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IN THE HIGH COURT OF PUNJAB AND HARYANA
[FULL BENCH]
Before
The Hon’ble Mr. Justice Surya Kant
The Hon’ble Mr. Justice Augustine George Masih
The Hon’ble Mr. Justice R.P. Nagrath
CWP No.16634 of 2008 (O&M)
Dheera Singh
v.
UT Chandigarh Admn. & Ors.
{Decided on 08/11/2012}
(i) Rule 11-D of the 1960 Rules lent no support nor did it help Section 8-A to survive on being challenged as violative of Articles 14, 19(1)(f) read with Article 31 of the Constitution before the Full Bench of this Court in Ram Puri’s case or before Hon’ble Supreme Court in Babu Singh Bain’s case; (ii) The Hon’ble Supreme Court upheld Section 8-A in Babu Singh Bains, approving the majority view in Ram Puri besides giving its own reasons in support of its findings;
(iii) There was no occasion for the Hon’ble Supreme Court to rely upon Rule 11-to dilute the strictness of resumption under Section 8-A when it questioned the very justification or propriety behind existence of that Rule; (iv) To say it differently, we hold that Rule 11-D was not the pillar of strength for sustenance of Section 8-A either before the Full Bench of this Court in Ram Puri or the Hon’ble Supreme Court in Babu Singh Bain’s case--In fact, this Court in Ram Puri referred to Rule 11-D as a positive event of fact but the said Rule invited criticism and was disapproved by the Supreme Court in Babu Singh Bain’s case;
(v) The Supreme Court judgements in (i) M/s. Johnson Paints and Varnish Co.; (ii) Babu Singh Bains; and (iii) M/s. Teri Oat Estates Pvt. Ltd. cases are neither obiter dicta nor sub silentio and are binding precedents within the meaning of Article 141 of the Constitution;
(vi) Section 8-A of the 1952 Act does not violate Articles 14, 19(1)(f), 31 & 300-A of the Constitution of India;
(vii) Rule 11-D was illegal from the very inception and it conferred no right enforceable through court of law to seek re-transfer of a resumed site or building--We, however, clarify that the declaration on the legality of Rule 11-D shall have no retrospective effect and the cases already settled thereunder while it was operative, shall not be re-opened;
(viii) The petitioners or other similarly-placed allottees-indefault have got no legally-vested right to seek retransfer of the resumed sites only on the ground that they applied for such re-transfer before deletion of Rule 11-D on 31.01.2007;
(ix) The 1952 Act has become neither obsolete nor redundant and it shall continue to operate until repealed expressly or by implication by the competent Legislature;
(x) The petitioners while challenging the orders rejecting their applications for re-transfer of the resumed sites cannot be permitted to re-visit their challenge to the orders of resumption of their respective sites or buildings which have already attained finality, irrespective of the new grounds now taken by them.
(B) Capital of Punjab (Development & Regulation Act, 1852, S.8-A--Resumption of building--Breach of condition of sale--Directions issued to Estate officer while initiating proceedings for resumption of a site or building, the non-compliance whereof shall vitiate the resumption proceedings besides other consequences:
(1) Estate Officer shall be obligated to determine whether the breach of terms and conditions of allotment or violation of any building byelaw by the allottee is ‘willful’ and ‘deliberate’ or it has occurred for the reasons beyond his control? In the case of the latter category it shall not be possible to invoke the power mechanically and resume the property.
For example, if an allottee indisputably rents out his residential premises to a tenant for residential purposes only and the tenant in utter defiance to the terms of tenancy starts misusing the premises for commercial purposes against whom the landlord, without any inordinate delay, initiates eviction proceedings under the East Punjab Urban Rent Restriction Act, 1949 (as applicable to UT Chandigarh) inter alia on the ground of misuse of the premises, how can the allottee be held guilty of willful and deliberate violation of the building byelaws? The only recourse in such an eventuality available with the Estate Officer shall be to keep the resumption proceedings in abeyance till the eviction proceedings are decided though he must keep track of the status of eviction proceedings from time to time--Any attempt to deviate from such like fait accompli conditions shall vitiate the action rendering the resumption proceedings to nothing but a colourable exercise and/or abuse of power by the Estate Officer--Similarly, the first or stray violation(s) can hardly justify the impaling effect of ‘resumption’ and any such casual attempt with a bureaucratic approach deserves serious view in exercise of power of judicial review. (82)--Contrary to it and again for illustrative purposes, if a premises is being misused by the tenant with a tacit understanding or in connivance with the landlord and the so-called eviction proceedings are a ruse to defy and defeat the action under the 1952 Act, the Estate Officer shall be well within his right to return such a finding of fact on appreciation of evidence on record, and hold that the misuse of premises by the tenant shall be deemed to be violation of Building Byelaws by the allottee-cum-landlord.
