Punjab-Haryana High Court
Harbinder Singh Dhillon And Anr. vs Union Territory And Ors. on 25 July, 2007
Equivalent citations: AIR2007P&H195, (2007)148PLR639, AIR 2007 PUNJAB AND HARYANA 195, 2008 (1) AIR KAR R 65, (2007) 4 RECCIVR 84, 2008 HRR 1 56, (2007) 4 PUN LR 639, (2007) 3 LANDLR 458
Author: Mahesh Grover
Bench: Mahesh Grover
JUDGMENT Vijender Jain, C.J.
1. This is a petition under Articles 226/227 of the Constitution of India for issuance of a writ of certiorari for quashing orders dated 16-7-2004 (Annexure P20) and 25-8-2006 (Annexure P24) vide which the prayer of the petitioners for re-transfer of the site in question has been rejected by the official respondents. The petitioners have also prayed that a direction be issued to the official respondents to re-transfer S.C.O. No. 3023-3024, Sector 22-D, Chandigarh in their favour by invoking Rule 21-B (wrongly mentioned as Rule 21-A in the writ petition) of the Chandigarh Leasehold of Sites and Buildings Rules, 1973 (for short, 'the Rules').
2. In the year 1976, the official respondents held an auction of commercial sites to be transferred on lease-hold basis in which the deceased-father of petitioner No. 1, petitioner No. 2 and pro-forma respondent Nos. 4 to 6 (hereinafter described as 'the allottees') participated. They were successful bidders insofar as S.C.O. No. 3023-24, Sector 22-D, Chandigarh was concerned and accordingly, the site was allotted to them at a premium of Rs. 2,50,000/- and yearly rent of Rs. 6250/- for first thirty three years. The site was specifically meant for setting up a Lodging-cum-Restaurant. The allottees paid 25% of the premium of the site as per the terms stipulated in the auction proceedings and a copy of the allotment letter dated 25-1-1977 was issued to them. The rest of the amount was to be paid in instalments as per the schedule provided in the allotment letter. Non-compliance of the terms invited penalty and cancellation of the allotment as well as forfeiture of the amount already paid.
3. After making initial deposit of 25%, the allottees took over the possession and constructed the basement and ground floor on the site, but failed to deposit the instalments of the premium which resulted in the proceedings being initiated against them under Rule 20 of the Rules and the allotment of the site in question was cancelled and 10% of the premium and amount of the ground rent was forfeited. The allottees preferred an appeal against the cancellation of allotment, but the same was dismissed on 29-7-1980. They sought to make the payment of the entire amount at that stage, but the official respondents refused to accept the offer and the order of cancellation was upheld by the appellate authority.
4. The revision petition preferred by the allottees with the same plea was also rejected vide order dated 7-6-1989 and as a logical corollary, the Estate Officer of Union Territory, Chandigarh, vide his order dated 26-2-1990, ordered the eviction of the allottees from the site in question under the provisions of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (hereinafter referred to as 'the Act'). This resulted in a separate appeal being filed against order dated 26-2-1990 before the District Judge, Chandigarh which was also dismissed on 24-9-1994. C. W. P. No. 6579 of 1995 filed against the order passed by the District Judge was also dismissed by this Court on 5-8-1995.
5. The allottees, having failed on all fronts, then moved an application on 6-11-1995 to the Estate Officer invoking the provisions of Rule 21-B of the Rules seeking re transfer of the site in question.
6. The official respondents responded to the request of the allottees by sending communication dated 12-7-1996 asking the latter to clear off the entire dues which they calculated and fixed at Rs. 11,20,183/- within a period of thirty days. The allottees promptly paid the amount by sending the requisite drafts, but on 26-7-1996, the drafts were returned to them informing them that their prayer for re-transfer of the site has been considered and rejected. The allottees made representation against the declining of their prayer, which was also rejected on 27-8-1996 by the Estate Officer which led to the filing of an appeal before the Chief Administrator, Chandigarh which was heard and dismissed on 30-5-1997. Along with the said appeal, an appeal filed by one Gurmeet Kaur, who was similarly situated, was also considered, but the Chief Administrator dismissed both the appeals. The allottees thereafter approached the Advisor to the Administrator, Union Territory, Chandigarh under Section 10(4) of the Capital of Punjab (Development and Regulation) Act, 1952 (for brevity, 'the 1952 Act') by way of a revision which was dismissed on 12-1-1998 by observing that there is no remedy of appeal or revision against the order of the Estate Officer passed pursuant to the exercise of his jurisdiction under Rule 21-B of the Rules. The allottees thereafter went on to pursue their representation which they made to the official respondents from time to time.
