CWP No.1440 of 2010.doc - 1 – HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** CWP No.1440 of 2010 Date of Decision: 27.09.2010 **** Surinder Singh . . . . Petitioner VS. Estate Officer UT Chandigarh & Ors. . . . . . Respondents **** CORAM : HON’BLE MR.JUSTICE SURYA KANT **** 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? **** Present: Mr. Tapas Sharma, Advocate for the petitioner Mr. TPS Chawla, Advocate for the respondents ***** SURYA KANT J. (ORAL) (1). The petitioner was allotted Bank Site No.6, Industrial Area, Phase-I, Chandigarh being the highest bidder in an open auction held on 19.12.1976 at a premium of `2,70,000/-. The petitioner defaulted in payment of the very first instalment which fell due on 19.12.1977. The Estate Officer, UT Chandigarh in exercise of the powers under Rule 20 of the Chandigarh Leasehold of Site and Building Rules, 1973 (in short, ‘the 1973 Rules’) cancelled the allotment CWP No.1440 of 2010.doc - 2 – and forfeited the amount already deposited by the petitioner. The petitioner went in appeal which was also dismissed. So was the fate of his revision petition which was dismissed by the Chief Commissioner, UT Chandigarh vide order dated 12.03.1980 with the following observations:- xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx “At the time of the hearing the petitioners are in arrears in respect of all the three instalments besides interest. The total outstanding dues, excluding the forfeiture of Rs.27,000/- ordered by the Estate Officer, amounts to 2,69,000. Obviously, therefore, they have been persistent defaulters. If the petitioners had been serious about clearing the outstanding dues, they could have tendered them before or on at the time of the hearing of the present revision petition. I do not think it is a fit case in which any leniency should be shown and further time allowed. The petition is dismissed. The reduction of forfeiture to Rs.20,000/- and recrediting of the forfeited ground rent to the account of the petitioners, as ordered by the Chief Administrator, are maintained. It is open to the petitioners to seek relief in terms of Rule 21-A of the Chandigarh Lease- Hold of Sites and Buildings Rules, 1973. To be communicated.” (Emphasis applied) CWP No.1440 of 2010.doc - 3 – xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx (2). As may be seen, the revisional authority though dismissed the revision petition but still granted liberty to the petitioner to seek relief under Rule 21-A of 1973 Rules. (3). The petitioner and his co-allottees unsuccessfully challenged the above-mentioned orders before this Court as well as before the Hon’ble Supreme Court. (4). The petitioner, after a long hibernation, moved an application on 12.09.2006 for the re-transfer of the site under Rule 21-B of the 1973 Rules which used to read as follows:- “[{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 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 re- transfer 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 retransfer is made, which ever is more.] CWP No.1440 of 2010.doc - 4 – Provided that such retransfer 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 conditions of sale, the breach has been remedied and conditions fulfilled. Notwithstanding any thing 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 retransfer 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 stipulated. Explanation:- For the purposes of this rule, the expression “site” does not include a vacate site. A vacant site is a site on which on the date of issue notice of cancellation of lease under rule 12 or 20 of the Chandigarh Lease Hold of Sites and Buildings Rules, 1973, no super structure had been raised and it includes a site on which foundations had been laid but no superstructure had been raised above that level. (2) The retransfer under sub-rule(1) shall be in continuation of and subject to all subsisting conditions but without prejudice to all the proceedings or liabilities or subsisting penalties levied in respect of such site before the date of the transfer. (3) The prevailing price shall be assessed by the Estate Officer or such other authority as may be prescribed by the Chief Administrator and in doing so the Estate Officer or such other authority shall give the applicant reasonable opportunity of being heard. The assessment made by the Estate Officer shall be final. (4) The applicant shall unless he refuses to accept the retransfer, deposit within 30 days 25% of the CWP No.1440 of 2010.doc - 5 – consideration of the retransfer. The remaining 75% of the said consideration shall be paid in three annual equated instalments along with interest at the rate of Rs.7% [sic] per annum. The first instalment shall become payable after one year from the date of retransfer. In case any instalment is not paid by the applicant by the due date it shall be deemed as if no retransfer had come into effect. (5) No application under sub-rule (1) shall be entertained unless it is presented within six months of the date of appeal/revision as the case may be: Provided that in the case of an order of cancellation of the lease passed earlier, the period of six months referred to above, shall begin to run from coming into force