electricity, gas, approach road and bridge, the petitioner could not start construction and as such did not deposit the remaining instalments in accordance with the specified schedule. On 21.12.1994, the petitioner offered payment of Rs.
25,79,979/- in lump sum as a total clearance of all the liabilities with a request to waive the interest accrued thereon. On this correspondence ensued between the parties, but it ended in cancellation of plot as per letter dated 18.5.1994. The petitioner then requested the respondents for the restoration of the plot and the respondents authorities offered to restore the plot provided the petitioner pays restoration charges along with delayed payment charges. The petitioner approached the concerned authorities to waive the restoration charges and the delayed charges upon which the respondents were pleased to waive the restoration charges but directed the petitioner to deposit the delayed charges along with outstanding instalments. It is further alleged that on 26.7.1995 a meeting of the Board was convened wherein it was resolved that allotment of plots be restored without seeking the payment of delayed charges where infrastructure facilities had not been provided. In pursuance of the decision of the said meeting the petitioner deposited the remaining instalments and an additional Rs. 10,000/- totaling Rs. 25,90,000/- on 23.1.1996. That after the receipt of full payment of the plot, the respondents initially demanded a sum of Rs.
80,3396/- on account of payment of delayed payment charges and latter on increased the said amount to the tune of Rs. 16,96,920.47 i.e. Doubt the original demand, as referred above. That under similar circumstances, one of the allottees of plot No. 56 approached the honourable Wafaqi Mohtasib complaining non- provision of infra-structure whereof it was decided by the honourable Wafaqi Mohtasib to provide electricity to the said plots Nos. 44 to 62 including petitioners' plot No.
44. That , in spite of the said fact the petitioner was served with a notice on 15.7.1997 calling upon him to deposit Rs. 16,96,921/- on account of delayed payment charges within 10 days from the issuance of the letter failing which thd said plot shall be put for an open auction. Through this Constitutional writ petition, the petitioner has prayed that the demand of Rs. 16,96,921/- being arbitrary, without lawful authority, be declared illegal and the respondents be restrained from auctioning the plot or to act adversely to the interest Of the petitioner.
2. The comments of respondents were called which have been brought on record. It is asserted by the learned counsel for the respondents that as per letter of agreement the first instalment was to be paid on 20.7.1991 whereas it was paid on 15.1.1996, that second instalment was due on 20.10.1991 and was paid on 15.1.1996, that third instalment was to be paid on 20.1.1992 and it was paid on 16.1.1996, that forth instalment was due on 20.4.1992 and the same was paid on 23.1.1996, that as per clause VII of the Lease Agreement, if any amount of arrears or delayed payment charges etc. Due thereon remained unpaid (whether formally demanded or not) for a period of two months from the due date the respondents had the authority to cancel the lease and resume the possession of the plot in accordance with terms and conditions thereon, that similarly as per clause VIH of lease agreement delayed payment charges were to be levied at the rate of 14.72% per annum (or as may be revised/levied. From time to time), on all types of delayed payment as mentioned in clause VII above, that although the respondents had the authority to cancel the plot as per clause VII referred above, as the first instalment was not paid within two months of 20.7.1991 as contemplated in the lease agreement, yet the respondents did not cancel the plot and addressed a letter dated 23.12.1992 calling upon the petitioner to clear the outstanding dues positively by 15.1.1993 as per Clauses VII and XXIX of the terms and conditions of. Allotment of plot, that the petitioner did not comply with the said letter and was again issued similar letters on 20.1.1992, 30.3.1992, 20.7.1992, 17.3.1993, 13.4.1993, 5.12.1993 and 20.9.1993, that it was vide letter No. CDA/EM-50(44)/91, dated 18.5.1994 that the petitioner was informed that respondents have waive the restoration charges amounting to Rs. 80,000/- but could not waive the payment of delayed charges, that vide letter dated 15.7.1997 the petitioner was informed to remit a sum of Rs. 16,96,921/- if he is interested in the restoration of the plot allotted to him, that as the petitioner failed to comply with the letter dated 15.7.1997 so he was informed vide letter dated 16/8.1997 that plot shall ,be put in the coming open auction. He further submitted that the instant writ petition was not maintainable as an alternate remedy in the form of appeal was available as per rules. He thus prayed that writ petition may be dismissed.
3. Arguments have been heard and record perused.
4. The main stand of the learned counsel for the petitioner is that as infra-structure utilities, like electricity, gas etc. Have not been provided by the respondents, so .He could not deposit the remaining amount of Rs. 25,79,979/- and as such he cannot be burdened with the payment of delayed charges. That now the petitioner has deposited the full cost of the plot along with Rs.
