IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No. 7003 of 2007 DATE OF DECISION: November 28, 2008 Jagjit Singh and others …Petitioners Versus Chandigarh Administration and others …Respondents CORAM: HON’BLE MR. JUSTICE M.M. KUMAR HON’BLE MR. JUSTICE JORA SINGH Present: Mr. Ashok Aggarwal, Senior Advocate, with Mr. Mukul Aggarwal, Advocate, for the petitioners. Mr. K.K. Gupta, Additional Standing Counsel, Chandigarh Administration, for the respondents. 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? M.M. KUMAR, J. 1. The instant petition filed under Article 226 of the Constitution prays for quashing orders dated 17.12.1997 (P-4), 30.9.2002 (P-5), 6.4.2004 (P-8), 30.8.2004 (P-9) and 28.3.2007 (P- 19) passed by the respondents in respect of S.C.O. No. 26-27, Sector C.W.P. No. 7003 of 2007 9, Chandigarh. A further prayer has been made for directing the Assistant Estate Officer-respondent No. 3 to sanction revised building plans submitted by the petitioners. 2. The undisputed and conceded facts of the case are that as a result of an open auction held on 25.3.1991, held by the Chandigarh Administration S.C.O. Site No. 26-27, Madhya Marg, Sector 9, Chandigarh, was allotted to the petitioners or their predecessor-in- interest (total 17 in all) on 99 years lease hold basis, for a premium of Rs. 57,10,000/- with Rs. 1,42,750/- as yearly ground rent/lease money. On 4.5.1991, a letter of allotment in this regard was issued (P-3). 25% premium of the site i.e. Rs. 14,27,500/- paid by the petitioners was adjusted against the premium payable in respect of the lease. The balance 75% was to be paid in three equated instalments of Rs. 17,22,036/- with 7% interest per annum. The first instalment was payable at the expiry of one year from the date of auction. In case of delay of payment of instalment of premium and ground rent, interest @ 15% per annum was chargeable from the due date till the date of actual payment. Option of lump-sum payment of 75% balance of the premium within 30 days of the date of auction was also available. As per schedule given in the allotment letter, the instalments were due on 25.3.1992, 25.3.1993 and 25.3.1994, which could be paid upto 10.4.1992, 10.4.1993 and 10.4.1994. 3. As per clause 3 of the allotment letter, the lease was to be governed by the provisions of the Capital of Punjab (Development and Regulation) Act, 1952 (for brevity, ‘the Act’) and the rules made 2 C.W.P. No. 7003 of 2007 thereunder. As per clause 15 no fragmentation or amalgamation of the site was permissible and clause 16 further stipulated that the site and the building constructed thereon was to be used for the purpose of ‘General Trade’ only for which it was leased. As per clause 17, in the event of default, breach or non-compliance of any of the conditions of the lease, the lease of the site/building was liable to be cancelled and the whole/part amount paid to the Government towards the premium/rent of the site could have been forfeited to the Government after cancellation of lease. As per Clause 21, the building on the site was to be completed within three years from the date of auction and in accordance with the provisions of the Punjab Capital (Development and Regulation) Rules, 1952. 4. On 24.5.1996, a show cause notice under Rule 20 of the Chandigarh Lease Hold of Sites and Building Rules, 1973 was issued for removal of unauthorised construction/structure raised at the site. Thereafter, opportunities of hearing were also given on 6.6.1996, 18.7.1996, 29.8.1996, 17.10.1996, 20.2.1997, 10.4.1997 and 19.6.1997. Ultimately, on 19.6.1997, the lease of the site was cancelled by the Estate Officer-respondent No. 3 on account of following building violations:- “1. Basement has been partitioned for Restaurants and booths (Nine Numbers) for different trades against the Architectural Control Sheet/Sanctioned plan. 3 C.W.P. No. 7003 of 2007 2. Ground floor has been partitioned into two shaps (shops?) against the sanctioned plan/architectural Central Sheet. 3. Conditional sewerage connection for 3 months was issued on the basis of affidavit submitted to (on?) 6.4.92 but said violations/condition still existing. 4. Elevation are been changed which is against the Architectural Central/Sanctioned Plan.” It has been noticed by the Estate Officer-respondent No. 3 that notices were served and 7 opportunities of hearing were given to the allottees-petitioners but they were not able to remove two violations from the building despite lapse of 1½ year. While passing the cancellation order, the Estate Officer also ordered forfeiture of 18% consideration money i.e. Rs. 5,71,000/- plus interest and ground rent paid upto the date of cancellation (P-5). 