Punjab-Haryana High Court
Rupinder Kaur Cheema vs Chandigarh Admn. & Ors on 8 December, 2014
Author: Hari Pal Verma
Bench: Hemant Gupta, Hari Pal Verma
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
C.W.P. No.13108 of 2000
Date of decision: 08.12.2014
Dr. Rupinder Kaur Cheema
-----Petitioner
V/s
Chandigarh Administration & others
-----Respondents
CORAM:- HON'BLE MR. JUSTICE HEMANT GUPTA
HON'BLE MR. JUSTICE HARI PAL VERMA
1. Whether reporters of local newspapers may be allowed to see
judgment?
2. To be referred to reporters or not?
3. Whether the judgment should be reported in the Digest?
Present:- Mr. Arun Jain, Sr. Advocate with
Mr. Abhishek Dhull, Advocate
for the petitioner.
Mr. Deepak Sharma, Advocate
for respondents
---
HARI PAL VERMA, J.
By way of present writ petition, the petitioner has invoked the jurisdiction of this Court under Article 226/227 of the Constitution of India, claiming therein that proceedings initiated under Section 8-A of the Capital of Punjab (Development & Regulation) Act, 1952 (for short, "the Act of 1952) and order dated 19.3.1993 (Annexure P-3) of resumption of site/building No.1721, Sector 34-D, Chandigarh and forfeiture of an amount of Rs.415/- are illegal. Challenge has also been made to the orders Annexure P-4 dated 22.12.1998 and Annexure P-5 ASHWANI KUMAR 2014.12.18 11:51 I attest to the accuracy and integrity of this document High Court Chandigarh C.W.P. No.13108 of 2000 2 dated 22.5.1999 whereby appeal and revision filed against the order of resumption were dismissed.
Briefly stated, the petitioner was allotted site No.1721, Sector 34-C, Chandigarh. The petitioner constructed a residential house and rented out the same to Sharad Kumar Sinha, respondent no.4, for the purpose of residence. However, respondent no.4 instead of using the said premises for residential purpose, started running a school under the name and style of 'Amandeep School' and thus, violated the terms and conditions of the tenancy. The petitioner initiated ejectment proceedings against respondent no.4 on the ground of change of user under Section 13 of the East Punjab Urban Rent Restriction Act, 1949 (for short, "the Act of 1949"), whereupon the eviction of respondent no.4 was ordered vide order dated 11.11.1999. Respondent no.4 filed an appeal under Section 15 of the Act of 1949 against the above said eviction order. The Estate Officer i.e. respondent no.3, initiated proceedings under Section 8-A of the Act of 1952, while eviction proceedings were pending, on the ground that the premises in question are being misused. It has been submitted that though no notice of the proceedings initiated under Section 8-A of the 1952 Act was served upon the petitioner yet respondent no.4 in connivance with the officials of the Estate Officer, proceeded to receive the notice and personally appeared before the Estate Officer on the date fixed. In this manner, vide order dated 19.3.1993, respondent no.3 ordered resumption of the site/building i.e. House No.1721, Sector 34-C, Chandigarh and also ordered forfeiture of ASHWANI KUMAR 2014.12.18 11:51 I attest to the accuracy and integrity of this document High Court Chandigarh C.W.P. No.13108 of 2000 3 10% of the total amount of premium i.e. Rs.415/- plus interest and other dues payable in respect of the sale of the site.
When the order of resumption (Annexure P-3) came to the notice of the petitioner, she filed a statutory appeal against the order of resumption. However, respondent no.2 dismissed the appeal vide order dated 22.12.1998 (Annexure P-4), as the misuse, on the basis of which the site was resumed, was still continuing. Petitioner further challenged the order dated 22.12.1998 by way of revision petition and respondent no.1 afforded another opportunity to the petitioner to remove the misuse and restored the site, subject to the condition that the misuse in the premises is removed within 45 days, reckonable from the date of dispatch of the order, failing which, the order of the Estate Officer shall become operative. Petitioner has pleaded that she verified at the spot that there is no misuse of the site, but in view of pendency of the appeal of respondent no.4 before the Appellate Authority, petitioner has filed the present writ petition and has challenged the order of resumption.