10,000/- (additional charges) so he cannot be burdened to pay the delayed payment charges, that even if it is assumed that the petitioner is liable to pay delayed payment charges, he is only liable to pay the said charges for two months from 20.4.1992 which' was the final date of payment of fourth instalment, that even otherwise he was informed about the cancellation of the plot on 18.5.1994 which has been assessed at Rs. 803396/- and is not liable for the payment of Rs.
16,96,921/- that the respondents have calculated the entire amount due to the petitioner which is Rs. 42,53,396/- out of which Rs. 34,50,000/- has been paid by the petitioner till 23.1.1996. As such a sum of Rs. 8,03,396/- is outstanding against him and at the most he can be held responsible for the payment of said amount. He also contended that it has been, held by the Wafaqi Mohtasib vide letter dated 19.8.1996 that unless and until infra-structure utilities are provided to plots Nos. 44 to 62 delayed payment charges cannot be levied. He thus submitted that on the basis of decision of the Wafaqi Mohtasib, the petitioner is not liable to pay the amount demanded by the respondents.
5. Conversely, the learned counsel' for the respondents has reiterated his contentions as incorporated in the comments offered and referred afore-mentioned.
6. The only point which requires determination in the instant writ petition is that if the petitioner is liable to pay delayed payment charges as demanded by the respondents or not. There is no cavil to the proposition that the disputed plot was obtained by the petitioner in an open auction for a sum of Rs. 34,50,000/-. It is also fact that he had deposited a sum of Rs. 8,60,000/- as an advance payment as a result of auction in his favour. It is also a fact as per terms of lease agreement the remaining amount of Rs. 25,79,979/- was to be paid in for instalments of Rs. 6,44,995/- by 20.4.1992 which was the fourth instalment of the said amount and the first three instalments were due on 20.7.1991, 20.10.199.1 and 20.1,1992. It is also a fact that the petitioner did not deposit the instalments as stipulated in the letter of allotment. It is also a fact that the petitioner had been asked through various letters dated 20.1,1992 30.3.1992, 23.12.1992, 17.3,1993, 13.4.1993 and 20,9.1993 to deposit the outstanding dues against him and as he failed, so he was finally informed about the cancellation of plot vide letter dated 18.5.1994. It is after the receipt of this letter that the petitioner started correspondence for restoration, of plots. The petitioner was informed vide letter dated 15.2.1995 that restoration charges to the tune of Rs. 80,000/- have been waived but the respondents had no authority to waive the payment on account of delayed payment charges;
7. The petitioners/ stand is that he could be burdened for payment of delayed charges only for two months as contemplated in clause 7 of lease agreement. There is-no doubt that it has been specifically provided that delayed payment charges shall be leviable for two months as per clause 7 of the lease agreement, yet that would have been applicable if the petitioner had deposited any instalment at all. Admittedly, the petitioner did not deposit even a single instalment as per schedule as provided in the lease agreement and it was for the first time on 15.1.1996 that he deposited the first instalment which was due-on 20.7.1991. Similarly he deposited second; third and fourth instalment on 15.1.1996, 16.1.1996 and 23.1.1996 which were due on 20.10.1991 .- 20.1.1992 and 20 4.1992. It is thus clear that the petitioner deposited the instalments after a period of tour to five years from the actual1 date of its payment. Under these circumstances, it does not lie in the mouth of the petitioner to say that he should not be burdened with the demand of delayed payment charges. Had the petitioner been vigilant to pay the instalments in time, there could be some force in his contentions. However, in the instant case there is a delay of 4/5 years in the payment of instalments and as such he is liable to make the payment of. Delayed charges from the original date of payment till he cleared the dues of fourth instalment dated 23.1.1996. The respondents have calculated the delayed charges till 23.1.1996. As such the amount so calculated i.e. Rs. 16,96,921/- has been determined in accordance with law. The petitioner was directed to pay a sum of Rs.
8,03396/- but the said amount pertains to year 1994 when his plot was cancelled. The petitioner did not pay the said amount, so the delayed payment charges kept on accumulating and finally rose to the tune of Rs 16,96,921/- till 23.1.1996 when he cleared the outstanding dues in respect of the price of plot allotted to him on 31.5.1991.
8. The up-shot of above discussion is that the demand of Rs. 16(96,921/- raised by respondents in letter dated 15.7.1997 is absolutely in accordance with the terms and conditions of lease agreement. There is no force in this writ petition and the same is hereby dismissed.