Punjab-Haryana High Court
Pawittar Singh Walia vs Union Territory on 21 November, 2012
Bench: Jasbir Singh, Rameshwar Singh Malik
Civil Writ Petition No. 22898 of 2012(O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Civil Writ Petition No. 22898 of 2012(O&M)
Date of Decision: 21.11.2012
Pawittar Singh Walia
.....Petitioner.
Versus
Union Territory, Chandigarh and others
.....Respondents.
CORAM : HON'BLE MR. JUSTICE JASBIR SINGH
HON'BLE MR. JUSTICE RAMESHWAR SINGH MALIK
Present : Mr. Sumeet Mahajan, Senior Advocate with
Mr. Amit Kohar, Advocate
for the petitioner.
****
1. To be referred to the Reporters or not?
2. Whether the judgment should be reported in the Digest?
*****
RAMESHWAR SINGH MALIK J.
The petitioner, by way of instant petition under Article
226/227 of the Constitution of India, seeks to invoke the writ
jurisdiction of this Court, challenging the orders dated 8.4.2008,
13.10.2009 and 18.4.2012 passed by respondents No.3, 2 and 1,
respectively, thereby declining the request of the petitioner for
transferring, in his favour, the commercial site No. 180, Sector 26,
Grain Market, Chandigarh.
Facts first. This case has a long and chequered history.
One Om Prakash (hereinafter referred to as 'original allottee')
purchased a commercial site No. 180, Sector 26, Grain Market,
Chandigarh, in an open auction on 6.2.1972, for an amount of `
85,600/-. He deposited 25% of the sale consideration at the time of
auction. The remaining 75% amount was to be paid by him in three
Civil Writ Petition No. 22898 of 2012(O&M) 2
equated annual installments, as per clause 5 of the terms and
conditions of the allotment issued in his favour, vide allotment letter
dated 12.4.1972 (Annexure P-1). First installment was to be paid at
the expiry of one year from the date of auction. Pursuant to the
allotment letter, possession of the plot was handed over to the
original allottee on 15.4.1972, as depicted in the communication
dated 22.4.1972 (Annexure P-2). Consequently, the original allottee
constructed one storey building on the above said plot.
Since the original allottee failed to make the payment of the
balance amount towards the sale consideration in time, the
resumption order dated 11.2.1975 (Annexure P-3) came to be
passed by the competent authority-respondent No.3. Knowing fully
well that he was no more having any title over the commercial site,
the original allottee entered into an agreement to sell with petitioner
for a consideration of ` 1,50,000/- and received the earnest amount
of ` 40,000/-, vide agreement to sell dated 19.12.1979 (Annexure P-
4).
Thereafter, vide representation dated 31.8.1983 (Annexure
P-5), petitioner informed the official respondents about his having
entered into an agreement to sell with the original allottee. He further
complained that when the petitioner visited the plot, he was surprised
to note that despite the sealing of resumed premises by the official
respondents, original allottee after breaking the seal, illegally gave
the plot on rent at the rate of ` 1,000/- per month, to some of his
close relatives. It was requested by the petitioner that illegal
occupation may be removed and the amount of rent illegally collected
Civil Writ Petition No. 22898 of 2012(O&M) 3
by the original allottee, be also recovered from him.
Apprehending that the original allottee was trying to back
out from the above said agreement, petitioner approached the
learned civil court, by way of a petition under Section 20 of the
Arbitration Act and vide order dated 14.12.1985 (Annexure P-6),
passed by the learned Sub Judge 1st Class, Chandigarh, in case No.
41 dated 16.11.1983, the matter was referred to the named
Arbitrators. During this period, petitioner wrote to respondent No.3,
vide letter dated 8.9.1989 (Annexure P-7), informing about the above
said agreement to sell dated 19.12.1979 with the original allottee and
also the fact regarding reference of the matter to the Arbitrators in
view of the above said order dated 14.12.1985. He also requested
that the original allottee be not permitted to transfer the plot, in case
the resumption order was recalled and plot was restored in favour of
the original allottee.
It is further pleaded case of the petitioner that original
allottee deposited an amount of ` 70,000/- with the official
respondents on 14.5.1980 (Annexure P-8). The resumption order
dated 11.2.1975 was challenged by the original allottee before this
Court, by way of CWP No. 2077 of 1980 (Om Parkash versus Union
Territory of Chandigarh and Ors). This writ petition came to be
dismissed by this Court, vide judgment dated 5.6.1990 (Annexure P-
9), however, giving an option to the original allottee for repurchasing
the site under the relevant provisions of law.
The petitioner further claims that immediately after the
judgment dated 5.6.1990 passed by this Court, he represented
Civil Writ Petition No. 22898 of 2012(O&M) 4
before respondent No.3, vide his representation dated 22.6.1990
(Annexure P-10), pointing out that in the meantime he had become
owner of the commercial site in question, because of the above said
agreement to sell in his favour and also because of the above said
order dated 14.12.1985 passed by the learned Sub Judge 1st Class,
Chandigarh. He requested to permit him to deposit the balance
amount, in compliance of the judgment dated 5.6.1990 passed by
this Court. However, instead of acceding to the request of the
petitioner, respondent No.3 intimated the original allottee, vide
communication dated 28.6.1990 (Annexure P-11), to deposit the
balance amount.
The record further shows that in response to the letter dated
28.6.1990 issued by respondent No.3, the original allottee made
some payment as depicted in the letter dated 29.6.1990 (Annexure
P-12) and receipt thereof is appended as Annexure P-13. Thereafter,
vide order dated 3.7.1990 (Annexure P-14), respondent No.3 ordered
re-transfer of the site No. 180, Sector 26, Grain Market, Chandigarh,
in favour of the original allottee, on certain terms and conditions
specified therein, including payment of the balance amount.
Consequently, the original allottee deposited 25% of the
sale consideration and requested respondent No.3 to hand over him
the physical possession of the commercial site, as stated in letter
dated 3.7.1990 (Annexure P-15). Petitioner claims that he
approached respondent No.3, vide letter dated 5.7.1990 (Annexure
P-16), requesting not to transfer physical possession of the plot in
question in favour of original allottee, instead, possession should be
Civil Writ Petition No. 22898 of 2012(O&M) 5
handed over to him. However, it seems that respondent No. 3 issued
order dated 5.7.1990 (Annexure P-17), delivering the possession of
the site in question in favour of the original allottee, consequent upon
the re-allotment of the site, purportedly in compliance of the above
said order dated 5.6.1990 passed by this Court.
Thereafter, petitioner served respondent No.3 with a notice
dated 5.7.1990 (Annexure P-18), requesting for not giving the
possession of the site to the original allottee. It seems that
respondent No.3 again issued an order dated 6.7.1990 (Annexure P-
19), directing Tehsildar, Chandigarh, to deliver vacant possession of
godown No. 180, Sector 26, Grain Market, Chandigarh, to the
original allottee. In compliance thereof, Tehsildar, U.T., Chandigarh,
handed over the vacant possession of the site to the original allottee,
vide report dated 7.7.1990 (Annexure P-20). Thereafter, original
allottee issued a receipt (Annexure P-21), confirming that vacant
possession had been delivered to him.
