IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.2569 of 2005(O&M) Date of decision: 03.02.2010 Bahadur Singh and another ....Petitioners versus Chandigarh Administration, Chandigarh and others ...Respondents CORAM: HON’BLE MR. JUSTICE K. KANNAN ---- Present: Mr. Arun Jain, Senior Advocate with Mr.Amit Jain, Advocate, for the petitioners. Mr. K.K.Gupta, Advocate, with Ms. Uma Gupta, Advocate, for the respondents. ---- 1. Whether reporters of local papers may be allowed to see the judgment ? Yes. 2. To be referred to the reporters or not ? Yes. 3. Whether the judgment should be reported in the digest ? Yes. ---- K.Kannan, J. I. Tenant’s change of user without landlord’s consent giving rise to action of resumption 1. The tenability of a rejection of a prayer for reviewing a resumption order is the subject of challenge in this writ petition. The impugned order dated 27.06.2005 repulsed the plea of the petitioner for restoration of the site over which the petitioner has put up a multi-storeyed construction. The resumption had been ordered originally on the ground that the petitioners’ tenant had put the property for a commercial use when the allotment had been only for a residential purpose and by such conduct of the tenant, the property had been directed to be resumed as early as on 04.05.1976. The petitioners had preferred an appeal and Civil Writ Petition No.2569 of 2005(O&M) - 2 - revision successively but the original order was retained. Between the order of resumption made in the year 1976 and a claim for reviewing the decision that was rejected on 27.06.2005, there are many an event that are worthy of note for addressing the issues involved in the case. II. Landlord’s failed action for eviction of tenant and Administration’s own reluctance to evict by self-imposed stay 2. The petitioner was a transferee of free hold 10 marlas plots on which the petitioner had raised a 2 ½ storeyed building described as House No.1293 in Sector 21-B, Chandigarh. The ground floor of the property was rented out to one Sukhpal Singh and Narinder Pal Singh for residential purpose and the remaining portion of the building had been retained by the petitioners for their own residential living. The contention of the petitioners was that the tenant was apprised of the provisions of the Capital of Punjab (Development and Regulation) Act of 1952 and warned the tenants against any kind of user which was against the original terms of the allotment of the plot. It appears that the tenant has set up a dairy under the name and style of Baba Dairy without the permission of the petitioners and just as the landlord was initiating action against the tenant, the Chandigarh Administration also treated the change of user as constituting a ground for resumption. The tenant was just not a single individual who has making such a change of user but there were a host of others who were doing the same profession in dairy and dairy products in residential zones and they had brought to bear sufficient political clout to stall action for eviction. The petitioners’ action for ejectment of the tenant before the Rent Controller for change of user of the premises had been dismissed on 04.02.1978 on a technical plea Civil Writ Petition No.2569 of 2005(O&M) - 3 - which by the time the eviction action was in progress held a position of law that the legal heirs of a tenant would not be treated as a tenant under the East Punjab Restriction Act. It was a situation where the original tenant had expired and it was a statement in defence by the persons in possession that there was no privity of contract between the landlord and the sons of the original tenant. The petitioners had to accept the verdict of the Court and wait for the administration to take appropriate action. The petitioners had themselves approached the Estate Officer, Chandigarh Administration by their letter dated 18.11.74 to help the petitioners by removing the misuse of the property by the legal heirs of the original tenants. An order of resumption was quickly passed by the administration on 04.05.1976 and action was also taken under the Public Premises (Eviction of Unauthorized Occupants) Act of 1971, in the year 1977. The action was initiated only against the tenants of the petitioners since they were the persons in possession and this was also done only at the behest of the petitioners and to secure to them their possession after abating the misuse by the tenant. An order of eviction had also been passed on 20.03.1978. III. Administration’s soft approach against dairy operators for political considerations 3. However, the tenants were making a common ground along with several other dairy operators by forming themselves as an association called the Creamy and Dhodi Union to increase their bargaining power and stall the administration from putting the order of eviction They were reported to have made a representation through their Union on 30th March 1978 to the Finance Secretary not to evict them and the latter Civil Writ Petition No.2569 of 2005(O&M) - 4 - himself, by his order dated 26.04.1978 stayed the eviction proceedings in supersession of the earlier order passed by the Appellate Authority on 20.03.1978. It was in purported consideration of relocating all the daily operators to some other place and not to precipitate the issue by causing the eviction of the tenants and this is evident from the fact that the letter of the Finance Secretary contains an endorsement in the following words: “Sh.Manmohan Rattan, Assistant Enforcement today informed that the worth F.S. has ordered vide Memo No. 2287- UTFD (III) 78/6911 dated 26.5.78 that the proceedings fell under the PP Act be stayed until the case of creation of sites is decided” . The petitioners had at their hands simultaneously two problems, one created at the instance of the tenant, who was misusing the premises and exposing the landowner to a scope