IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No. 13988 of 2007 DATE OF DECISION: November 17, 2008 Bhagwant Lal and others …Petitioners Versus State of Punjab and others …Respondents CORAM: HON’BLE MR. JUSTICE M.M. KUMAR HON’BLE MR. JUSTICE JORA SINGH Present: Mr. B.R. Mahajan, Advocate, for the petitioners. Mr. A.P.S. Mann, Advocate, for respondent Nos. 2 and 3. 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 & JORA SINGH, JJ. 1. This petition filed under Article 226 of the Constitution prays for quashing orders dated 10.4.2007 (P-9), 7.10.2004 (P-5/T) and 29.2.1984 (P-2) cancelling the allotment of House No. HE-89 (Ground Floor), Phase-V, Mohali. A further prayer has been made for restoration and regularization of the allotment of the aforesaid house in favour of the petitioners being the L.Rs of the original allottee (since deceased). C.W.P. No. 13988 of 2007 2. Brief facts of the case are that the mother of the petitioners, namely, Smt. Kanta Chaudhary, was allotted a built up House No. HE-89, Phase-V, Mohali by the Punjab Housing Development Board, Chandigarh (for short ‘PHDB’), now Greater Mohali Area Development Authority (for brevity, ‘GMADA’), vide allotment letter dated 30.9.1975 (P-1). The tentative cost of the house was Rs. 15,000/-. An amount of Rs. 1,400/- was deposited as earnest money and the allottee was to pay Rs. 2,750/- to make up 25% of the price of the house within 30 days of the issuance of allotment letter. The balance 75% of the cost of the house was payable through monthly installments of Rs. 105.50 (inclusive of interest) each in 20 years. 3. The allottee had paid monthly installments for about 8 years but due to a financial difficulty failed to deposit the monthly installments thereafter. Resultantly, the allotment of the house in question was cancelled by the PHDB, vide order dated 29.2.1984 because the allottee had not deposited Rs. 1,393/- on account of 16 monthly instalments upto 30.6.1983 and Rs. 1,660.50 on account of 18 installments up to 30.11.1983 (P-2). 4. It is apposite to mention here that the allotment of built up house in question was governed by the provisions of the Punjab Housing Development Board Act, 1972 (for brevity, ‘the Act’) and cancellation orders were also issued under the said Act. Since neither any Rules under the Act were framed nor was there any provision for filing an appeal in the Act, therefore, with a view to regulate the cases of cancellation, the PHDB in its meeting held on 31.1.1985 took a decision vide Resolution No. 72.06 that cancellation can be revoked 2 C.W.P. No. 13988 of 2007 on payment of all the dues with interest etc. and litigation charges of Rs.400/-. 5. Smt. Kanta Chaudhary, original allottee, expired on 21.11.1987 and in 1996-97 the petitioners being her L.Rs deposited a sum of Rs. 10,000/- in lumpsum towards the balance amount of installments with an undertaking to deposit the remaining amount if found due with interest or penalty for delayed payment. On 22.5.2003, an eviction notice under Section 46(1) of the Punjab Regional and Town Planning and Development Act, 1995 (for brevity, ‘the 1995 Act’), was issued by the Estate Officer-respondent No. 3 in the name of original allottee Smt. Kanta Chaudhary, requiring to show cause by appearing in person on 1.7.2003 as to why an eviction order be not passed (P-3/T). It is claimed that petitioner No. 1 appeared before the Estate Officer-respondent No. 3 and came to know that an appeal against the cancellation order was required to be filed before the Additional Chief Administrator, PUDA, Mohali, for restoration of the allotment. On 23.7.2003, an appeal under Section 45(5) of the 1995 Act was preferred before the Additional Chief Administrator, PUDA (P-4). The appeal was dismissed on 7.10.2004 on the ground that the petitioners failed to deposit the amount of Rs. 73,620/- which was due up to 31.10.2003. It was also noticed in the order dated 7.10.2004 that some unauthorized construction was also raised (P-5/T). On 27.10.2004, the petitioners deposited a sum of Rs. 50,000/- and filed a revision under Section 45 (8) of the 1995 Act before the Secretary to Government of Punjab, Department of Housing and Urban Development, Chandigarh- respondent No. 1 (P-7). In the revision petition the petitioners also 3 C.W.P. No. 13988 of 2007 undertook to deposit the entire remaining amount of Rs. 26,000/- within 2-3 months, which was actually deposited by them on 21.11.2006 and cleared the entire outstanding amount (P-8). However, the Revisional Authority-respondent No. 1 dismissed the revision petition, vide order dated 10.4.2007, by observing that despite giving sufficient time the petitioners failed to remove the unauthorized construction which shows that their bona fides are not clear (P-9). In the meanwhile, on 1.8.2006, the Estate Officer- respondent No. 3 exercising the powers under Section 46(1) the 1995 Act passed an order of eviction and directed to vacate the house within 30 days (P-10/T). 6. In the written statement filed on behalf of respondent Nos. 2 and 3 while admitting the factual position mentioned in the writ petition, the stand taken is that the impugned orders have rightly been passed because there was huge delay in depositing the due amount and un-authorised construction has been raised in the house in question. 