Respondent No.3, in response to the petitioner's application
dated 5.7.1990 (Annexure P-18), advised him to seek his remedy in
the court of law, vide communication dated 9.11.1990 (Annexure P-
22). However, it seems that petitioner did not approach any court of
law, in that regard. It is the further pleaded case of the petitioner that
during this period, the reference made to the Arbitrators, vide above
said order dated 14.12.1985 passed by the leaned Sub Judge 1st
Class, Chandigarh, was decided by the Arbitrator in favour of the
petitioner, vide award dated 13.1.1994 (Annexure P-23). Thereafter,
petitioner filed a petition under Sections 14 and 17 of the Arbitration
Civil Writ Petition No. 22898 of 2012(O&M) 6
Act, before the learned civil court and vide an ex parte judgment
dated 23.8.1996 (Annexure P-24), award of arbitration dated
13.1.1994 was made rule of the court.
Feeling aggrieved against the ex parte judgment dated
23.8.1996, original allottee filed an appeal before the learned
Additional District and Sessions Judge, Chandigarh, which came to
be dismissed, vide judgment dated 13.9.2006 (Annexure P-25). This
judgment dated 13.9.2006 was challenged by the original allottee
before this Court, by filing Civil Revision No. 5811 of 2006, which was
also dismissed on 7.11.2006 (Annexure P-26). Original allottee took
the matter to the Hon'ble Supreme Court but his SLP No. 5085 of
2007 was dismissed, vide order dated 26.3.2007 (Annexure P-27).
Thereafter, petitioner approached respondent No.3, vide his
representation dated 19.3.2008 (Annexure P-28), pointing out that
arbitration proceedings have attained finality in his favour, after
passing the above said order dated 26.3.2007 by the Hon'ble
Supreme Court. He requested that since in the meantime original
allottee has died on 30.6.2007, the commercial site be not
transferred in favour of legal heirs of the original allottee. In reply of
the representation dated 19.3.2008 (Annexure P-28), petitioner was
informed, vide communication dated 8.4.2008 (Annexure P-29), that
his request has been considered and rejected because the
commercial site No. 180, Sector 26, Grain Market, Chandigarh,
already stands resumed and nobody shall have any right over the
said site.
Thereafter, petitioner filed CWP No. 113660 of 2008 before
Civil Writ Petition No. 22898 of 2012(O&M) 7
this Court challenging the above said order dated 8.4.2008
(Annexure P-29). However, petitioner withdrew the above said writ
petition with liberty to pursue his other remedies. Accordingly, the
writ petition was dismissed with aforesaid liberty, vide order dated
4.7.2008 (Annexure P-30). Pursuant to the order dated 4.7.2008
passed by this Court in CWP No. 113660 of 2008, petitioner filed
appeal against the order dated 8.4.2008, vide Annexure P-31.
However, appeal of the petitioner came to be dismissed by the
appellate authority, vide order dated 13.10.2009 (Annexure P-32),
which was challenged by the petitioner by way of revision.
Respondent No.1 dismissed the revision of the petitioner, vide order
dated 18.4.2012 (Annexure P-33).
Thus, feeling aggrieved against the above said order dated
8.4.2008 passed by respondent No.3, order dated 13.10.2009
passed by respondent No.2 and order dated 18.4.2012 passed by
respondent No.1, petitioner has approached this Court by way of
instant petition. That is how, this Court is seized of the matter.
Learned senior counsel for the petitioner vehemently
contended that since the arbitration proceedings have attained
finality in favour of the petitioner and he had become the owner of the
property, the petitioner has become entitled for transfer of the
commercial site in question, in his favour. He further contended that
petitioner had been repeatedly requesting the respondent authorities
for transfer of the plot in question, offering to pay the balance
amount, but the respondent authorities kept on illegally ignoring the
genuine request of the petitioner in this regard. Learned senior
Civil Writ Petition No. 22898 of 2012(O&M) 8
counsel next contended that even after the order dated 5.6.1990
passed by this Court, vide Annexure P-9 in CWP No. 2077 of 1980
filed by the original allottee Om Parkash, he requested the
respondent authorities not to grant a no objection certificate, in
favour of the original allottee, so that he may not further sell the plot
to any other person. Instead of accepting the request of the
petitioner, respondent No.3 advised him vide communication dated
9.11.1990 (Annexure P-22), to seek his remedy, in accordance with
law. Learned senior counsel also submitted that in view of the
provisions of Section 43 of the Transfer of Property Act, 1882 ( 'T.P.
Act' for short), read with Rule 11-D of the Chandigarh (Sale of Site
and Buildings) Rules, 1960 (hereinafter referred to as Rules of
allotment) and also the judgment dated 5.6.1990 (Annexure P-9),
passed by this Court, it was only the petitioner who was entitled for
re-allotment of the plot in question and not the original allottee.
Learned senior counsel for the petitioner concluded by
submitting that since the respondent authorities did not provide any
opportunity of being heard to the petitioner, before cancelling the re-
allotment again for want of non payment of installments by the
original allottee, the impugned orders were unsustainable in law.
Learned senior counsel, to substantiate his arguments, relies upon
the judgments of the Hon'ble Supreme Court in the cases of Prakash
Ratan Sinha versus State of Bihar and others, (2009) 14 SCC
690, Suresh Handa versus C.B.I.,(2008) 3 SCC 674 and
S.K.Bhargava versus Collector, Chandigarh & Others (1998) 5
SCC 170.
Civil Writ Petition No. 22898 of 2012(O&M) 9
Having heard the learned senior counsel for the petitioner
and after careful perusal of the record of the case as well as giving
thoughtful consideration to the contentions raised, this Court is of the
considered opinion that arguments raised on behalf of the petitioner
are misconceived. The present petition is without any substance and
it must fail. To say so, reasons are more than one, which are being
recorded hereinafter.
Firstly, principle of caveat emptor (let the buyer beware), is
clearly attracted in the present case. It has nowhere been pleaded by
the petitioner nor it was argued before this Court that before entering
into an agreement to sell with the original allottee on 19.12.1979,
petitioner made any effort to enquire from the office of the
respondent authorities about the status of the commercial site in
question, whether it was free from all incumbrances and whether the
original allottee was legally authorized to sell the same to the
petitioner. A close perusal of the agreement to sell dated 19.12.1979
also shows that original allottee was not having with him, no
objection certificate issued by respondent No.3, for entering into an
agreement to sell with the petitioner.
