Full Judgment Text
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CASE NO.:
Appeal (civil) 2577 of 2004
PETITIONER:
Jyotsna Kohli
RESPONDENT:
Union Territory of Chandigarh & Ors.
DATE OF JUDGMENT: 20/04/2004
BENCH:
S. Rajendra Babu & P. Venkatarama Reddi.
JUDGMENT:
J U D G M E N T
[Arising out of SLP (C) No. 19095 of 2001]
P. Venkatarama Reddi, J.
Leave granted.
The appellant’s father was allotted a plot measuring
763 sq. yards in Sector 7-C, Chandigarh by the Chandigarh
Administration by means of an auction sale and a deed of
conveyance was executed on 13.10.1970. Subsequently,
the site was transferred in favour of the appellant.
A showroom was constructed on the site and in the year
1974, the building was let out to Allahabad Bank. Though it
is claimed that the Estate Officer, U.T., Chandigarh gave
consent for such letting, no material has been placed before
the Court in support of this version.
In view of the infringement of the conditions of sale
read with the Rules, namely, Chandigarh (Sale of Sites and
Buildings) Rules, 1960, the Estate Officer by an order dated
25.11.1980 resumed the site on the ground of misuser and
also forfeited 10% of the cost of site. This was done after
issuing show-cause notice and opportunity of hearing to the
appellant. The power of resumption is conferred by Section
8-A of Capital of Punjab (Development and Regulation)
Act, 1952.
It appears that the appellant filed an injunction suit in
the year 1982 against the Bank to restrain it from using the
premises, but the same was dismissed on the ground that
the appellant had no locus standi. The Estate Officer
initiated eviction proceedings against the Bank and passed
an order of eviction on 7.11.1984. The appeal and revision
filed by the Bank failed. However, the revisional authority
by an order dated 14.6.1989 granted two years time to the
Bank to stop the misuser. It is the case of the appellant that
even thereafter the Bank did not vacate, and therefore, he
filed a writ petition in the High Court to direct vacation of the
premises by the Bank. The writ petition was disposed of on
the basis of the undertaking given by the Bank to vacate the
premises on 31st December 1991. The Estate Officer took
possession on 18.12.1991 and sealed the building. The
appellant then filed CWP No. 11596 of 1993 in the High
Court of Punjab & Haryana praying for quashing the order of
resumption and for restoration of showroom. While
dismissing the writ petition, the High Court observed that if
the appellant makes an application under Rule 11-D of the
Rules of 1960, such an application would be decided by the
appropriate authority within a month. Against this order of
the High Court, the appellant filed SLP (C) No. 23499 of
1994 which was dismissed as withdrawn by an order dated
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8.11.1995 subject to the observations made therein. The
following is the text of the order of this Court :-
"Mr. G.L. Sanghi, learned counsel appearing for
the petitioner, states that the petitioner will file an
application in accordance with Rule 11(d) of the
Chandigarh (Sale of Sites and Buildings) Rules,
1960 within a period of eight weeks from today
and therein raises all the points agitated in the
present special leave petition. With the above
statement, Mr. Sanghi seeks permission to
withdraw this Petition. The prayer is allowed.
In case any such application is filed within
the period stipulated above, the concerned
authority will dispose of the same in accordance
with law within two months from the date of its
receipt. Needless to say, if any order adverse to
the petitioner is passed on that application, the
petitioner will be at liberty to assail the same in
the appropriate forum."
At this stage, a reference to Rule 11-D may be made :-
Rule 11-D :
(1) Where a site has been resumed under
Section 8-A of Act No. XXVII of 1952 for any
reasons, the Estate Officer may, on an
application, re-transfer the site to the
outgoing transferee, on payment of an
amount equal to 10 percent 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 transfer is made,
whichever is more.
xx xx xx
Provided that such transfer shall be
permissible only if \026\026
(i) where the site has been resumed on
ground of misuser, the misuser has
stopped;
(ii) where the site has been resumed for
non-payment of price, all outstanding
dues including forfeiture have been
paid;
(iii) where the site has been resumed for
breach of any conditions of sale, the
breach has been remedied and
conditions fulfilled.
Notwithstanding anything contained in
the proviso above, when the site has been
resumed 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 stipulate.
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Explanation : x x x x x
(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 property
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."
It is clear from the perusal of Rule 11-D that on
fulfillment of the clauses in the proviso, the Estate Officer is
empowered to re-transfer the site on payment of the
amount specified therein. Rule 11-D does not contemplate
any dispute being raised as to the legality or propriety of the
resumption order. The points raised in this special leave
petition, turning on the merits of the case, could not have
been raised in an application under Rule 11-D. However, a
representation was made that all the points agitated in the
special leave petition will be raised before the Estate Officer
in Rule 11-D application. This Court did not grant any
liberty to do so, but merely recorded the representation
made by the learned counsel on behalf of the appellant. The
Court merely directed the concerned authority to dispose of
the application in accordance with law.
