Punjab-Haryana High Court
Jagjit Singh vs Ut Of Chandigarh & Ors on 1 October, 2014
Equivalent citations: AIR 2015 (NOC) 123 (P.& H.)
Bench: Hemant Gupta, Jaishree Thakur
CWP No. 12159 of 1995 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
*****
CWP No. 12159 of 1995
Date of decision : 1.10.2014
Jagjit Singh ........Petitioner
Vs.
Union Territory, Chandigarh and others ....Respondents
CORAM: Hon'ble Mr. Justice Hemant Gupta
Hon'ble Ms. Justice Jaishree Thakur
Present:- Mr. Dhiraj Chawla, Advocate, for the petitioner
Mr. R.G. Saha, Advocate, for the respondents
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Hemant Gupta, J. (Oral)
The challenge in the present writ petition is to the order of cancellation of lease passed by the Estate Officer on 8.7.1992, whereby Booth Site No. 12, Sector 17, Chandigarh was cancelled for non payment of three annual installments and the order in appeal passed by the Chief Administrator on 28.1.1993, as well as order passed by the Adviser to the Administrator on 6.7.1994, dismissing the same.
The petitioner was the highest bidder of above said booth in the auction conducted on 22.2.1987. A Letter of allotment was issued on 12.2.1988 on deposit of 25% premium amount. The balance of 75% of the premium amount along with interest thereon @ 7% per annum was to be paid in 3 equal annual installments. The petitioner defaulted in 1st and 2nd installments, which lead to issuance of notice under Rule 12 (3) of the Chandigarh Lease Hold of Sites and Building Rules, 1973. Consequent to the failure of the petitioner to deposit the amount, the lease was cancelled ASHWANI KUMAR 2014.10.14 16:58 I attest to the accuracy and integrity of this document CWP No. 12159 of 1995 -2- as mentioned above. The orders have been passed thereafter by the Chief Administrator and the Adviser affirming the cancellation of lease.
Learned counsel for the petitioner submits that the petitioner was ready and willing to deposit the defaulted amount and, in fact, before the cancellation of the site by the Estate Officer, had already deposited ` 1,60,000/-. The petitioner has deposited a total sum of ` 6,90,750/- with the Estate Officer till today.
The tenant inducted by the petitioner on a monthly rent of Rs. 6900/-, filed a writ petition against the order for cancellation of lease. In 'Ritu Mittal and others v. State of Punjab and others' CWP No.17689 of 1994 decided on 28.9.1994, a Division Bench of this Court passed the following interim order :-
"Admitted.
The writ petition be listed for final hearing positively within six months.
Since the resumption order has become final qua the landlord as the position stands today, the petitioner would not make any payment of rent to him. On the other hand, the petitioner would keep on depositing the rent with the Estate Officer. However, the deposit of the rent would not mean creation of any relationship of landlord and tenant. It would not even mean the payment of damages for use and occupation. This arrangement is without prejudice to the rights of the Chandigarh Administration. If some arrears are due, the same would also be deposited.
In the aforesaid amount is paid regularly, the petitioner be not dispossessed during the pendency of the writ petition."
Admittedly, in terms of such interim order, tenant has deposited monthly rent of ` 6900/- for 30 months. Since the tenant failed to deposit the amount of rent, the writ petition filed by him was dismissed on 25.5.1990.
ASHWANI KUMAR2014.10.14 16:58 I attest to the accuracy and integrity of this document CWP No. 12159 of 1995 -3-
In "Teri Oat Estates (P) Ltd. Vs. U.T. Chandigarh & others (2004) 2 SCC 130", the Hon'ble Supreme Court has held that resumption or a cancellation of lease should be resorted to as a last resort. It was observed as under :-
"42. The respondents were entitled to pay interest on the unpaid amount @ 7% p.a. which in the event of non-payment was to be paid at a penal rate of 12% and subsequently enhanced to 15 per cent and then to 24 per cent as well the amount of penalty to be levied thereupon. The entire amount was recoverable through the process of law. In a situation of this nature, having regard to the rival claims made by the parties, if the default is not absolute wilful or a dishonest one but occasioned due to situation which may be beyond one's control, the statutory right of the respondent in resuming the land may not be appropriate, if the entire dues stand discharged.
43. In terms of the provisions of the Act, the respondents are entitled to, (1) resumption of the land, (2) resumption of the building and (3) forfeiture of the entire amount paid or deposited. Having regard to the extreme hardship which may be faced by the parties, the same shall not ordinarily be resorted to.
44. The situation, thus, in our opinion, warrants application of the doctrine of proportionality.
45. The said doctrine originated as far back as in 19th century in Russia and later adopted by Germany, France and other European countries as has been noticed by this Court in Om Kumar v. Union of India, [2001] 2 SCC 386.