Had the petitioner been vigilant enough, as he was
expected to be, and insisted on the requisite NOC issued by the
competent authority in favour of the original allottee, to sell away the
commercial site in question, the petitioner would have saved himself
from the disadvantageous situation created for him by the
unwarranted act of the original allottee. The principle of caveat
emptor is a property law principle which puts the buyer at caution.
Civil Writ Petition No. 22898 of 2012(O&M) 10
Since the petitioner remained totally negligent in this regard, he
cannot be heard to complain on this issue, against the respondent
authorities. The reason is simple but strong that the petitioner never
approached the respondent authorities, before entering into an
agreement to sell with the original allottee, so as to know whether he
had any authority in law, to enter into an agreement to sell with the
petitioner.
Admittedly, the allotment of the commercial site in question
was governed under the Rules of the allotment. Rule 8-C of the
Rules of allotment came to be inserted, vide Chandigarh Gazette
(Extra) Notification dated 9.2.1979 and the relevant part thereof,
reads as under:-
"8-C. Notwithstanding anything
contained in the letter of allotment/conveyance
deed imposing a ban on the transfer of
site/building as the case may be, or any right,
title or interest therein before the stipulated
period, the Estate Officer may grant permission
to the transfer by way of sale gift, mortgage or
otherwise of the site, building or any right, title or
interest therein, after transferee has paid full
price of the site/building and if in the opinion of
the Estate Officer special circumstances exist for
the grant of such permission. This will be
applicable to all categories of sites/buildings sold
by allotment/hire purchase, or on concessional
rates.
In the case of transfer [Inserted vide
Chd. Notification No. 24/4/1-UTFI (3) 2002/1323
dated 14.2.2002] [by the original transferee
Civil Writ Petition No. 22898 of 2012(O&M) 11
(allottee)] by way of sale/gift/mortgage or
otherwise of the site or any right, title or interest
therein, 1/3rd of the unearned increase in the
value i.e. the difference between the price paid
[by the original transferee] and the market value
of the site/building at the time of permission of
transfer. The market value of the property for
this purpose shall be assessed by the Estate
Officer or such other authority as may be
prescribed by the Chief Administrator and the
transferee shall be entitled to produce his
evidence and of being heard:
Provided that 1/3rd of the unearned
increase in the value will not be charged if a
mortgage or charge of a site/building is created
with the previous consent in writing of the Estate
Officer, in favour of the Central Government,
State Government, Chandigarh Administration,
Life Insurance Corporation of India or any
Scheduled Bank for securing a loan to be
advanced by them for constructing the building
on the site.
Provided further that in the event of sale
or foreclosure of the mortgage of charged
property the Government shall be entitled to
claim and recover 1/3rd of the unearned increase
in the value of the Plot as aforesaid and the
amount of the Government's share of the said
unearned increase shall be a first charge, having
priority over the said mortgage or charge.
Provided further that the Government
shall have the pre-emptive right to purchase the
mortgaged or charged property after deducing
1/3rd of the unearned increase as aforesaid."
Civil Writ Petition No. 22898 of 2012(O&M) 12
A bare reading of the above said provision of law would
show that had the allotment been subsisting in favour of the original
allottee and he would have applied under Section 8-C of the Rules of
the allotment, for selling the commercial site in favour of the
petitioner, respondent No.3 would have been competent to grant him
permission. However, admittedly, in the present case, the original
allottee did not apply for 'no objection certificate' under Section 8-C of
the Rules of the allotment, because he was well aware that the
allotment was no more subsisting in his name.
Similarly, the petitioner did not insist that the original allottee
must have the requisite permission as envisaged under Rule 8-C of
the Rules, noted above. However, since the agreement to sell was
only between the petitioner and the original allottee, respondent
authorities were under no legal obligation to recognise the petitioner
as an allottee in place of the original allottee, again for the strong
reason that allotment itself, which was initially in favour of the original
allottee, had been resumed long back, vide order dated 11.2.1975
(Annexure P-3).
In view of the above, this Court feels no hesitation to hold
that petitioner himself has violated the rule of caveat emptor and had
acted in a completely negligent manner. The view taken by this
Court also finds support from the judgment of the Hon'ble Supreme
Court in Commissioner of Customs (Preventive) versus Aafloat
Textiles India Private Limited and Others, (2009) 11 SCC 18. The
relevant observations made by the Hon'ble Supreme Court, which
aptly apply in the present case, read as under:-
Civil Writ Petition No. 22898 of 2012(O&M) 13
"It was for the buyer to establish that he
had no knowledge about the genuineness or
otherwise of the SIL in question. The maxim
caveat emptor is clearly applicable to a case of
this nature.
As per Advanced Law Lexicon by P.
Ramanatha Aiyar, 3rd Edn.2005 at page 721:
Caveat emptor means "let the purchaser
beware." It is one of the settled maxims, applying
to a purchaser who is bound by actual as well as
constructive knowledge of any defect in the thing
purchased, which is obvious, or which might
have been known by proper diligence. "Caveat
emptor does not mean either in law or in Latin
that the buyer must take chances. It means that
the buyer must take care." (See Wallis v.Russell
(1902) 21 R 585, 615).
"Caveat emptor is the ordinary rule in
contract. A vendor is under no duty to
communicate the existence even of latent
defects in his wares unless by act or implication
he represents such defects not to exist." (See
William R. Anson, Principles of the Law of
Contract 245, Arthur L. Corbin Ed.3d. Am.
ed.1919) Applying the maxim, it was held that it
is the bounden duty of the purchaser to make all
such necessary enquiries and to ascertain all the
facts relating to the property to be purchased
prior to committing in any manner.
Caveat emptor, qui ignorare non debuit
quod jus alienum emit. A maxim meaning "Let a
purchaser beware; who ought not to be ignorant
that he is purchasing the rights of another. (Hob.
99; Broom; Co., Litl. 102 a: 3 Taunt. 439). As
Civil Writ Petition No. 22898 of 2012(O&M) 14
the maxim applies, with certain specific
restrictions, not only to the quality of, but also to
the title to, land which is sold, the purchaser is
generally bound to view the land and to enquire
after and inspect the title-deeds; at his peril if he
does not."
Secondly, another principle of law which is attracted in the
present case, is that of "Nemo dat quod non habet' (no one can give
what he does not have or no one can transfer better title than he
himself had). In the present case, as noted above, the allotment had
been resumed by the competent authority, vide order dated
11.2.1975 and when the petitioner entered into an agreement to sell
with the original allottee on 19.12.1979, neither the allotment was
subsisting in favour of the original allottee nor he was, under any
circumstances, competent to transfer the commercial site in
question. Since the allotment in favour of the original allottee had
already been resumed long ago, i.e. more than four years and 10
months, before entering into an agreement to sell with the petitioner,
the original allottee had no title to the commercial site and as a
natural consequence thereof, an agreement to sell would not create
any right in favour of the petitioner.