In the 11-D application filed by the appellant before the
Estate Officer, the correctness of the resumption order itself
was questioned. Apart from contending that there was no
misuse in the real sense of the term, the appellant quoted
certain instances in which the resumption orders were set
aside and the sites restored to the allottees by the appellate
or revisional authorities. The Estate Officer rightly observed
that it is not open to him to go behind the resumption order
which had become final. The cases cited by the appellant
were distinguished on facts. The Estate Officer, however,
allowed the application under Rule 11-D subject to the
payment of the amount as per the Rule. The Estate Officer
passed this order on 27.2.1996. The appeal to the Chief
Administrator was rejected on 8.9.1998. The appellate
authority reaffirmed the view of the Estate Officer. The
revision petition filed before the Chief Administrator was
dismissed as not maintainable. In fact, no appeal or revision
is provided under the Rules against the order passed under
Rule 11-D. The appellant then filed Writ Petition No. 10342
of 2001 which was dismissed by the High Court by the
impugned order dated 19.7.2001. The Division Bench of the
High Court observed :-
"..........A reading of this rule makes it clear that
the offer of retransfer can be made only after the
order of resumption has become final. The
petitioner is now seeking to challenge the order of
resumption, which we are afraid, cannot be
allowed in these proceedings. In pursuance of the
observations made by the Apex Court, the
Chandigarh Administration made an offer to the
petitioner to have the property transferred in her
name subject to the payment determined. The
offer is fair and reasonable in the circumstances of
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the case and we find no ground to interfere."
It is against the said order this SLP is filed. It is firstly
contended by the learned counsel for the appellant that this
Court, while dismissing the earlier SLP, must be deemed to
have granted liberty to seek cancellation of resumption
order and that in any event the appellant should not be
prejudiced on account of the representation made by the
counsel under the bona fide impression that the resumption
order could be revoked even at that stage. This contention
has no force whatsoever, viewed in the light of the order of
this Court as well as the scope and ambit of Rule 11-D.
In any case, this contention need not detain us further in
view of the fact that the main contention urged by the
appellant was negatived on merits also. The Estate Officer
as well as the Chief Administrator found that the instances
referred to by the appellant are not comparable, but they
are distinguishable on facts and, therefore, the same
treatment cannot be accorded to the appellant.
The learned counsel for the appellant has sought to rely
upon some more recent instances in which the resumption
order was set aside, in a bid to persuade us to direct
de novo consideration. It is not possible for us to embark on
an enquiry into the relevance of the orders in the alleged
comparable cases. Moreover, it will not be legal and proper
to reopen the issue of resumption which had become final
long back. The propriety or otherwise of the order passed
by the Estate Officer can only be examined from the stand
point of Rule 11-D. So also, the question whether the
procedure under the provisions of Public Premises Act was
duly followed, cannot be gone into in this appeal at this
stage. Broadly speaking, we find no legal infirmity in the
order passed by the Estate Officer.
It is then contended by the learned counsel for the
appellant that the misuser pertained only to a part of the
premises and therefore it is not fair and reasonable to call
upon the appellant to deposit the value of the entire site.
As rightly pointed out by the learned counsel for the
respondents, this plea was not raised in the earlier
proceedings. Even in the SLP, it is not raised in specific
terms though there is an averment in the synopsis of dates
and events (vide pages ’B’ and ’E’) that most of the
premises has been used for authorized purpose but what
was let out to the Bank in the year 1974 was only the front
portion of the building. We consider it just and proper to
direct the Estate Officer to examine whether this assertion is
factually correct and if so, whether any proportionate relief
can be granted or not on this basis. It is open to the
appellant to furnish the necessary details with supporting
evidence if any to substantiate her version in this behalf.
The other question that remains to be considered is
the date which ought to be taken into account for the
purpose of computing the value in terms of Rule 11-D.
Going by the strict terms of Rule 11-D, the value has to be
assessed with reference to the date on which the application
was made. In this case, the application was made soon
after the SLP was dismissed on 8.11.1995. Hence, according
to the strict interpretation of the rule, the value prevailing in
1996 should in the normal course be taken into account.
However, we are of the view that in the peculiar
circumstances, the rigour of the Rule has to be relaxed and
some relief has to be granted to the appellant. The fact
remains that the misuser of premises came to an end with
the Bank vacating it towards the end of 1991. The appellant
herself took some active steps to evict the Bank with a view
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to put an end to the misuser. But, the various proceedings
consumed lot of time. The revisional authority granted two
years time to the Bank to vacate while dismissing the
revision. After the Bank had vacated and the appellant
made sure that the misuser ended, it questioned the
resumption order in High Court by filing a writ petition in
1993. The High Court dismissed the writ petition with an
observation that the petitioner may make an application
under Rule 11-D. Thereafter, the SLP was filed in this Court
which was dismissed subject to the direction that the
application if filed will be disposed of according to law.
We have no doubt that the appellant was bona fide pursuing
litigation. She did not file the application earlier for the
various reasons mentioned above.
In the circumstances, the ends of justice will be met by
directing the respondent \026 Estate Officer to treat the
application under Rule 11-D as having been filed in the year
1992 and assess the value on that basis. This is without
prejudice to any relief that may be granted to the appellant
in terms of the direction supra to examine the question of
granting proportionate relief while fixing the value.
The appellant shall deposit the amount fixed in the light
of the above directions on the receipt of the communication
working out the figures. The amount shall be paid within
the time and in the manner laid down in sub-rule (4) of Rule
11-D. In case of default in payment, it is open to the Estate
Officer to reject the application. On payment of the full
amount determined, it is open to the appellant to apply for
change of user, if it is permitted under the Rules and Orders
in force.
The appeal is disposed of accordingly without costs.