5. The petitioners preferred an appeal bearing No. 12 of 1998 before the Commissioner, Municipal Corporation, Chandigarh, who was exercising the powers of the Chief Administrator, U.T. Chandigarh. The petitioners gave an undertaking that they would make an attempt to get the violations compounded by submitting revised plans and in the event of non-compounding of the violations, they would set right the same. During the pendency of appeal, a fresh inspection report dated 10.7.2002, was also supplied depicting five violations, status of violations and the remedial measures. 4 C.W.P. No. 7003 of 2007 Considering the assurance given by the petitioners, the Appellate Authority, vide his order dated 10.7.2002, set aside cancellation order dated 19.6.1997 and directed the petitioners to set right all the violations by 31.12.2002 either by getting the same compounded by submitting and sanctioning the revised plans or otherwise. The amount of forfeiture was also ordered to be paid by 31.12.2002. The petitioners were further directed to inform the Assistant Estate Officer on or before 15.1.2003 regarding setting right of the violations, who was to carry out spot inspection to see whether all the violations have been removed or not (P-5). 6. It is claimed by the petitioners that the major violations were existing in the portion of the building which was in the possession of their tenants and violations, in fact, were done by the tenants, who were not permitting them to remove the same. The petitioners also sent a notice to their tenants for vacation of the premises on 12.7.2003 (P-6). However, the premises was not vacated and the petitioners were not able to set right the violations within the time granted by the Appellate Authority i.e. upto 31.12.2002. Accordingly, the petitioners filed a revision petition No. 126 of 2003 before the Adviser to the Administrator-respondent No. 1 (P-7). The Revisional Authority further granted two months time to the petitioners for removing of the violations, vide order dated 31.3.2004 (P-8). 7. Still the petitioners were not able to remove the violations due to non-cooperation of their tenants. Accordingly, the 5 C.W.P. No. 7003 of 2007 petitioners filed an application for extension of time limit, which was dismissed by the Revisional Authority-respondent No. 1, vide order dated 25.8.2004, on the ground that passing of any order would amount to review of its earlier order dated 31.3.2004, which is not permissible under the Act (P-9). 8. On 23.11.2004, the Estate Officer-respondent No. 4 passed an order under Section 5 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (for brevity, ‘the 1971 Act’), for eviction of the petitioners and all other occupants from the site in question (P-10). The aforementioned order was challenged by the petitioners before the learned District Judge, Chandigarh, by filing an appeal under Section 9 of the 1971 Act on the ground that the same was passed without issuing any show cause notice to all the co- owners. The learned District Judge remanded back the matter to the Estate Officer for passing fresh orders after affording an opportunity of hearing to all the co-owners (P-11). 9. In the meanwhile, the petitioners also instituted civil suits against their tenants and also sought permanent injunction allowing them to demolish the non-sanctionable building violations existing in the portion of the building which was in the possession of the tenants (P-12 & P-13). Ultimately, after protracted litigation, the tenants of the petitioners agreed to handover possession of the site in question and made statements to that effect in the civil court on 31.1.2007 (P-16 & P-17). Only thereafter the petitioners were able to get back the possession of the site 6 C.W.P. No. 7003 of 2007 10. Soon thereafter the petitioners removed all the non- sanctionable building violations and submitted revised building plans to the Estate Officer-respondent No. 3. They also filed an application before respondent No. 1 for recalling of order dated 31.3.2004 (P-8), passed in Revision Petition No. 126 of 2003 as well as order dated 25.8.2004 (P-9) passed in Review Application No. 60 of 2004 in light of the fact that they have removed the violations (P-18). The Revisional Authority, however, dismissed the application vide order dated 28.3.2007 on the same ground that it does not have the power to recall its earlier orders (P-19). 