A Division Bench of this Court, while deciding LPA No. 184
of 2004 (Subhash Chand and others versus the Financial
Commissioner Revenue and others), under somewhat similar
circumstances, vide its judgment dated 24.12.2008, relying upon the
judgments of the Hon'ble Supreme Court in Sewa Ram vs. Union of
India AIR 1997 SCC 2620, Raj Kumar Soni versus State of U.P.
Civil Writ Petition No. 22898 of 2012(O&M) 15
(2007) 10 SCC 635, Standard Chartered Bank versus Andhra
Bank Financial Services Ltd. (2006) 6 SCC 94 and Lachhman
Dass versus Jagat Ram (2007) 10 SCC 448, made the following
observations, which can be gainfully followed in the present case,
"Thus, the cancellation of the allotment
has the effect of loss of title of the allotee from
the date of allotment itself. Therefore, keeping in
view the principle nemo dat quod non habet i.e.,
no one convey a better title than what he had, no
title could be created in favour of the appellants."
Thirdly, the star argument of the learned senior counsel was
that the petitioner was entitled for the protection under Section 43 of
the T.P.Act. Before arriving at a conclusion on this issue, it would be
appropriate to refer to Section 43 of the T.P.Act, which reads as
under:-
"Transfer by unauthorized person
who subsequently acquires interest in
property transferred.- Where a person
[ fraudulently or] erroneously represents that
he is authorized to transfer certain immoveable
property and professes to transfer such
property for consideration, such transfer shall,
at the option of the transferee, operate on any
interest which the transferor may acquire in
such property at any time during which the
contract of transfer subsists.
Nothing in this section shall impair the
Civil Writ Petition No. 22898 of 2012(O&M) 16
right of transferees in good faith for
consideration without notice of the existence of
the said option."
From a perusal of the record, it also seems that the
petitioner was well aware about the resumption order dated
11.2.1975, before entering into an agreement to sell with the original
allottee, on 19.12.1979. We say so because in his very first
representation dated 31.8.1983 (Annexure P-5) made to Chief
Commissioner, U.T. Administration, Chandigarh, petitioner had
expressed it in no uncertain terms, which are as under:-
"I was given to understand by him that
plot was resumed by you on account of non
payment of balance due installments. He told
me that after payments of pending instalments,
he would get back the plot without any difficulty
and would finalize the deal with us. After having
taken money from us he informed me that he had
paid the full balance amount as due to your
administration. He further informed me that he
had to move the Punjab and Haryana High Court
in order to get back the plot. He told me that now
he has been following the case in the High Court
and would pass on the plot to us after getting
back the same. He told us that it was quite
strong and there would be no difficulty in getting
back the plot. So, I am waiting for that."
The material fact, reproduced above, makes it clear that
even after having come to know that the plot had been resumed by
the competent authority on account of non payment of balance
amount, petitioner entered into an agreement to sell with the original
Civil Writ Petition No. 22898 of 2012(O&M) 17
allottee, after more than 4½ years of the resumption order.
In view of what has been observed above, it is
unhesitatingly held that petitioner is not entitled for the benefit, if any,
under Section 43 of the T.P.Act. We say so because it is not the
case of petitioner himself that the original allottee, either fraudulently
or erroneously represented before the petitioner that he was
authorized to transfer the plot in dispute. Once, as per own showing
of the petitioner, he was given to understand by the original allottee
that plot had been resumed on account of non payment of balance
due installments, then the petitioner cannot seek the protection under
Section 43 of the T.P.Act. Petitioner has failed to lay the basic and
factual foundation, in this regard, that he was misled by any
misrepresentation at the hands of transferor-original allottee herein.
Thus, Section 43 of the T.P.Act is not at all attracted in the present
case, in view of its own peculiar facts.
The view taken by this Court finds support from the
judgments of the Hon'ble Supreme Court in Jumma Masjid Mercara
versus Kodimaniandra Deviah and others 1962 AIR (SC) 847,
Kartar Singh (dead) by LRS versus Harbans Kaur (1994) 4 SCC
730 and Hardev Singh versus Gurmail Singh by LRS (2007) 2
SCC 404, The Hon'ble Supreme Court in Jumma Masjid's case
(supra) observed thus:-
"Where the transferee knew as a fact
that the transferor did not possess the title
which he represents he has, then he cannot be
said to have acted on it when taking a transfer,
Civil Writ Petition No. 22898 of 2012(O&M) 18
Section 43 would then have no application,
and the transfer will fail under Section 6 (a).
Similarly, the Hon'ble Apex Court in the case of Kartar
Singh's case (supra), held as under:-
"A reading clearly shows that for
application of Section 43 of the Act, two
conditions must be satisfied. Firstly, that
there is a fraudulent or erroneous
representation made by the transferor to the
transferee that he is authorised to transfer
certain immovable property and in the
purported exercise of authority, professed to
transfer such sproperty for consideration.
Subsequently, when it is discovered that the
transferor acquired an interest in the
transferred property, at the option of the
transferee, he is entitled to get the restitution
of interest in property got by the transferor,
provided the transferor acquires such interest
in the property during which contract of
transfer must subsist.
Xxxxxxxxx
Section 43 feeds its estoppel. The rule of
estoppel by deed by the transferor would apply
only when the transferee has been misled.
The transferee must know or put on notice
Civil Writ Petition No. 22898 of 2012(O&M) 19
that the transferor does not possesses the
title which he represents that he has. When
note in the sale deed had put the appellant on
notice of limited right of the mother as
guardian, as a reasonable prudent man the
appellant is expected to enquire whether on
her own the mother as guardian of minor son
is competent to alienate the estate of the
minor. When such acts were not done the first
limb of Section 43 is not satisfied.
Xxxxxxxxx
The second limb of Section 43 is that the
contract must be a subsisting one at the time
of the claim. A void contract is no contract in
the eye of law and was never in existence so
the second limb of Section 43 is not
satisfied"
Reiterating the law aforesaid, the Hon'ble Supreme Court in
the case of Hardev Singh's case (supra),held as under:-
"Section 43, on the other hand,
embodies a 'rule of feeding the estoppel' and
enacts that a person who makes a
representation shall not be heard to allege the
contrary as against a person who acts
thereupon and it is immaterial whether the
transferor acts bona fide or fraudulently in
Civil Writ Petition No. 22898 of 2012(O&M) 20
making the representation. [See Jumma
Masjid, Mercara v. Kodimaniandra Deviah,AIR
1962 SC 847.]
In order to get the benefit of the said
provision, the conditions which must be
satisfied are :
(1) the contract of transfer was made by a
person who was competent to contract; and
(2) the contract would be subsisting at the time
when a claim for recovery of the property is
made.
However, the provisions would have no
application if the transfer was invalid as being
forbidden by law or contrary to public policy, as
envisaged under Section 23 of the Contract
Act. Thus, no estoppel can be pleaded
contrary to the provisions of a statute. The
'rule of feeding the estoppel' shall apply in
absence thereof.