7. In the meantime, Gurmeet Kaur whose case had been considered by the Chief Administrator along with that of the; allottees, approached this Court by way of C. W. P. No. 18577 of 1998 which was allowed and the Estate Officer was directed to re-consider the matter within a period of three months. The allottees represented that their case be also considered in the light of judgment dated 14-10-1999 passed in Gurmeet Kaur's case. Vide communication dated 19-12-2000, the Estate Officer informed the allottees that their request for re-transfer had been examined and had already been filed by his office on 31-8-1998. The allottees thereafter came to know that subsequent to the order dated 14-10-1999 passed by this Court in C. W. P. No. 18577 of 1998, the case of Gurmeet Kaur was re considered and she was re-allotted the site for which she had made a prayer. The allottees made numerous representations to the official respondents claiming parity with the case of Gurmeet Kaur. They were even called for personal hearing on 16-7-2004, but their prayer for re-transfer was rejected. They then filed C. W. P. No. 14470 of 2004 and pleaded that their case was identical to that of Gurmeet Kaur and the official respondents could not discriminate qua two sets of persons similarly situated. This Court quashed order dated 16-7-2004 vide which their prayer for re-transfer on the basis of parity was rejected and directed the Estate Officer to re-consider the claim of the allottees in terms of the judgment in Gurmeet Kaur's case. However, the case of the allottees was once again rejected vide order dated 25-8-2006 forcing them to file the present writ petition.
8. In response to the notice of motion, the Deputy Commissioner-cum-Estate Officer, Union Territory, Chandigarh has filed, an affidavit stating that Rule 21-B of the Rules conferring discretion on the Estate. Officer to re-transfer a site to the out-going" allottees has since been deleted.
9. A counter-affidavit has been filed by the allottees stating therein that the deletion has come into force with effect from 31-1-2007.
The sole contention raised by the learned Counsel for the petitioners is that under Rule 21-B of the Rules, power to re-transfer has been given to the Estate Officer. This power rests completely on his discretion and, therefore, the same cannot be exercised arbitrarily so as to discriminate between two sets of similarly situated persons. He contended that the case of Gurmeet Kaur was concededly similar to that of the allottees and this fact has been noticed in the order of the Chief Administrator, Union Territory, Chandigarh, who, while disposing of the appeal of the allottees, had taken up the appeal of Gurmeet Kaur as well and had concluded that the identical points of law were involved therein. Ultimately, the request of Gurmeet Kaur for re-transfer had been accepted in her favour, whereas for no reasons whatsoever, the similar prayer of the allottees has not been accepted. Learned Counsel for the petitioners argued that the official respondents cannot discriminate and their action is hit by Article 14 of the Constitution of India.
10. On the other hand, learned Counsel appearing for respondent Nos. 1 to 3 contended that the facts of this case reveal that the allottees had constructed the building and had used the same for business purposes, but had failed to make the deposit and there was no reason to exercise the discretion vested in the Estate Officer by virtue of Rule 21 -B of the Rules in their favour. He, however, could not offer any satisfactory explanation as to why such a discretion has been exercised in favour of Gurmeet Kaur, who was admittedly similarly placed as the allottees. It was also conceded before us that the judgment of this Court in the case of Gurmeet Kaur had not been challenged any further by the official respondents and that on a direction by this Court to re-consider the case of re-allotment, they had given the site to Gurmeet Kaur.
11. Having heard the learned Counsel for the parties at length and having perused the entire record, we are satisfied that the case of the allottees is at par with that of Gurmeet Kaur, who was a petitioner in C. W. P. No. 18577 of 1998. The relevant extracts of Rule 21-B of the Rules, which has bearing on the decision of this case, reads as under:
21-B. (1) In case lease of any site has been cancelled under rule 12 or 20 of the Chandigarh Lease-hold of Sites and Buildings Rules, 1973, for any reasons, the Estate Officer may On an application, re-transfer the site to the outgoing transferee, on payment of an amount equal to 10% of the premium 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 re-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 10% of the price originally payable for such site or 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 re-transfer shall be permissible only if:
(i) Where the lease of the site has been cancelled on ground of misuser, the misuser has stopped.
(ii) Where the lease of the site has been cancelled for non-payment of price, all outstanding dues including forfeiture have been paid.
(iii) Where the lease of the site has been cancelled for breach of any condition of sale, the breach has been remedied and conditions fulfilled.
Notwithstanding anything contained in the proviso above, when lease of the site has been cancelled on ground of misuser or non-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.
xxx xxx xxx
12. From a perusal of the above reproduced provisions, it is evident that the Estate Officer has been conferred upon with a wide discretion in the matter of re-transfer of a site, the allotment of which stands cancelled. Needless to say, such a discretion cannot be exercised at the whims and fancies of the officer concerned. If the benefit is allowed to one person, the same cannot be denied to the other person, who is similarly situated, unless the denial is supported by cogent reasons which can withstand the test of judicial scrutiny.
13. In the instant case, we find that Gurmeet Kaur, who was similarly situated as the allottees were, was given the benefit of Rule 21-A of the Rules, whereas the allottees have been denied the similar benefit. No plausible explanation has been given for such denial, and the reasons which have been put forward for rejecting the prayer of the allottees were also applicable in the case of Gurmeet Kaur. We, thus, find that the action of the official respondents suffers from the vice of discrimination and has to be quashed.
14. Accordingly, this writ petition is accepted and the official respondents are directed to re-transfer the-site in question to the allottees in the same terms as has been done in the case of Gurmeet Kaur. The needful be done within a period of three months from the date of receipt of a copy of this order