for action for recovery by resumption and another at the instance of the Chandigarh Administration itself in fettering its own powers to enforce the order of eviction, by acceding to the demands of the dairy operators that they could all be evicted from the residential areas without making provision for relocating them. IV. Staying the operation of eviction order against dairy operators and taking action for eviction on the ground of misuse exposes duplicity of administration 4. After deciding to stay eviction for other consideration, the Administration could not have validly sustained the order of resumption, but that was what done precisely, when the appeal filed by one of the petitioners dismissed the appeal holding that the appeal was beyond time by its order dated 14.12.1979. A revision filed by the owner was again dismissed on 26.5.1981 without addressing the issue of how, and when Civil Writ Petition No.2569 of 2005(O&M) - 5 - the administration itself had opted to stay the order of eviction, it could visit the consequences of misuse by the tenant against the owner. The tenants were not to be out-witted and through the association that was operating from the petitioners’ premises itself, they were trying to legitimize their possession and the change of user. They had petitioned to the Government of India on 22.3.1982 to issue licences to them and several other dairy operators for carrying on with their avocation. The Additional Private Secretary to the Home Minister appears to have recommended to the Chief Commissioner that the request of the association seemed reasonable and he had informed to convey the view to the Home Minister that the claims of the dairy operators were to be considered on sympathetic ground. The administration started therefore issuing provisional licences to all persons including the legal heirs of the tenant of the petitioner for continuing with their business, although it was the very same reason that led to passing an order of resumption of the premises and the order of eviction. The utter double standards of the Administration becomes too obvious by an act of utter duplicity of allowing the dairy operators to continue and at the same time initiating fresh action for resumption by again issuing a notice of resumption on 14.12.1987 for misuse by the tenant. V. Second order of eviction under PP Act and decision not to recall the resumption order, passed without taking into account the intervening event of self imposed stay are unjust (a) Administration's first act of volte face 5. The notice was not pursued but the Administration revived their own action for eviction under the PP Act both against the owner and Civil Writ Petition No.2569 of 2005(O&M) - 6 - the tenant. This was on a specific ground that the stay was no longer operating and fresh eviction warrant could be issued in the name of a new area inspector. It is not known how and on what basis it was stated that the Finance Commissioner had vacated the order of stay, because there were fervent pleas by the owner through his letter to the Estate Officer and letters of the petitioner to the Finance Commissioner on 27.7.1990 and 8.10.92 that the stay granted in favour of tenant should be vacated. The Estate Officer proceeded to pass a fresh order on 9.11.1998 for eviction. Appeal had been filed before the Appellate Authority by both the owners and the tenants and the authority, by his order dated 21.5.1999 remitted the matter for fresh consideration of the Estate Officer, in view of the peculiar situation that the tenants were continuing to occupy by virtue of orders of stay by the State itself and no action for eviction could be made without considering the objection of tenants that they should be provided alternate place for accommodation. The Estate Officer did not consider the case afresh as was directed to do, but merely relied on the first order of resumption and eviction made between the years 1976 and 1978 and rejected the plea by the owner and the tenants by his order dated 9.11. 1999. An appeal had filed before the District Court in MCA 12 of 2000 and one Sh.R.K.Arora, Sub Inspector, Estate office made a statement that the eviction would not be pressed forth, in view of the fact that the tenant had voluntarily vacated and the misuse had since abated. The appeal was therefore allowed to be withdrawn on 10.8.2000. Civil Writ Petition No.2569 of 2005(O&M) - 7 - (b) The subsequent orders that give rise to writ petition 6. This order permitting the withdrawal of the appeal was recalled at the instance of the Administration on the ground that Sh.Arora had no authority to give such a concession and hence the order was recalled and posted for hearing afresh. The manner of dismissal of the District Judge on 3.10.2002 was indeed strange; he did not refer to the scope of direction given by his predecessor in his order of remand dated 21.5.1999 and pontificated that the Administration ought not to have thrown the file in the gutter as it were, and found fault with the administration in not immediately evicting the owner and the tenant for the misuse of the premises. This order had been put in challenge in Civil Writ Petition No. 17812 of 2002 but it was permitted to be withdrawn on a plea on behalf of the owner that he would pursue his remedy for restoration of his possession with the authorities. Such an application had been filed to the Estate Officer first on 20.11.2002 and reminders sent on 29.9.2004, 21.10.2004, 16.11.2004 and 22.12.2004. The Administration passed an independent order to seal the premises on 14.1.2005 that gave rise to the writ petition. Subsequently, the plea for restoration was rejected by the Estate Officer on 27.6.2005 on the ground that he had no power to review the decision under the Capital of Punjab (Development and Regulation) Act 1952. A plea for review in Review Petition No 127 of 2004 was also dismissed as not maintainable. The writ petition was amended to include the prayer to set aside these decisions also. Civil Writ Petition No.2569 of 2005(O&M) - 8 - (c ) Tenant's voluntary vacation, a justifiable ground for recalling the resumption order. 