Fourthly, it is equally significant to note here that when the
re-transfer was ordered by respondent No.3, in favour of original
allottee vide order dated 3.7.1990 (Annexure P-14), the agreement to
sell dated 19.12.1979 was no more subsisting as per its clause 9.
Clauses 7 and 9 of the agreement to sell (Annexure P-4) which are
relevant, read as follows:-
Civil Writ Petition No. 22898 of 2012(O&M) 21
7. That the seller (transferor) shall
produce No Objection Certificate to sell the
plot from the Estate Office, Income tax
clearance certificate, permission under Urban
Land Ceiling Act, from the competent authority
and other documents if any so required in this
connection before or at the time of registration
of Deed of transfer of lease rights. It is the
responsibility of the seller (transferor) to
complete all the formalities as required to be
completed on their part and to arrange and to
produce all such documents as required in this
connection and well in time otherwise they will
be responsible for delay, expenses on this
account and all consequences arising
therefrom
9. That it is further agreed that the
last date for the registration of the deed of
transfer of lease rights is mutually fixed on
or before 30.4.1980.
Thus, respectfully following the law laid down by the Hon'ble
Apex Court and keeping in view the peculiar fact situation of the
instant case, particularly clauses 7 and 9 of the agreement to sell
read with letter dated 31.8.1983 (Annexure P-5) written by the
petitioner, it is unhesitatingly held that neither Section 43 of the T.P.
Act is attracted in the present case nor the petitioner is entitled for
Civil Writ Petition No. 22898 of 2012(O&M) 22
any protection thereunder.
Fifthly, another important issue that falls for consideration of
this Court is the scope of Sale Agreement as envisaged under
Section 54 of the T.P.Act. In the present case, the agreement to sell
dated 19.12.1979 (Annexure P-4), of itself, did not create any right or
interest in the plot in question. Sale deed was never executed. The
issue is also not res integra. The Hon'ble Supreme Court in the case
of Suraj Lamp and Industries Pvt. Ltd versus State of Haryana,
(2012) 1 SCC 656, held as under:-
Scope of an Agreement of sale
Section 54 of TP Act makes it clear
that a contract of sale, that is, an agreement of
sale does not, of itself, create any interest in or
charge on such property. This Court in
Narandas Karsondas v. S.A. Kamtam and
Anr. (1977) 3 SCC 247, observed:
A contract of sale does not of itself create
any interest in, or charge on, the property.
This is expressly declared in Section 54
of the Transfer of Property Act. See
Rambaran Prosad v. Ram Mohit Hazra
[1967]1 SCR 293"
xxxxxxxxx
It is thus clear that a transfer of immoveable
property by way of sale can only be by a
deed of conveyance (sale deed). In the
Civil Writ Petition No. 22898 of 2012(O&M) 23
absence of a deed of conveyance (duly
stamped and registered as required by law),
no right, title or interest in an immoveable
property can be transferred.
Any contract of sale (agreement to sell)
which is not a registered deed of conveyance
(deed of sale) would fall short of the
requirements of sections 54 and 55 of TP Act
and will not confer any title nor transfer any
interest in an immovable property (except
to the limited right granted under section
53A of TP Act). According to TP Act, an
agreement of sale, whether with possession or
without possession, is not a conveyance.
Section 54 of TP Act enacts that sale of
immoveable property can be made only by a
registered instrument and an agreement of
sale does not create any interest or charge on
its subject matter.
Xxxxxxxxx
We therefore reiterate that immovable
property can be legally and lawfully
transferred/conveyed only by a registered
deed of conveyance. Transactions of the
nature of `GPA sales' or `SA/GPA/WILL
transfers' do not convey title and do not
Civil Writ Petition No. 22898 of 2012(O&M) 24
amount to transfer, nor can they be recognized
or valid mode of transfer of immoveable
property. The courts will not treat such
transactions as completed or concluded
transfers or as conveyances as they neither
convey title nor create any interest in an
immovable property. They cannot be
recognized as deeds of title, except to the
limited extent of section 53A of the TP Act.
Such transactions cannot be relied upon or
made the basis for mutations in
Municipal or Revenue Records. What is
stated above will apply not only to
deeds of conveyance in regard to
freehold property but also to transfer of
leasehold property
Similarly, in the case of Raheja Universal Limited versus
N.R.C. Limited and others, (2012) 2 RCR (civil) 506, the Hon'ble
Apex Court observed as follows:-
"Firstly, we may examine whether an
agreement to sell in relation to an immovable
property transfers or creates any right or title
in the immovable property itself in favour of
the purchaser. Section 54 defines 'Sale' as a
transfer of ownership in exchange for price
paid or promised or part-paid and part-
Civil Writ Petition No. 22898 of 2012(O&M) 25
promised. Such a transfer of tangible
immovable property of the value of Rs.100/-
and upwards can be made only by a
registered instrument. The 'contract for sale'
has been explained under this very provision
as follows: -
"Contract for sale:- A contract for the
sale of immovable property is a contract
that a sale of such property shall take place
on terms settled between the parties. It does
not, of itself, create any interest in or charge
on such property."
Thus, on a plain reading of the statutory
provisions, it is clear that an agreement for
sale or an agreement to sell itself does not
create any interest or charge in such property.
Mulla on 'Transfer of Property Act', 9th
Edition, page 181, clearly states that Section
54 enacts that an agreement for the sale of
land does not itself create an interest in land.
In view of what has been discussed here-in-above regarding
the fact situation of the present case and in view of the law laid down
by the Hon'ble Supreme Court, it is held that the contentions raised
on behalf of the petitioner are misplaced and without any substance.
Sixthly, despite having come to know that the original
allottee had approached this Court challenging resumption order,
Civil Writ Petition No. 22898 of 2012(O&M) 26
petitioner never made any effort to become a party in CWP No. 2077
of 1980, filed by the original allottee, which came to be dismissed,
vide judgment dated 5.6.1990 (Annexure P-9). No reason is
forthcoming as to why the petitioner did not become a party in the
above said writ petition, which remained pending before this Court for
about 10 years.
Had the petitioner become party in the above said writ
petition, this Court would have strike a balance, while granting
permission to the original allottee to exercise his option, if so advised,
for repurchasing the site, under the provisions of Rule 11-D of the
Rules of the allotment. However, petitioner kept on sleeping over his
rights, without there being any reason, much less any compelling
reason which might have been beyond his control. After passing of
the judgment dated 5.6.1990 by this Court, dismissing CWP No.
2077 of 1980, filed by the original allottee, however, clarifying that if
so advised, he may exercise the option to repurchase the site in
dispute as per provisions of Rule 11-D of the Rules of the allotment,
the original allottee applied for re-purchasing the plot.
It is appropriate to refer to Rule 11-D of Rules of allotment
and the same reads as under:-
'Section 11-D : (1) Where a site has
been resumed under section 8A of Act No.