11. During the pendency of the instant petition, when the matter came up for hearing on 26.8.2008, learned counsel for the respondents handed over a letter dated 21.8.2008 to the learned counsel for the petitioners wherein certain discrepancies were pointed out with regard to the revised building plans submitted by the petitioners. While adjourning the case for 15.9.2008, the petitioners were directed to take steps for compliance of the letter within a week and to submit revised building plan which were to be processed and disposed of by passing appropriate order within another one week. 12. On 15.9.2008, a copy of the order dated 12.9.2008, passed by the Assistant Estate Officer-cum-Vice Chairman, Plan Approval Committee, U.T. Chandigarh was placed on record, which has been passed in pursuance to the directions of this Court dated 26.8.2008. It has been observed in the said order that the revised building plan was not submitted under the signatures of all the 7 C.W.P. No. 7003 of 2007 owners or their authorised agent or attorney. It has further been pointed out that a sum of Rs. 21,12,833/- out of Rs. 27,12,833/- was deposited on 12.9.2008 whereas remaining amount of Rs. 6,00,000/- was still required to be deposited before release of the building plan. Another sum of Rs. 27,076/- was outstanding on account of compounding of violations applied in the revised building plan. The Assistant Estate Officer was also of the opinion that the revised building plan could not be issued because the site in question has already been cancelled/resumed vide order dated 19.6.1997 which has been upheld by the Appellate Authority and Revisional Authority. Learned counsel for the petitioners submitted that a sum of Rs. 6,00,000/- was deposited on 15.9.2008 itself and amount of Rs. 27,076/- towards compounding charges was to be deposited by 16.9.2008. Learned counsel also stated that other necessary formalities would be completed within a week. Thereafter the matter again came up for consideration on 29.9.2008 and as per consensus of the parties it was directed that the legal heirs of three deceased owners would remain present in the chamber of Mr. K.K. Gupta, learned counsel for the respondents on 6.10.2008 at 11.00 a.m. for compliance of order dated 26.8.2008, who has stated at the hearing that all building violations stand removed and all payments have been made. 13. Having heard learned counsel for the parties at a considerable length we are of the view that this petition deserve to succeed. It has come on record that the petitioners have deposited the 8 C.W.P. No. 7003 of 2007 whole amount demanded by the respondents. It is also conceded position that by now all the violations have been removed by the petitioners. In other words, the ground of cancellation/resumption of the site given in the impugned order dated 19.6.1997 (P-4), passed by the Estate Manager does not exist any more because the petitioners have been able to remove building violations from the site in question. 14. It has been repeatedly held by the Courts that the power of resumption/cancellation of plots, houses and commercial sites etc. should be exercised only as a last resort. A Full Bench of this Court in the case of Ram Puri v. Chief Commissioner, Chandigarh, AIR 1981 P&H 301, has categorically laid down that the power of resumption is ultimate civil sanction and must, therefore, be used as a weapon of last resort. Inevitably it should be used with great caution and circumspection because in a sense the individualistic property rights have to give way to larger public purpose of planned and regulated urbanisation (See paras 86 & 87 of the judgment). 15. The view taken by the Full Bench of this Court in Ram Puri’s case (supra) has been approved by Hon’ble the Supreme Court in the case of Teri Oat Estates (P) Ltd. v. U.T. Chandigarh, (2004) 2 SCC 130. Hon’ble the Supreme Court discussed the doctrine of proportionality in its historical perspective (paras 40 to 53) and referred to various facets of the aforementioned doctrine. It has been held that the Court has to see that the legislature and the administrative authority maintain a proper balance between the 9 C.W.P. No. 7003 of 2007 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. It also been concluded that every case has to be examined on its own facts. 16. Applying the principles of proportionality to the facts of the present case, we are of the view that depriving the petitioners of their entitlement of long lease of 99 years in respect of the site in question would be disproportionate to the object of planned development postulated by the allotment letter, especially when the petitioners have been able to remove the building violations. From the peculiar facts and circumstances narrated above it is clear that efforts were made by the petitioners to remove the building violations but it took some time due to litigation with the tenants. 17. For the reasons aforementioned this petition succeeds and the impugned orders 17.12.1997 (P-4), 30.9.2002 (P-5), 6.4.2004 (P-8), 30.8.2004 (P-9) and 28.3.2007 (P-19) are hereby quashed. The petitioners would also be entitled for reimbursement of the forfeiture amount. 18. The writ petition stands disposed of in the above terms. (M.M. KUMAR) JUDGE (JORA SINGH) November 28, 2008 JUDGE 10 C.W.P. No. 7003 of 2007 Pkapoor 11