IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No. 11826 of 2007 DATE OF DECISION: December 18, 2008 Ms. Jyoti and another …Petitioners Versus Chandigarh Administration and others …Respondents CORAM: HON’BLE MR. JUSTICE M.M. KUMAR HON’BLE MR. JUSTICE JORA SINGH Present: Mr. Gopal Mahajan, Advocate, for the petitioners. Ms. Jaishree Thakur, 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 M.M. KUMAR, J. The petitioners have approached this Court with a prayer for quashing order dated 25.5.2007 (P-13) passed by the Estate Officer, Union Territory, Chandigarh-respondent No. 3. A further direction has been sought to respondent No. 3 to accept the re-transfer amount as per order dated 22.2.2006 (P-7) passed by the Adviser to C.W.P. No. 11826 of 2007 the Administrator-respondent No. 1 for re-transfer of Booth No. 168, Sector 24-D, Chandigarh, in favour of the petitioners. 2. Brief facts of the case which has led to the filing of the instant petition are that the petitioners lost their parents in a road accident on 16.6.2000. The mother of the petitioners was allotted Booth No. 168, Sector 24-D, Chandigarh, on 12.2.1988 on lease hold basis in an open auction on a premium of Rs. 2,30,000/-. On account of non-payment of instalments, the lease of the booth site was cancelled by the Estate Officer vide order dated 24.6.1992, which was challenged before the Appellate Authority, who restored the booth site subject to payment of entire amount by 31.3.1995, vide order dated 21.2.1995. It is claimed that order dated 31.3.1995 was never conveyed as a result the amount could not be deposited within the stipulated period. The revision petition filed by the petitioners’ mother was dismissed vide order dated 7.7.1999. 3. The order dated 7.7.1999 dismissing the revision petition, was challenged in this Court by the mother of the petitioners by filing C.W.P. No. 10702 of 1999. While staying order dated 7.7.1999, this Court directed the mother of the petitioners to deposit a sum of Rs. 2,30,000/- within one month, which was deposited vide Demand Draft No. 054291, dated 17.8.1999. After the death of the parents of the petitioners, the aforementioned writ petition was disposed of as the same stood abated, with liberty to the successor in interest to file a fresh petition on the same cause of action, vide order dated 22.1.2001 (P-2). 2 C.W.P. No. 11826 of 2007 4. The petitioners then filed CWP No. 8527 of 2001, which was dismissed as withdrawn with liberty to approach the concerned authorities, vide order dated 10.4.2002 (P-3). On 8.7.2002, the petitioners filed an application before the Estate Officer-respondent No. 3 for re-transfer of the site in question on payment of outstanding amount (P-4). On 24.10.2002, the petitioners were asked to deposit a sum of Rs. 2,94,091/- upto 15.11.2002. The petitioners have claimed that after borrowing money from relatives they deposited Rs. 1,10,000/- and Rs. 1,84,021/- through two separate pay orders, well before 15.11.2002. On 8.1.2003, the Estate Officer-respondent No. 3 while hearing the application for restoration/retransfer, passed an order assessing the retransfer fee of Booth No. 168, Sector 24, Chandigarh, as Rs. 2,94,021/- (P-5). 5. The petitioners feeling aggrieved against the demand of Rs. 2,94,021/- as retransfer fee, assailed order dated 8.1.2003 in this Court by filing CWP No. 12141 of 2003, which was disposed of on 5.10.2005 (P-6) in terms of order passed in a bunch of petitions including C.W.P. NO. 9987 of 2004 (Ram Kumar Jain and others v. Chandigarh Administration and others). The Division Bench recorded the finding that the petitioners were in occupation of plots/sites for a long time and on that basis adverse orders were set aside and a direction was issued to the Adviser to reconsider the matter. Accordingly, the Adviser in his order dated 22.2.2006 (P-7) heard the petitioners and recorded their undertaking that they would clear all the dues by 31.12.2006. A direction was also issued to the 3 C.W.P. No. 11826 of 2007 Estate Officer to accept the re-transfer amount and thereafter pass appropriate orders under law. 6. On 26.7.2006, the petitioners were required to deposit Rs. 4,56,471/- towards re-transfer fee and Rs. 30,868/- towards ground rent. The petitioners deposited a sum of Rs. 2,43,148/- on 16.11.2006 (P-8 & P-9). On 6.12.2006, the petitioners