XXVII of 1952 for any reasons, the Estate
Officer may on an application, retransfer the
site to the outgoing transferee, on payment of
an amount equal to 10 per cent of the premium
Civil Writ Petition No. 22898 of 2012(O&M) 27
originally payable for such property or one-
third of the difference between the price
originally paid and its value at the time when
the application for transfer is made, whichever
is more:
However in the case of a person who
is serving or who has served in the Armed
Forces of the Union, the amount payable by
him or his legal heir for the retransfer of a site
shall be 5% of the difference between the price
originally payable and its value at the time
when application for re-transfer is made, which
ever is more.
Provided that such transfer shall be
permissible only if -
(i) where the site has been resumed on ground
of misuse, the misuse, has stopped;
(ii) where the site has been resumed for non-
payment of price, all outstanding dues
including forfeiture have been paid;
(iii) where the site has been resumed for
breach of any conditions of sale, the breach
has been remedied and conditions fulfilled.
Notwithstanding anything contained in
the proviso above, when the site has been
resumed on ground of misuse or non-
Civil Writ Petition No. 22898 of 2012(O&M) 28
completion of the building on it within the
stipulated period, the Estate Officer may allow
the re-transfer on the applicant agreeing to
vacate or have the misuser vacated or the
building completed as the case may be within
such reasonable period as the Estate Officer
may stipulate.
Explanation - For the purposes of this rule, the
expression 'site' does not include a vacant site.
A vacant site is a site on which on the date of
issue of notice of resumption under section 8-A
of the Act, no super structure had been raised
and it includes a site on which foundations had
been laid but no super structure had been
raised above that level.
(2) The retransfer under sub-rule (1) shall be in
continuation of and subject to all subsisting
conditions but without prejudice to all the
proceedings of liabilities or subsisting penalties
levied in respect of such property before the
date of the transfer.
(3) The prevailing price shall be assessed by
the Estate Officer or such other authority as
may be prescribed by the Chief Administrator
and in doing so the Estate Officer or such
other authority shall give the applicant
Civil Writ Petition No. 22898 of 2012(O&M) 29
reasonable opportunity of being heard. The
assessment made by the Estate Officer shall
be final.
(4) The applicant shall unless he refuses to
accept the re-transfer, deposit within 30 days,
25 per cent of the consideration of the
retransfer. The remaining 75 per cent of the
said consideration shall be paid in three annual
equated instalments alongwith interest at the
rate of 7 per cent per annum. The first
instalment shall become payable after one
year from the date of retransfer. In case any
instalment is not paid by the applicant by the
due date it shall be deemed as if no retransfer
had come into effect.
(5) No application under sub-rule (1) shall be
entertained unless it is presented within six
months of the date of appeal/revision as the
case may be.
Provided that in the case of an order
of resumption passed earlier, the period of six
months referred to above, shall begin to run
from coming into force of this rule:
Provided further that the Estate
Officer may entertain an application after
expiry of six months if he is satisfied that there
Civil Writ Petition No. 22898 of 2012(O&M) 30
was good and sufficient reason for not
presenting the application within the said
period of six months"
The aforesaid Rule was introduced by
Gazette notification dated 4.10.1979 and was
deleted by Chandigarh Gazette notification
dated 31.1.2007
In response to his application for repurchase of the plot,
respondent No.3, vide his order dated 3.7.1990 (Annexure P-14), re-
transferred the plot in favour of the original allottee, but on very
specific terms and conditions, which read as under:-
"Subject: Re-transfer of godown site No. 180,
Sector 2, Grain Market, Chandigarh (CP No. 2430).
Memo.
Reference you application dated 14.5.1980 on
the subject cited above in compliance of the Hon'ble
Court dated 5.6.1990.
Godown site No. 180, Sector 26, Grain Market,
Chandigarh is hereby re-transferred in your favour under
Rule 11-D Amendment 1979 the Chandigarh (Sale of
Sites and Building) Rules, 1960 on the same terms and
conditions as laid down in this office allotment No.
3414/CP-2430/CIA-I dated 12.4.1972, subjected to the
payment of Rs. 40,313.00 representing the 1/3rd of the
difference between the price originally paid and the value
at the time of the application/clearance of all the
outstanding dues as provided in the above said rule. The
payment can be made in the following manner in case
you accept the re-transfer.
(i) 25% of the consideration money i.e. Rs.
10054.00 shall be paid within 30 days from
Civil Writ Petition No. 22898 of 2012(O&M) 31
the date of issue of this letter.
(ii)The remaining 75% of the consideration
money i.e. Rs. 10054.00 shall be paid in 3
annual equated instalments alongwith interest
@ 7% per annum. The 1st installment shall be
payable after one year from the date of re-
transfer. The amount of each instalment
works out to Rs 11,492/- and shall be payable
on the dates given against as under:-
Installment Amount Due Date Payable by
1st Installment Rs. 11492/- 3.7.1991 10.8.1991
2nd Installment Rs. 11492/- 3.7.1992 10.8.1992
3rd Installment Rs. 11492/- 3.7.1993 10.8.1993
In case any installment is not paid on the
due date, it shall be deemed as if no re-transfer had
come into effect.
In case the re-transfer is acceptable to you,
you should give your consent and make the payment
of the consideration money in the manner mentioned
above."
Admittedly, accepting the re-transfer on abovesaid terms
and conditions, original allottee made the initial payment. However,
when the original allottee again failed to make the payment of
balance amount, the re-allotment stood cancelled in view of
unambiguous and categoric terms of re-allotment to the effect that in
case any installment is not paid on the due date, it shall be deemed
as if no re-transfer had come into effect.
It is significant to note that Rule 11-D of the Rules of
allotment was inserted in these Rules vide Chandigarh Gazette
Notification dated 4.10.1979 and was deleted by the Chandigarh
Gazette Notification dated 31.1.2007, as stated by the petitioner in
Civil Writ Petition No. 22898 of 2012(O&M) 32
para 46 of the petition. Thus, before the arbitration award could
attain finality in favour of the petitioner on 26.3.2007, when the
Hon'ble Supreme Court dismissed the SLP of original allottee, as
noticed above, Rule 11-D was no more available on the statute book.
In this view of the matter, petitioner was rightly not found entitled for
the re-transfer of the plot, in his favour.
It is pertinent to note here that this deeming clause,
incorporated in the order of re-transfer, had been borrowed as it is,
from Rule 11-D (4) of the Rules of allotment. This Court has not
found any force in the contention of the learned senior counsel for
the petitioner that opportunity of hearing ought to have been granted
to the petitioner. The reason is obvious. As noted above, neither
petitioner became a party before this Court in CWP No. 2077 of
1980, nor he was a party to the order of re-allotment.