It is the order of resumption dated 19.3.1993 (Annexure P-
3) followed by order dated 22.12.1998 (Annexure P-4) in appeal and the order dated 22.9.1999 (Annexure P-5) passed in revision petition, which are subject matter of challenge through the instant writ petition.
In the written statement, respondents no.1 to 3 have not disputed the allotment of plot No.1721, Sector 34-C, Chandigarh to the petitioner vide letter dated 28.11.1967 for residential purpose only. However, since the owner further permitted the use of site for running a school under the name and style of 'Amandeep School', a show cause ASHWANI KUMAR 2014.12.18 11:51 I attest to the accuracy and integrity of this document High Court Chandigarh C.W.P. No.13108 of 2000 4 notice dated 7.9.1992 was issued to the owner/occupier as to why the site under reference be not resumed under Section 8-A of the Act of 1952, but despite various opportunities afforded to the petitioner, neither the owner nor the occupier of the premises removed the misuse and therefore, in view of violations of the terms and conditions of the allotment letter, resumption of the site was ordered vide letter dated 19.3.1993.
We have heard learned counsel for the parties The writ petition was admitted on 28.5.2002 and further, vide order dated 19.3.2004, this Court while adjourning the case to 9.4.2004, directed the counsel for Chandigarh Administration to find out whether the misuse, which resulted into passing of resumption order, is still continuing or not. In response to the order dated 19.3.2004, respondent no.3 has submitted a status report wherein the factum of removal of misuse from the site has been admitted. In the status report, it is also submitted that as the site has already been resumed vide order dated 19.3.1993 and once the resumption order has attained finality, the only remedy available to the petitioner is to file an application for re- transfer of the site to the Estate Officer, who is competent to consider such application on the terms and conditions mentioned in the rules.
Further again, vide order dated 6.9.2013, this Court had directed the respondents to file status report with regard to misuse of the site in question and in response thereto, the respondents have submitted an inspection report dated 6.12.2014, the contents of which are as under:-
ASHWANI KUMAR 2014.12.18 11:51 I attest to the accuracy and integrity of this document High Court Chandigarh C.W.P. No.13108 of 2000 5
"I inspected the House No.1721, Sector 34-D, Chandigarh today i.e. 06.12.2014 and found that House is constructed upto ground floor and Sh. Kashi Ram, Chowkidar was present. No misuse is found at the time of inspection.
Submitted please.
Sd/- Inderpal Singh Kehpar (SIE) 6.12.14 Sd/- (Amrinder Singh) 8.12.14 Tehsildar (Misuse)"
In the light of the inspection report, it is clearly established that no misuse has been found. We may also refer to judgment of the Hon'ble Supreme Court in Teri Oat Estates (P) Ltd. Vs. U.T. Chandigarh & others (2004) 2 SCC 130, wherein it has been held that resumption or a cancellation of lease should be resorted to as a last resort. The observations made by Hon'ble the Supreme Court read 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 willful 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 ASHWANI KUMAR 2014.12.18 11:51 I attest to the accuracy and integrity of this document High Court Chandigarh C.W.P. No.13108 of 2000 6 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 on the rights, liberties or interests of persons keeping in mind the purpose which they were intended to serve."
xx xx xx xx xx
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(1) can be taken recourse to."ASHWANI KUMAR 2014.12.18 11:51 I attest to the accuracy and integrity of this document High Court Chandigarh C.W.P. No.13108 of 2000 7
In view of the fact that when misuse has since been stopped, therefore, the purpose of the proceedings under the Act stands achieved that buildings should be used only for the purpose, it was allotted. Once the misuse no more exists, the order of resumption is liable to be quashed.
Accordingly, the present writ petition is allowed and the order of resumption of the site in question dated 19.3.1993 (Annexure P-
3) is quashed. Similarly, order dated 22.12.1998 (Annexure P-4) passed in appeal and order dated 22.9.1999 (Annexure P-5), passed in revision are also quashed, with a direction to the petitioner that she shall furnish an undertaking to respondent no.3 within one month that she shall not raise any unauthorized construction and shall use the premises only for the purpose contemplated under the Act and the rules framed there under.
( HEMANT GUPTA ) ( HARI PAL VERMA )
JUDGE JUDGE
December 08, 2014
ak
ASHWANI KUMAR
2014.12.18 11:51
I attest to the accuracy and
integrity of this document
High Court Chandigarh