7. During all the time when proceedings against orders of eviction under the PP Act were perused, alongside were actions taken for cancelling the resumption order, citing the very same changed circumstances of the tenant vacating the premises. The petitioner had filed a fresh appeal once again against the order of resumption made on 04.05.1976 in Appeal No. 350 of 2000 before the Chief Administrator on the changed circumstance that the tenant had himself vacated the premises and the misuse had abated by fortuitous circumstances but inexplicably, the Appellate Authority proceeded to dismiss it on 3rd October 2001 on the ground that there could not be a second round of appeal. It could have been perfectly legitimate for the Chief Commissioner UT, exercising the powers of Appellate Authority to re- examine the issue in view of the changed circumstances and the appeal as emanating to review the decision of the Estate Officer to resume the building. The revision filed to the Advisor to the Administrator in Revision No 3 of 2003 was also dismissed on the same ground of non- maintainability, which line of reasoning, in my view is untenable. These orders are also assailed in the writ petition. 8. The preliminary objection which is taken by the respondent is that when an order of resumption had been appealed against in the year 1978 and when it was dismissed, it was not possible to renew the same prayer in subsequent proceedings. The writ petition which had been filed in Civil Writ Petition No.17821 of 2002 was allowed to be withdrawn and constituted an abandonment and consequently, the petitioners were not Civil Writ Petition No.2569 of 2005(O&M) - 9 - entitled to claim re-entry into possession of the property. 9. The long and short of the narration of events would show the following: The petitioners faced action for resumption on account of misuse of the premises by the legal heirs of the original tenant. Both the landlord and the Chandigarh Administration were taking simultaneous actions for eviction of the tenant, both on the same grounds, the landlord on the ground of change of user and the administration, who acted on a tip off from the owner himself, also on the ground of misuse by the tenant. It was not the contention of the administration that the landlord had deliberately caused the misuse or it had permitted the tenant for a change of user for non-residential purpose. On the other hand, when the Chandigarh Administration was taking action under the Capital of Punjab (Development and Regulation) Act of 1952, it had taken action only against the legal heirs of the tenants and not against the petitioners, since the action had been initiated on a complaint from the petitioners themselves. If it had allowed the issue to its logical end, it would have been possible for the property to be evicted from the hands of the tenant and restored to the benefit of the original owners. The Chandigarh Administration itself was responsible for allowing the continuance of the misuse and by the proceedings of the Finance Secretary, even the action taken for eviction under the Public Premises Act had been stayed. The Administration knew that by its decision alone, the dairy operators had been allowed to continue in possession of the properties and carry on the trade within the residential zones. The administration must have themselves undertaken the exercise and considered the request for Civil Writ Petition No.2569 of 2005(O&M) - 10 - reviewing its earlier decision in the light of the circumstance that the misconduct of the tenant could not have been attributed to the petitioners themselves. The petitioners and the administration had a common agenda at one time to prevent the misuse. The petitioners could not be termed to be even slack in their attempt to evict the legal heirs of the tenant. The administration ultimately rejected the plea of the petitioners only on the ground that an earlier order of resumption made had become final and a writ petition that had been filed was withdrawn. (d) Administration's permission to the tenant to continue cannot prejudice petitioner. 10. A direction for eviction for misuse is a quasi judicial function. The Estate Officer had treated the order of resumption and eviction passed in the year 1976 and 1978 as rendered ineffective by issuing a fresh notice on 14.12.1987. It was a conscious decision giving rise to a new cause of action and the objection to this notice by the petitioners ought to have been considered on its own merits. The Administration itself must take some part of the blame in allowing political intervention to prevail and permit the legal heirs of the tenant to continue in possession till the year 2000. 11. The learned senior counsel Sh. Jain argued that a writ petition that is dismissed as not pressed to avail of an alternative remedy could not operate as res judicata when a fresh challenge is mounted on the basis of the subsequent order passed by authorities while invoking such alternate remedy. He cites in support of his contention the decision of the Supreme Court in Pujaril Bal Versus Madan Gopal-AIR 1989 SC 1764. Sh.K.K.Gupta appearing for the Administration, on the other hand Civil Writ Petition No.2569 of 2005(O&M) - 11 - submits, referring to the decision HUDA Versus Roochitra Ceremics 1996 HRR 592 (SC) that a show of benevolence under Art 226 is not correct, in the context of court’s intervention on a matter of cancellation of allotment by HUDA for non-payment of installments. He also relied on Jyotsna Kohli Versus Union Territory of Chandigarh-(2004) 3 PLR 316 to contend that the propriety or otherwise of the orders passed by the