A perusal of the record further shows that after the death of
original allottee on 30.6.2007, his legal heirs, i.e. respondents No. 4
to 6 herein, made another attempt for getting the re-allotment
restored but their request was declined, vide letter dated 3.3.2008. It
is so recorded by the appellate authority, in its order dated
13.10.2009 while dismissing the appeal of the petitioner. Thereafter,
it seems that petitioner also approached the respondent authorities
but his request was considered and rejected, vide impugned
communication dated 8.4.2008 (Annexure P-29). At this point of
time, the power to re-transfer was no more available with the
respondent authorities, because Rule 11-D of the Rules of allotment
had been deleted vide Notification dated 31.1.2007.
Civil Writ Petition No. 22898 of 2012(O&M) 33
Feeling aggrieved, the petitioner approached this Court by
filing CWP No. 113660 of 2008, however, the same was withdrawn by
the petitioner with liberty to pursue his other remedies. Accordingly,
the writ petition was dismissed by a Division Bench of this Court, vide
order dated 4.7.2008, which reads as under:-
"Learned counsel for the petitioner
wishes to withdraw the petitioner with liberty to
pursue other remedies.
Dismissed as withdrawn with
aforesaid liberty granted."
Thereafter, respondent filed his appeal against the above
said order dated 8.4.2008, as well as against the resumption order
dated 11.2.1975. The appeal of the petitioner was dismissed by the
competent authority and the operative part of the order dated
13.10.2009, reads as under:-
"I have carefully considered the
arguments of the parties and perused the record.
The resumption order was passed on 11.2.1975
whereas the alleged agreement between the
appellant and late Shri. Om Parkash is dated
19.12.1979. The contention of the appellant that
the impugned order of resumption was passed at
his back, therefore, the impugned order was
illegal, is not sustainable. In the civil suit filed by
the appellant, neither the Estate officer nor the
Chandigarh Administration was made a party
and, therefore, the civil court decree was not
binding on the third party which was not
impleaded in the civil suit. As such, the civil court
Civil Writ Petition No. 22898 of 2012(O&M) 34
decree passed in favour of the appellant was not
binding on the estate office or on the Chandigarh
Administration and, therefore, the Estate Officer
has rightly rejected the claim of the appellant for
transfer of site in favour of the appellant.
Otherwise also, once the order of resumption
was passed on 11.2.1975 and by virtue of this
resumption order the property vested in the
Chandigarh Administration and nobody was
authorized to execute any document in respect of
that property. As such, since late Shri Om
Parkash had ceased to be owner of the property
on 11.2.1975, he had no legal right to execute
any agreement to sell. Therefore, the agreement
to sell allegedly executed in favour of the
appellant on 19.12.1979 is not a legal document.
Further pursuant to the High Court observations,
offer of re-allotment was made by the Estate
Officer, but the legal heirs of late Shri Om
Parkash failed to comply with the terms and
conditions of re-allotment and, therefore, the offer
of re-allotment was cancelled/withdrawn by the
estate office. In view of these facts and
arguments of mine, appeal fails and the same is
hereby dismissed."
Dissatisfied with the above said order, petitioner filed his
revision petition before respondent No.-1 but the petitioner remained
unsuccessful before the revisional authority, as well. The relevant
part of the order dated 18.4.2012 passed by respondent No.1, reads
as under:-
"After hearing the parties and going
through the record, I find that the site in question
Civil Writ Petition No. 22898 of 2012(O&M) 35
was purchased by Shri Om Parkash in an open
auction held on 6.2.1972. The allottee failed to
make the payment of the government dues and,
thereafter, the Estate Officer resumed the site
vide order dated 11.2.1975. After resumption of
the site, the original allottee has entered into an
agreement to sell the site to Shri Pawittar Singh
Walia on 19.12.1979. The plea taken by the
counsel for the petitioner that the arbitrator has
given the award in favour of the petitioner and
the petitioner has right to repurchase the site is
not tenable because the site in question had
been resumed, by the Estate Officer before
entering into agreement to sell with the allottee.
The ownership of the property vested in the
Estate Officer and the allottee Shri Om Parkash
was not legally entitled to enter into an
agreement in respect of this property. In the civil
suit/arbitration proceedings, the Estate Officer
was not made a party. Therefore the civil Court
was not binding on the Estate Office. The Estate
Officer has rightly rejected the claim of the
petitioner for re-transfer of site in favour of the
petitioner vide order dated 8.4.2008. The appeal
filed by the petitioner before the Chief
Administrator was dismissed vide order dated
13.10.2009. The counsel for the petitioner failed
to show any perversity in the order of the Chief
Administrator. I see no infirmity in the order of
the Chief Administrator and while upholding the
same, dismiss the present petition being devoid
of merits.
The orders were reserved on 29.2.2012
and are being released to day the 18th April,
Civil Writ Petition No. 22898 of 2012(O&M) 36
2012."
Although this Court is not sitting in appeal over the above
said orders passed by respondent No. 1 to 3, yet after hearing the
learned senior counsel for the petitioner at length and giving anxious
consideration to the arguments raised and keeping in view the
foregoing reasons, this Court has found that the arguments raised by
the learned senior counsel are without any force.
This Court has gone through the judgments cited by the
learned senior counsel for the petitioner and found that although
there is no dispute about the law laid down by the Hon'ble Supreme
Court, yet the judgments relied upon are clearly distinguishable on
facts. It is the settled proposition of law that one additional
circumstance or different fact between two cases, may make a world
of difference. It is not prudent to place reliance upon a judicial
precedent without critically analysing and comparing the true fact
situation of the case in hand.
The Constitution Bench of the Hon'ble Supreme Court of
India in the case of Padma Sundara Rao and others versus State
of Tamil Nadu and others, (2002) 3 SCC 533, held as under:-
"Courts should not place reliance on
decisions without discussing as to how the factual
situation fits in with the fact situation of the
decision on which reliance is placed. There is
always peril in treating the words of a speech or
judgment as though they are words in a legislative
enactment, and it is to be remembered that
judicial utterances are made in the setting of the
facts of a particular case, said Lord Morris in
Civil Writ Petition No. 22898 of 2012(O&M) 37
Herrington Vs. British Railways Board (1972) 2
WLR 537.Circumstantial flexibility, one additional
or different fact may make a world of difference
between conclusions in two cases."
Similarly, reiterating the above said principle of law, the
Hon'ble Supreme Court in the case of State of Haryana and others
versus M/s AGM Management Services Ltd. (2006) 5 SCC 520
made the following observations, which aptly apply in the present
case:-
"The Courts should not place reliance
on decisions without discussing as to how the
factual situation fits in with the fact situation of
the decision on which reliance is placed.
Observations of Courts are neither to be read as
Euclid's theorems nor as provisions of the statute
and that too taken out of their context. These
observations must be read in the context in which
they appear to have been stated. Judgments of
Courts are not to be construed as statutes. To
interpret words, phrases and provisions of a
statute, it may become necessary for judges to
embark into lengthy discussions but the
discussion is meant to explain and not to define.