46. By proportionality, it is meant that the question whether while regulating exercise of fundamental rights, the appropriate or least restrictive choice of measures has been made by the legislature or the administrator so as to achieve the object of the legislation or the purpose of the administrative order, as the case may be. Under the principle, the court will see that the legislature and the administrative authority "maintain a proper balance between the adverse effects which the legislation or the administrative order may have ASHWANI KUMAR on the rights, liberties or interests of persons keeping in 2014.10.14 16:58 I attest to the accuracy and integrity of this document CWP No. 12159 of 1995 -4- mind the purpose which they were intended to serve."
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56. The land in question for all intent and purport had been transferred in favour of the appellants. They were merely to pay the balance amount of 75% of the consideration amount in instalments. The rate of interest, as noticed hereinbefore, had been increased from 7% to 24%. Penalty was levied by the appellant authority at 1% and the Revisional authority at 2%. Contrary thereto the Estate Officer, however, in terms of his original order directed payment of penalty at 10% F.F.
57. We may, however, hasten to add that we do not intend to lay down a law that the statutory right conferring the right of the respondent should never be resorted. We have merely laid down the principle giving some illustrations where it may not be used. There cannot be any doubt whatsoever that if the intention of the allottee is dishonest or with an ill motive and if the allottee does not make any payment in terms of the allotment or the statute with a dishonest view or any dishonest motive, then Section 8 A can be taken recourse to."
Recently, a Full Bench of this court in "Dheera Singh v. U.T. Chandigarh Administration, ILR (2013) 1 P&H 217" examined the scope of power of resumption and observed that a casual attempt with a bureaucratic approach deserves serious view in exercise of power of judicial review.
"(81) The doctrine of proportionality as ruled in Teri Oat Estates Pvt. Ltd. is now an integral part of Section 8-A to protect an allottee against unreasonable or arbitrary action by the Authority under that provision. It necessarily means and the respondents cannot be heard to say otherwise except that the power of resumption can be invoked as a last resort and the action of the Estate Officer is required to be judged on the touch-stone of Article 14 of the Constitution. It implies that the Estate Officer before passing a resumption order shall be obligated to determine whether the breach of terms and conditions of allotment or violation of any building byelaw by the allottee is 'willful' and 'deliberate' or it has ASHWANI KUMAR 2014.10.14 16:58 I attest to the accuracy and integrity of this document CWP No. 12159 of 1995 -5- occurred for the reasons beyond his control? In the case of the latter category it shall not be possible to invoke the power mechanically and resume the property. For example, if an allottee indisputably rents out his residential premises to a tenant for residential purposes only and the tenant in utter defiance to the terms of tenancy starts misusing the premises for commercial purposes against whom the landlord, without any inordinate delay, initiates eviction proceedings under the East Punjab Urban Rent Restriction Act, 1949 (as applicable to UT Chandigarh) inter alia on the ground of misuse of the premises, how can the allottee be held guilty of willful and deliberate violation of the building byelaws? The only recourse in such an eventuality available with the Estate Officer shall be to keep the resumption proceedings in abeyance till the eviction proceedings are decided though he must keep track of the status of eviction proceedings from time to time.
Any attempt deviate from such like fait accompli conditions shall vitiate the action rendering the resumption proceedings to nothing but a colourable exercise and/or abuse of power by the Estate Officer. Similarly, the first or stray violation(s) can hardly justify the impaling effect of 'resumption' and any such casual attempt with a bureaucratic approach deserves serious view in exercise of power of judicial review."
In the light of the judgments referred to above, the power of resumption of plot is a last resort more so in the cases of non payment of the installments. Therefore, we find that the order of resumption of booth is not sustainable. The same are hereby set aside.
Though, the amount of rent of the tenant inducted by the petitioner was payable to the petitioner, but the same has been deposited by the tenant with the Chandigarh Administration directly in terms of the orders passed by this court. Therefore, the amount so deposited shall be adjusted as paid by and on behalf of the Petitioner. The Administration shall calculate the amount due and payable by the petitioner after taking ASHWANI KUMAR into consideration the amount so paid and communicate any amount due 2014.10.14 16:58 I attest to the accuracy and integrity of this document CWP No. 12159 of 1995 -6- and payable by the petitioner within one month. Needless to say that the interest would not be payable on such amount from the date of such deposits. The Petitioner shall pay amount so determined within the next one month. If any amount is found to have been paid in excess, the Administration shall return amount so deposited within a period of two months.
In view of the above, the writ petition is allowed.
(Hemant Gupta) Judge (Jaishree Thakur) Judge 1.10.2014 Ashwani ASHWANI KUMAR 2014.10.14 16:58 I attest to the accuracy and integrity of this document