Punjab-Haryana High Court
Jagtar Singh vs Chandigarh Administration And Ors on 27 February, 2012
Equivalent citations: AIR 2012 PUNJAB AND HARYANA 101, (2014) 1 PUN LR 300
Author: Hemant Gupta
Bench: Hemant Gupta, A.N.Jindal
CWP No. 2932 of 2009 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Date of decision: 27.2.2012
CWP No. 2932 of 2009
Jagtar Singh ......Petitioner
vs.
Chandigarh Administration and ors .....Respondents
Present: - Mr. Amaninder Preet, Advocate for the petitioners.
Mr. H.S. Sethi, Advocate for respondents Mr. R.S Bhatia, Advocate for Punjab National Bank.
CORAM: -HON'BLE MR. JUSTICE HEMANT GUPTA HON'BLE MR. JUSTICE A.N.JINDAL HEMANT GUPTA, J Challenge in the present petition is to the orders dated 30.7.2008 (Anneuxre P-25), whereby an application for extension of time to comply with the orders dated 20.8.1975 was dismissed; the order dated 27.10.2008 (Annexure P-26) whereby the review petition against the order dated 30.7.2008 (Annexure P-25) was dismissed and dated 10.1.2008 (Annexure P-27) whereby the proceedings under the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 initiated against the petitioner was allowed.
We have heard learned counsel for the parties. We find that substantially the prayer of the petitioner is for extention of time in removing the violations in terms of the order passed by this Court on December 2,1999 (Annexure P-8).
Petitioner Jagtar Singh, since deceased, was allotted SCF No. 65, Grain Market, Sector 26, Chandigarh in an open auction in the year CWP No. 2932 of 2009 -2- 1955. The letter of allotment was issued on 6.1.1956. The said site was resumed on 4.2.1969 on the ground of non completion of the construction. The stand of the petitioner was that the building has been constructed but the occupation certificate has not been issued. It was on 21.6.1975, sewerage connection was granted. On 20.8.1975 vide the order (Annexure P-5), the site was restored to the petitioner subject to the condition that the petitioner shall complete the building according to sanctioned plan and obtain occupation certificate by 31.3.1976. An application was filed by the petitioner to treat the sewerage connection as the occupation certificate and an application for grant of extention of time limit as the building stands completed. But the request of the petitioner was declined vide the communication (Annexure P-6) dated 4.6.1980. The petitioner challenged the said communication after the review application was dismissed in CWP No. 5357 of 1989 which decided on 2.12.1999. Relevant extract reads as: -
"The learned counsel for the petitioner, at the instructions of his client, who is present in Court, states at the bar that the petitioner shall remove all the objections which have been raised by the respondent-Department in the joint inspection report dated 6.10.1999, within six months from today and the petitioner after removing the objections, shall also apply for the occupation certificate. On removal of the objections and on providing occupation certificate, the impugned order Annexure P-4 dated 24.1.1989 shall stand quashed with all ancillary and interim orders passed by the authorities and in that eventuality, the site in dispute shall not be resumed. If the objections as raised above, are not removed, within the stipulated period and also if the petitioner does not apply for occupation certificate as stated above, the present petition shall be deemed to have been dismised for all intents and purposes."
Petitioner submitted a revised plan for approval on 11.2.2000 CWP No. 2932 of 2009 -3- (Annexure P-11) and also sought occupation certificate vide Annexure P-13. The application for extension of time of the time limit was declined vide the order dated 30.7.2008, (Annexure P-25). The review petition was also dismissed on 22.10.2008 (Annexure P-26).
It appears that there was dispute between the deceased Jagtar Singh and one of his son who was residing on the second floor of the building. The occupation certificate was not issued for the reason that bathroom constructed on the second floor is unauthorized. Since one of the sons of the petitioner was in possession of the second floor and not having good relations with his father, therefore, the petitioner was helpless as neither he could remove the unauthorized construction nor the administration will grant him occupation certificate on account of unauthorized construction. The various efforts by the petitioner for removal of the unauthorized construction from the portion in possession of his son remained unsuccessful.
During the pendency of the present petition, the petitioner died. The legal representationves have been impleaded. An inspection was carried out in terms of the earlier order passed by this Court. From the said inspection report, it transpires that sewerage connection has been granted on 21.6.1975 and that validity of the site plan is compundable by charging Rs. 1,000/- at the time of occupation certification. It has further been mentioned that violations at No. 1 and 2 are compundable at the time of occupation certificate whereas the violations No. 3, 4 and 5 have been set right at the site.
In view of the said fact, we find that the petitioner has complied with the conditions imposed by this Court on 2.12.1999 though after gross CWP No. 2932 of 2009 -4- delay. Such delay was caused on account of dispute in the family. The violation was also of unauthorised construrction of bath room. Therefore, to permit the resumption of the site in which unauthorized construction stands removed will case irrepairable loss and injury to the petitioner. We feel that depriving the petitioner of his property is harsh and runs counter the judgment of Full Bench of this Court in Ram Puri, Chandigarh vs. Chief Commissioner, Chandigarh, AIR 1982 P & H, 301 and Hon'ble the Supreme Court in Teri Oat Estates (P) Ltd vs. U.T. Chandigarh and ors, (2004) 2 SCC 130, wherein, it has been held that the orders of resumption of a building is a last resort. It observed:
"24. It is, therefore, not a case where the court will have to take one stand or the other in the light of the statutory provisions. The question as to whether the extreme power of resumption and forfeiture has rightly been applied or not will depend upon the factual matrix obtaining in each case. Each case may, therefore, have to be viewed separately and no hard- and-fast rule can be laid down therefor. In a case of this nature, therefore, the action of the Estate Officer and other statutory authorities having regard to the factual matrix obtaining in each case must be viewed from the angle as to whether the same attracts the wrath of Article 14 of the Constitution of India or not.
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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 the 19th century in Russia and was later adopted by Germany, France CWP No. 2932 of 2009 -5- 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 on the rights, liberties or interests of persons keeping in 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 Appellate 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 to. 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.
We may notice that Jagtar singh has mortgaged the property in question to the Punjab National Bank to avail financial assistance. Since, the building was resumed, the Bank was unable to realize its dues. The CWP No. 2932 of 2009 -6- extension of time to remove the violations will serve the larger public interest as well as, the Bank will be able to realize its dues against the mortgaged property.
Therefore, we allow the present petition with direction to Administration to sanction revised plans and communicate the composition fee to the petitioner. On such communication, the petitioner shall deposit the requisite amount within a period of one month.
If the petitioner deposits the said amount within a period of one month, the resumption proceedings will stand set aside, otherwise the resumption will remain in force.
Disposed of in the above terms.
(HEMANT GUPTA) JUDGE (A.N.JINDAL) JUDGE 27.2.2012 preeti