Judges interpret statutes, they do not interpret
judgments. They interpret words of statutes; their
words are not to be interpreted as statutes. In
London Graving Dock Co. Ltd. v. Horton (1951
AC 737 at p.761), Lord Mac Dermot observed:
"The matter cannot, of course, be
settled
merely by treating the ipsissima vertra of Willes,
J as though they were part of an Act of
Civil Writ Petition No. 22898 of 2012(O&M) 38
Parliament and applying the rules of
interpretation appropriate thereto. This is not to
detract from the great weight to be given to the
language actually used by that most
distinguished judge."
In Home Office v. Dorset Yacht Co.
(1970 (2) All ER 294) Lord Reid said, "Lord
Atkin's speech.....is not to be treated as if it was a
statute definition. It will require qualification in
new circumstances." Megarry, J in (1971) 1 WLR
1062 observed: "One must not, of course,
construe even a reserved judgment of Russell
L.J. as if it were an Act of Parliament." And, in
Herrington v. British Railways Board (1972 (2)
WLR 537) Lord Morris said:
"There is always peril in treating the
words of a speech or judgment as though they
are words in a legislative enactment, and it is to
be remembered that judicial utterances made in
the setting of the facts of a particular case."
Circumstantial flexibility, one additional
or different fact may make a world of difference
between conclusions in two cases. Disposal of
cases by blindly placing reliance on a decision is
not proper.
The following words of Lord Denning in
the matter of applying precedents have become
locus classicus:
"Each case depends on its own facts
and
a close similarity between one case and another
is not enough because even a single significant
detail may alter the entire aspect, in deciding
such cases, one should avoid the temptation to
Civil Writ Petition No. 22898 of 2012(O&M) 39
decide cases (as said by Cordozo) by matching
the colour of one case against the colour of
another. To decide, therefore, on which side of
the line a case falls, the broad resemblance to
another case is not at all decisive."
*** *** ***
"Precedent should be followed only so far as it
marks the path of justice, but you must cut the
dead wood and trim off the side branches else you
will find yourself lost in thickets and branches. My
plea is to keep the path to justice clear of
obstructions which could impede it."
Learned senior counsel, during the course of hearing, also
pointed out that respondents No. 4 to 6, being the legal heirs of the
original allottee, are still continuing in possession of commercial site
in question. He next contended that since respondent No. 4 to 6 are
still continuing in possession, the petitioner deserve a sympathetic
consideration at the hands of this Court. We are afraid that this Court
cannot accept this contention, as well. This Court is not inclined to
adversely affect the instant judgment, with a compassionate or
sympathetic view because the petitioner, due to his own conduct,
does not deserve any sympathy. Sympathetic consideration cannot
be stretched too far to cause undue loss to the State Exchequer.
The view taken by this Court also finds support from the
judgment of Hon'ble Apex Court in the case of M/s Teri Oat Estates
(P) Ltd versus U.T., Chandigarh and others 2004 (2) SCC 130.
The relevant observations made by the Hon'ble Supreme Court in
Civil Writ Petition No. 22898 of 2012(O&M) 40
paras No. 36 to 39 in Teri Oat's case (supra), which can be gainfully
followed in the present case, read as under:-
SYMPATHY :
36. We have no doubt in our mind that sympathy
or sentiment by itself cannot be a ground for
passing an order in relation whereto the
appellants miserably fail to establish a legal right.
It is further trite that despite an extra-ordinary
constitutional jurisdiction contained in Article 142
of the Constitution of India, this Court ordinarily
would not pass an order, which would be in
contravention of a statutory provision.
37. As early as in 1911, Farewell L.J. in Latham
v. Richard Johson & Nephew Ltd., (1911-13 AER
reprint p. 117) observed :
"We must be very careful not to allow our
sympathy to affect our judgment with the infant
plaintiff. Sentiment is a dangerous will O' the wisp
to take as a guide in the search for legal
principles."
(See also Ashoke Saha v. State of West Bengal
& Ors., CLT (1999) 2 H.C. 1).
38. In Sairindhri Ddolui v. State of West Bengal,
(2000) 1 SLR 803, a Division Bench of the
Calcutta High Court wherein (one of us Sinha, J.
was a Member), followed the aforementioned dicta.
39. This Court also in C.B.S.E. and Another v. P. Sunil Kumar and Others, [1998] 5 SCC 377 rejecting a contention that great injustice would perpetrate as the students having been permitted to appear at the examination and having been successful and certificates had been issued in Civil Writ Petition No. 22898 of 2012(O&M) 41 their favour, held :
". . . We are conscious of the fact that our order setting aside the impugned directions of the High Court would cause injustice to these students. But to permit students of an unaffiliated institution to appear at the examination conducted by the Board under orders of the Court and then to compel the Board to issue certificates in favour of those who have undertaken examination would tantamount to subversion of law and this Court will not be justified to sustain the orders issued by the High Court on misplaced sympathy in favour of the students. . ."
No other argument was raised.
Considering the totality of facts and circumstances of the case, noted above, coupled with the reasons aforementioned, it is unhesitatingly held that impugned orders do not suffer from any legal infirmity. The respondent authorities have committed no error of law while passing the impugned orders, in the given fact situation of the present case. No case of interference has been made out.
Resultantly, the instant petition being misconceived, bereft of any merit and without any substance, is ordered to be dismissed.
However, before parting with the judgment, Chief Administrator, Union Territory, Chandigarh-respondent No.2, is directed to ensure taking of possession of the commercial site, i.e. No. 180, Grain Market, Sector 26, Chandigarh, within a period of two Civil Writ Petition No. 22898 of 2012(O&M) 42 weeks from the date of receipt of a copy of this order, if the possession not already taken, as alleged by the petitioner. Registrar (Judicial) of this Court is directed to send forthwith a copy of this judgment to respondent No.2.
Respondent No.2 shall hold a fact finding inquiry as to how and why the original allottee-Om Parkash and after his death on 30.6.2007, respondent No. 4 to 6 being his legal representatives, have been continuing in possession of the above said commercial site, despite its resumption for the second time in the year 1991 itself, by operation of law, as specified in the order of re-transfer dated 3.7.1990 (Annexure P-14), issued by the Estate Officer, U.T. Chandigarh.
It is further directed that after holding the fact finding inquiry within a period of two months and fixing the responsibility of the officers/officials concerned, respondent No.2 shall also ensure that an appropriate, effective and meaningful action is taken against the guilty persons without any further delay.
After completing the entire exercise, respondent No.2 shall send his action taken report to this Court, within a period of three months. If the action taken report is not received from respondent No.2 within three months, the Registry is directed to put up this matter immediately before the Court, for appropriate orders.
(JASBIR SINGH) (RAMESHWAR SINGH MALIK)
JUDGE JUDGE
21.11.2012
Ak Sharma