were again asked to deposit a sum of Rs. 2,53,191/- before 31.12.2006 (P-10), which were deposited by them on 26.12.2006 (P-11). In this manner, the order dated 22.2.2006 (P-7) passed by the Adviser to deposit all the dues by 31.12.2006 was complied with by the petitioners on 26.12.2006. However, when the petitioners filed an application for re-transfer of the booth site in question, the Estate Officer-respondent No. 3 rejected the same on 25.5.2007 (P-13) by citing the reason that after 31.1.2007, the power of re-transfer has been taken away by deleting the provision of Rule 21-B of the Chandigarh (Leasehold of Sites and Buildings) Rules, 1973 (for brevity, ‘the Rules’). On receipt of the aforementioned order, the petitioners again made a representation for re-calling of order dated 25.5.2007 (P-14). However, the Estate Officer-respondent No. 3 has returned back a sum of Rs. 5,31,339/- to the petitioner, vide letter dated 13.7.2007 (P-16), whereupon the petitioners have again approached this Court by filing instant petition. 7. On 3.8.2007, while issuing notice of motion, interim direction staying dispossession of the petitioners were also issued, 4 C.W.P. No. 11826 of 2007 which have been continuing till date. The petitioners again deposited a sum of Rs. 5,31,339/- with the respondents on 5.8.2007. 8. The broad factual position has not been denied in the written statement filed by the Estate Officer-respondent No. 3. However, the only legal issue raised is that after the amendment dated 31.1.2007, the Estate Officer is not clothed with the power of re- transfer as Rule 21-B of the Rules stands deleted. 9. We have heard learned counsel for the parties at some length and are of the view that the instant petition deserves to be allowed. Rule 21-B of the Rules before incorporation of amendment made on 31.1.2007 stood as under:- “Rule 21-B. 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, retransfer 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 retransfer is made which ever 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 5 C.W.P. No. 11826 of 2007 originally payable and its value at the time when application for retransfer is made, which ever is more.” 10. A perusal of the aforementioned Rule shows that in case lease of any site is cancelled by invoking Rule 12 or 20 of the Rules for any reason, the Estate Officer on an application could retransfer the site to the outgoing transferee on payment of specified amount. It is not disputed that Rule 21-B of the Rules remained in operation till its amendment on 31.1.2007. The condition precedent for re-transfer of the property to the petitioners were fulfilled by them by depositing the requisite amount on 16.11.2006 and 26.12.2006 (P-8 and P-11) in pursuance to order dated 22.2.2006 (P-7). Once the amount has been deposited by the petitioners within the period specified in the order of the Adviser, dated 22.2.2006 (P-7) then there was no possibility of applying the amendment made on 31.1.2007 to the aforementioned transaction. The legal and proper course was to re-transfer property in question in favour of the petitioners. Therefore, we are of the view that order passed by the Estate Officer-respondent No. 3 on 25.5.2007 (P-13) is not sustainable in the eyes of law. The amendment in the Rules, made on 31.1.2007, cannot be applied retrospectively to a transaction which was complete on 26.12.2006 to deprive the petitioners of their legitimate rights which have accrued in their favour by virtue of order dated 22.2.2006 (P-6) subject to compliance of certain conditions. Those conditions were complied with by the petitioners on 16.11.2006 and 26.12.2006, which is within the period 6 C.W.P. No. 11826 of 2007 stipulated in the order of the Adviser. Therefore, impugned order dated 25.5.2007 (P-13) is liable to be quashed. 11. As a sequel to the above discussion, impugned order dated 25.5.2007 (P-13) is quashed. A direction is issued to the Estate Officer-respondent No. 3 to re-transfer Booth No. 168, Sector 24, Chandigarh, in the names of the petitioners and complete all other formalities in this regard. The needful shall be done within a period of two months from the date of receipt of a certified copy of this order. 12. The writ petition stands disposed of in the above terms. (M.M. KUMAR) JUDGE (JORA SINGH) December 18, 2008 JUDGE Pkapoor 7