of this rule: Provided further that the Estate Officer may entertain an application after expiry of six months if he is satisfied that there was good and sufficient reason for not presenting the application within the said period of six months.” (5). Rule 21-B reproduced above has been concededly deleted/repealed by the Chandigarh Administration vide notification dated 31.01.2007 (Annexure R2) and is no longer in existence in the Statute Book. The petitioner’s application for re- transfer of the site was accordingly turned down vide the impugned order dated 07.06.2007 (Annexure P1) for the solitary reason that “Rule 21-A / 21-B for re-transfer of the sites has been repealed by the Administration.” CWP No.1440 of 2010.doc - 6 – (6). The petitioner went in appeal and revision this time also which have been turned down by the Appellate and Revisional Authorities respectively, giving rise to these proceedings. (7). The respondents have filed their reply/affidavit reiterating that the petitioner can take no advantage of the rule already repealed. (8). It is urged on behalf of the petitioner that the impugned order dated 07.06.2007 cannot sustain being violative of the principles of natural justice as no opportunity of hearing was afforded to the petitioner before rejecting his application for the re-transfer. It is also urged that the notification dated 31.01.2007 (Annexure R2) does not have retrospective effect and the petitioner’s claim for re-transfer of the site deserves to be determined on the basis of the Rules as they existed on 12.09.2006 when he had applied for re-transfer. In support of the above pleas, the petitioner relies upon the decision of the Hon’ble Supreme Court in P. Mahendran & Ors. v. State of Karnataka & Ors., AIR 1990 SC 405. (9). It is then alleged that the petitioner has been discriminated in the matter of re-transfer of the site in utter disregard of the Division Bench CWP No.1440 of 2010.doc - 7 – decision of this Court in Harbinder Singh Dhillon & Anr. v. UT Chandigarh & Ors., 2007 (4) PLR 639. Another Division Bench judgement in Jyoti & Anr. v. Chandigarh Administration & Ors. 2009 (1) PLR 701 is also relied upon to contend that Rule 21-B of the Rules cannot be applied retrospectively to a transaction which was complete. In all fairness, learned counsel for the petitioner has also referred to the decisions of this Court in (i) Harbans Singh v. UT Chandigarh, 1989(2) All India Land Laws Reporter Page- 577 (ii) Randhir Singh v. UT Chandigarh & Ors., 1997(2) PLJ 262; and (iii) Maya Devi & Anr. v. UT Chandigarh & Ors. 2001(1) PLJ 172. (10). The respondents, on the other hand, rely upon a decision of this Court in CWP No.2679 of 2009 which has been further upheld by a Division Bench in LPA No.277 of 2009 (Manjit Singh vs. Chandigarh Administration & Ors) decided on 17.08.2009. (11). Having heard learned counsel for the parties at some length and on perusal of the record, I do not find any merit in this writ petition and the CWP No.1440 of 2010.doc - 8 – impugned order(s) do not call for any interference by this Court. (12). I say so for the reason that while upholding the order(s) cancelling the petitioner’s lease, the Revisional Authority gave an opportunity to the petitioner(s) to seek relief in terms of Rule 21-A of the 1973 Rules. The petitioner took long 26 years in applying for the re-transfer of site. Unfortunately, before the petitioner’s application could be processed or even a semblance of right to seek re-transfer could accrue in his favour, Rule 21-B itself was deleted. In my considered view, the petitioner by merely applying for re-transfer on 12.09.2006 did not acquire any legally vested right to seek such re-transfer. As the very power to re-transfer the site at the current market value ceased to operate with the deletion of the subject Rule, no fault can be found with the impugned orders. (13). The Division Bench judgement in Harbinder Singh Dhillon’s case (supra) does not support the petitioner’s cause as in that case the petitioner (therein) could make out a clear case of discrimination. Moreover, the implications of CWP No.1440 of 2010.doc - 9 – deletion of Rule 21-B of the Rules was not an issue of consideration before the Bench. (14). In Randhir Singh’s case (supra), the allottee continued in possession for over 21 years even after cancellation of the lease and therefore, the delay in applying for re-transfer under Rule 21-B stood explained to the satisfaction of the Court. (15). The facts of the case in hand, however, would speak otherwise. The petitioner having lost the first battle for restoration of the site upto the Supreme Court, ought to have resorted to the alternative relief to seek re-transfer under Rule 21-A and 21-B of the Rules immediately or within some reasonable period. The petitioner(s) slept over the matter for years and did nothing except in allowing the grass to grow under their feet, even when the revisional authority in the year 1980 had permitted to seek relief in terms of Rule 21-A of the Rules. (16). For the reasons afore-stated, I do not find any merit in this writ petition which is accordingly dismissed. (17). Dasti . (SURYA KANT) JUDGE 27.09.2010 vishal shonkar CWP No.1440 of 2010.doc - 10 –