Estate Officer could only be examined from the stand point of the provisions of Capital of Punjab (Development and Regulation) Act 1992 and the rules framed there under. In that very case in Jyotsna Kohli (supra), the Hon’ble Supreme Court directed the Estate Officer to examine whether a plea put forward by the owner that the misuse of a portion of the premises was at the instance of a tenant without the authority of the owner and remitted the matter for fresh consideration (vide para 9 of the judgment). In this case, it is a matter of admission that the tenant’s misuse was without authority and the owner had event taken action for eviction on that ground before the Rent Controller, though he failed on a technical plea by the tenant that Rent Control proceedings could not be resorted to for action against heirs of tenant. Again, the first action for resumption and the eviction under PP Act by the Administration had been taken only acting on the representation of the owner himself. To visit the owner with the consequence of resumption and sealing the premises constructed on a freehold for a wrong that the owner did not commit does not accord with any canon of justice. The administration is wooden in its approach and treats it as another case of violation of conditions of allotment. It must be Civil Writ Petition No.2569 of 2005(O&M) - 12 - remembered that owner had done no wrong; he had not been slack; he was not taking advantage of any mistake done by the tenant. A worthy investment through construction by the owner is sought to be snatched by deceit by the Administration that ill-behoves a public authority. (e) Judicial decisions on how power of resumption is to be exercised. 12. Resumption orders, in the nature of things, constitute an extra ordinary power. It shall be resorted to with utmost caution. The purpose of the Act is to regulate appropriate zoning and planned town development. It is not an expropriatory piece of legislation. The administration should always keep in view whether the owner is guilty of any breach to visit him with the extraordinary order of resumption because it has the consequence of not only forfeiting the right in land but, with telling effect, also the value additions of costly construction made by the owner. There is a plethora of decisions that disapprove of resumption powers, when the landlord himself has not caused any violation of conditions of allotment of freehold plots. In M/s Naresh Departmental Store Versus Chandigarh Administration-2001 HRR 254, a Division Bench of this Court reminded that resumption of site or building is a drastic measure. It has to be used sparingly. It also held that a landlord cannot be penalized for the act of erring tenant. To the same effect is the decision also in Capt. Gurmeet Singh Punia Versus Union Territory-2003 HRR 882. In an appropriate case, where the violation has resulted at the instance of another person and if there is abatement of misuse, there ought to be a scope for compounding the act of rectifying the misuse as held by the Division Bench in Shri Civil Writ Petition No.2569 of 2005(O&M) - 13 - B.N.Kataria Versus The Union Territory, Chandigarh and others-2002 HRR 240. In Dr. A.P. Sanwaria Versus Union of India-1996 PLJ 510, a Division Bench of this Court held, even while refusing to interfere with resumption when misuse had not ceased, “The threat of resumption acts as a check on the misuser of property. When it is found that the misuser was not by the owner but by a lessee, or that it was not intentional but for reasons beyond the control of the person concerned and that adequate had been made by the transferee to have the misuse stopped, the resumed site or building can be restored to the owner.” VI. The Administration is clearly in contempt of Court for flouting law well established 12. The act of the tenant in changing the user was indeed a violation of the terms of allotment but the landlord had no role in it. On the other hand, he had attempted to evict the tenant first on the ground of unauthorized change of user. He had also sought the assistance of the administration to evict the tenant complaining of such misuser. The administration acceded to the request, but deflected its own path by succumbing to political pressures for what it perceived to be exigent. When the tenant had ultimately vacated and the misuser was stopped and when an occasion presented itself for making aright the wrong, the administration did not position itself to the justice. It cited its own orders to deny to the petitioner what was just. When there are choices to be faced between alternative assessments of what is reasonable, Nobel Laureate Amartya Sen, would expound in his book 'The idea of Justice', several different and competing positions can well be defended. Far from rejecting such polarities or trying to reduce them beyond the limits Civil Writ Petition No.2569 of 2005(O&M) - 14 - of reasoning, we should make use of them to construct a theory of justice that can absorb divergent points of view. Here the justice involves in restoring to the petitioners namely, the petitioners their own property. The landlord has been kept out of his own property by an unrealistic act of sealing the premises. The Chandigarh Administration has, with impunity flouted the case law well established by several Division Bench decisions of this Court referred to above. Disobedience of law laid down by the Court shall also amount to contempt of Court. In Baradakanta Mishra, Ex-Commissioner of Endowments Versus Bhimsen Dixit-(1973) 1 SCC 446, the Hon'ble Supreme Court said, “just as the disobedience to a specific order of the Court undermines the authority and dignity of Court in a particular case, similarly the deliberate and mala fide conduct of not following the law laid down in the previous decision undermines the constitutional authority and respect of the High Court. Indeed,