Punjab-Haryana High Court
Niranjan Singh vs Chd.Housing Board & Ors on 27 October, 2014
Equivalent citations: AIR 2015 (NOC) 151 (P.& H.)
Author: Jaishree Thakur
Bench: Hemant Gupta, Jaishree Thakur
CWP No.8413 of 1998 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CWP No.8413 of1998 (O&M)
Date of decision:27.10.2014
Niranjan Singh ...Petitioner
Versus
Chandigarh Housing Board & others ...Respondents
CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA
HONBLE MS. JUSTICE JAISHREE THAKUR
(1) Whether Reporters of Local Papers may be allowed to see the
judgment? Yes / No
(2) To be referred to the Reporters or not? Yes / No
(3) Whether the judgment should be reported in Digest? Yes / No
Present: Mr. S.S. Duhan, Advocate for
Mr. R.K. Bansal, Advocate for the petitioner.
Mr. Sanjay Kaushal, Senior Advocate with
Mr. A.P. Setia, Advocate for the respondents.
Jaishree Thakur, J.
The challenge in the present writ petition is to the show cause notice dated 6.1.1995 and order dated 16.5.1995, passed by Chairman, Chandigarh Housing Board cancelling the allotment of dwelling unit No. 217/2 (LIG), Sector 41-A, Chandigarh, which was allotted to the petitioner vide letter dated 28.12.1982.
Shri Niranjan Singh, allottee of the said dwelling unit, gave a General Power of Attorney in June, 1984 to Ranjit Singh, husband of Smt. Nirmal Kaur husband of the petitioner. An agreement to sell of the RAJ PAL SINGH 2014.11.05 16:14 I attest to the accuracy and authenticity of this document Chandigarh CWP No.8413 of 1998 2 said unit was entered into between the allottee Shri Niranjan Singh and late Shri Ranjit Singh. Shri Niranjan Singh also executed a valid Will which was registered on 2.7.1984 in favour of Shri Ranjit Singh. It is submitted that Shri Ranjit Singh, paid regular installments towards the said dwelling unit and a total sum of Rs.30,937/- had been deposited. Since Ranjit Singh fell ill, he could not deposit the installments after September, 1995. The Housing Board served a show cause notice for not depositing the due installments. This letter, in fact, was not received by the petitioner but it was received by the tenant who did not hand it over to the petitioner. After the death of Shri Ranjit Singh, his wife Smt Nirmal Kaur approached the respondents to make the payment towards the dwelling unit and was informed that the dwelling unit had been cancelled on account of non-payment of the installments. Smt Nirmal Kaur approached the respondents against the cancellation and offered to pay the entire outstanding amount and prayed for restoration of the cancellation of the house but to no avail.
Aggrieved against the order of cancellation, the present writ petition has been filed. It is contended by the petitioner that a sum of Rs.30,937/- had been deposited and the balance could not be paid on account of ill-health. It is also contended that the said dwelling unit was cancelled without giving any opportunity of hearing.
Notice of the writ petition was issued and reply to the said writ petition has been filed in court now. The respondent Board has taken the stand that as per terms and conditions of the allotment letter, the RAJ PAL SINGH 2014.11.05 16:14 I attest to the accuracy and authenticity of this document Chandigarh CWP No.8413 of 1998 3 allottee namely Niranjan Singh could not sell, alienate or transfer his rights or interest in the property till he became the owner or a period of ten years from the date of actual possession, whichever is later. It is contended that the original allottee Niranjan Singh executed a General Power of Attorney, Special Power of Attorney, Agreement to sell and a Will in favour of Ranjit Singh in violation of the terms and conditions of the allotment. It is also stated that a sum of Rs.22,613/- is due and payable as on 31.12.2013 from the allottee.
We have gone through the pleadings of the parties and find that the allotment has been cancelled on account of non-payment of the installments. The categorical stand of the petitioner is that no opportunity of hearing was given before the cancellation of the dwelling unit in terms of Rule 17 of the Chandigarh Housing Board (Allotment, Management and Sale of Tenements) Regulations, 1979, which reads thus:
"17. Cancellation of lease.-
The Board may cancel the lease of any allottee or hirer of a particular portion/flat on the grounds of breach of any conditions of allotment and forfeit whole or part of the money already paid to the Board and thenceforth the property shall vest in the Board.
Provided a reasonable opportunity of being heard is provided to the allottee/hirer before cancelling the lease."
The said rule categorically provides that a reasonable opportunity of being heard is to be provided to the allottee or hirer before cancelling the lease. In the written statement filed, it could not be shown as to any RAJ PAL SINGH 2014.11.05 16:14 I attest to the accuracy and authenticity of this document Chandigarh CWP No.8413 of 1998 4 reasonable opportunity of being heard had been afforded before cancelling the lease. The show cause notice had been issued but the same was not delivered to the allottee. The plea of the respondents that the allottee could not have sold or transferred his dwelling unit for a period of ten years from the date of actual possession is not tenable as the cancellation of the dwelling unit was not on account of a transfer, but was only on account of the fact that full installments had not been paid.
As per the allotment letter, 179 installments were to be paid up to 10.1.1988. Admittedly, 148 installments up to 10.6.1995 and also the ground rent had been deposited. The order of cancellation would be too harsh in a case where most of the installments stood deposited. 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.A full bench of our own High Court reported as "Dheera Singh v. U.T. Chandigarh Administration, ILR (2013) 1 P&H 217", has gone into the question of resumption of building . It has been held that 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 bye law by the allottee is 'willful' and 'deliberate' or it has occurred for the reasons beyond his control.
"(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 RAJ PAL SINGH 2014.11.05 16:14 I attest to the accuracy and authenticity of this document Chandigarh CWP No.8413 of 1998 5 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 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 bye-laws? 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."RAJ PAL SINGH 2014.11.05 16:14 I attest to the accuracy and authenticity of this document Chandigarh CWP No.8413 of 1998 6
In the present case, there is a cancellation of the allotment letter on the ground of non-payment and therefore applying the above principle it is held that the cancellation of the plot without giving an adequate opportunity of hearing is not justified. Rule 17 of the Chandigarh Housing Board (Allotment, Management and Sale of Tenements) Regulations, 1979 also specified that there should be a reasonable opportunity of hearing which has not been afforded in the present case. Still further, there is no finding in the order of cancellation that the non deposit is either deliberate or willful.
In the interest of equity and justice, we deem it appropriate to set- aside the cancellation order dated 16.5.1995 subject to the condition that the petitioner pays the outstanding amounts to the Chandigarh Housing Board.
Therefore, we direct that the Respondent Board to inform the petitioner the exact amount due within a period of one month. The petitioner is required to make the said payment within a period of two months from the date of receipt of communication.
With these direction the above noted writ petition stands allowed with no order as to costs.
(HEMANT GUPTA) (JAISHREE THAKUR)
JUDGE JUDGE
27.10.2014
'Rajpal'
RAJ PAL SINGH
2014.11.05 16:14
I attest to the accuracy and
authenticity of this document
Chandigarh