7. After hearing learned counsel at a considerable length and perusing the paper book with their able assistance, we are of the considered view that this petition deserves to succeed. It is conceded position that the petitioners have already deposited the entire dues with the respondents. Learned counsel for the petitioners has very candidly stated that the petitioners are ready and willing to deposit the due amount, if any, which according to the respondents is still liable to be paid by them. The petitioners are also ready to remove the unauthorized construction, if any, within one month of pointing out the same by the respondents. Despite our specific query made to 4 C.W.P. No. 13988 of 2007 the learned counsel for the respondents that what type of unauthorized construction has been raised by the petitioners and as to whether any notice for removing the unauthorized construction was ever issued to them, no satisfactory answer has been given. Learned counsel has merely stated that since the allotment of the house in question was already cancelled vide order dated 29.2.1984, therefore, no notice for removing the unauthorized construction could have been issued. He, however, emphasised that unauthorized construction is still in existence. 8. It is settled law that allotment of a site, plot and house etc. has to be cancelled/resumed as a last resort. For that, facts and circumstances of each case has to be considered individually by the competent authority. In that regard reliance is placed on a Full Bench judgment of this Court in the case of Ram Puri v. Chief Commissioner, Chandigarh, AIR 1982 P.& H. 301, wherein the Full Bench came to the conclusion that although it does not violate fundamental rights of a citizen guaranteed under Article 19(1)(f) of the Constitution, however, the same has to be used as a measure of last resort (See paras 86 and 87 of the judgment). A similar issue has arisen before Hon’ble the Supreme Court in the case of Teri Oat Estates (P) Ltd. v. U.T. Chandigarh, (2004) 2 SCC 130. In that case also the view taken by the Full Bench of this Court in Ram Puri’s case (supra) has been approved. In para 57 it has been observed that the drastic step of resumption should be taken as a last resort. Hon’ble the Supreme Court also placed reliance on the principle of proportionality which have been applied to legislative 5 C.W.P. No. 13988 of 2007 and administrative action in India and went on to observe in para 49 as under:- 49. Ever since 1952, the principle of proportionality has been applied vigorously to legislative and administrative action in India. While dealing with the validity of legislation infringing fundamental freedoms enumerated in Article 19(1) of the Constitution of India, this Court had occasion to consider whether the restrictions imposed by legislation were disproportionate to the situation and were not the least restrictive of the choices. In cases where such legislation is made and the restrictions are reasonable; yet, if the statute concerned permitted administrative authorities to exercise power or discretion while imposing restrictions in individual situations, question frequently arises whether a wrong choice is made by the administrator for imposing the restriction or whether the administrator has not properly balanced the fundamental right and the need for the restriction or whether he has imposed the least of the restrictions or the reasonable quantum of restrictions etc. in such cases, the administrative action in our country has to be tested on the principle of proportionality, just as it is done in the case of main legislation. This, in fact, is being done by the courts. Administrative action in India affecting the Fundamental Freedoms has always been tested on the anvil of the proportionality in the last 50 years even though it has not been expressly stated that 6 C.W.P. No. 13988 of 2007 the principle that is applied in the proportionality principle. [See Om Kumar v Union of India (2001) 2 SCC 386)].” 9. As a sequel to the above discussion, this petition is allowed. The impugned orders dated 10.4.2007 (P-9), 7.10.2004 (P-5/T) and 29.2.1984 (P-2) as well as eviction order dated 1.8.2006 (P-10/T) are set aside. Consequently House No. HE-89, Phase-V, Mohali, is restored back to the petitioners. The restoration of the site to the petitioners has been ordered on the specific undertaking given by them through their counsel to the Court to demolish any un- authorised construction as also to deposit the outstanding amount, if any, found due to the respondents, which shall be paid by the petitioners. Accordingly, the writ petition is disposed of on the basis of undertaking, subject to the following directions:- a) Within one month from the date of receipt of a copy of this order the respondents shall undertake an inspection of House No. HE-89, Phase V, Mohali and if any building violations are found, then issue them a show cause notice for removal of such violations, which should also include the arrear if any payable by the petitioners; and b) Within a period of one month of the receipt of the show cause notice the petitioners shall remove all the building violations and make payment of all dues failing which resumption order shall stand revived. 10. The writ petition stands disposed of in the above terms. (M.M. KUMAR) JUDGE (JORA SINGH) November 17, 2008 JUDGE Pkapoor 7