(2) ‘Resumption’ being the last resort, the Estate Officer shall not initiate proceedings under Section 8-A unless the wrongdoer has been penalized to the maximum firstly under Section 15 or under the Rules framed under Section 22 of the Act and every such action shall have to be expressly disclosed in the show cause notice for initiating the resumption proceedings. (Paras 81, 82 & 87)
(C) Capital of Punjab (Development & Regulation Act, 1852, Ss.10(2) & (4)--Directions to Appellate & Revisional authorities:
(1) The inadvertent or otherwise omission by the Estate Officer in overlooking the sine qua non conditions for resumption shall have to be rectified by the appellate authority in performance of its plenary duty to ‘confirm’, ‘vary’ or ‘reverse’ the order of the Estate Officer.
(2) The powers enjoyed upon by the appellate authority are thus vast, wide and expansive enough to re-appraise the evidence led under Section 8-A, to take notice of the subsequent events, if any, and form an independent view on the sustainability of the resumption order.
(3) It cannot be said that even if the ground of resumption is nonexistent yet the appellate authority would have a discretion to “confirm” the order of resumption and dismiss the appeal--Such a misconstruction of Section 10(2) of the Act would lead to arbitrary and discriminatory consequences against the very ethos of Article 14 of the Constitution.
(4) Dropping of the resumption proceedings by the appellate or revisional Authorities would not forestall such authorities from imposing exemplary alternative penalty like fine etc. on the allottee-in-default in accordance with law--Any other construction of Section 10(2)&(4) would circumvent the true amplitude of the phrases “vary”, “reverse”, “alter” or “rescind” as they.
(5) The power of judicial review under Articles 226 or 32 of the Constitution completely wipes out the outmost fear of discriminatory or arbitrary exercise of powers by the Estate Officer, appellate or revisional authorities.
(D) Capital of Punjab (Development & Regulation Act, 1852, S.8-A--Resumption of building--Breach of condition of sale--Directions issued to Administrator to update the directions given to Estate Officer, Appellate and Revisional authorities in the Act before 31st March 2013. (Para 107)
Mr. Surya Kant, J.: - A Division Bench of this Court vide order dated 16.11.2010 made the following reference for adjudication by a Full Bench:-
“In this petition, the constitutional validity of Section 8-A of the Capital of Punjab (Development & Regulation) Act, 1952 (for short ‘the Act’) has been challenged primarily on the ground that the earlier Full Bench judgement of this Court in case Ram Puri, Chandigarh vs. Chief Commissioner, Chandigarh and others, AIR 1982 (Pb & Hr) 301, in paragraph Nos. 66, 67 and 68, while upholding the validity of Section 8-A of the Act, nevertheless referred to Rule 11-D of the Chandigarh (Sales of Sites and Building) Rules, 1960 (for short ‘the Rules of 1960), which according to the Full Bench tampers the rigor and softens the strictness of resumption by making it possible to offer the same property to the original transferee on certain liberal terms.
2. It is not in dispute that the said provision which form one of the factors in upholding the constitutional validity of Section 8-A of the Act, was subsequently deleted w.e.f. 31.01.2007. Though the learned counsel for the respondents has relied upon a judgement of the Hon’ble Supreme Court in case Babu Singh Bains etc. vs. Union of India and others etc. 1996 HRR 511, but that judgement was rendered on 11.9.1996 when Rule 11-D existed on the statute. Infact while upholding the validity of Section 8-A of the Act, Hon’ble Supreme Court referred to merits of the dispute arising under Rule 11-D of the Rules.
3. Accordingly, in our view the judgement of the Hon’ble Supreme Court rendered at a time when Rule 11-D of the rules existed would not be of much assistance to the respondents. We are accordingly of the view that since the earlier judgement was delivered by a Full Bench, the constitutional validity of Section 8-A of the Act deserves to be heard by a Full Bench.”
2. The petitioners, as indicated by the reference order, assail Section 8-A of the Capital of Punjab (Development & Regulation) Act, 1952 (in short, ‘the 1952 Act’), it being ultra vires the Constitution of India after the deletion of Rule 11-D of the Chandigarh (Sales of Sites & Building) Rules, 1960 (in short, ‘the 1960 Rules’) w.e.f. 31.01.2007. They also assail the deletion of Rule 11-D and seek directions for retransfer of the resumed sites in their favour on the premise that the afore-stated Rule was in force when they applied for re-transfer of such sites.
3. A brief resume of the facts of CWP Nos.16634, 16163, 20895 of 2008; 167 & 1416 of 2010, giving rise to this reference and which are being disposed of together, are also relevant at this stage.
CWP No.16634 of 2008
(Dheera Singh vs. The Union Territory, Chandigarh Administration & Ors.)
4. Plot No.317, Industrial Area, Phase-I, Chandigarh was allotted to the petitioner’s father late Harbans Singh on 17.07.1961. The industrial plot was found to have been misused for residential purposes and was resumed on 15.11.1979 after hearing the allottee and giving an opportunity to produce evidence. The allottee’s appeal and revision were also dismissed on 11.04.1984 and 17.08.1989, respectively and he did not challenge these orders till he unfortunately passed away on 04.04.1993. The petitioner who inherited the estate of his father as per registered Will dated 30.03.1993, challenged these orders in CWP No.3783 of 2007 which was dismissed on 13.03.2007. It appears that the petitioner never applied for re-allotment of the resumed site under Rule 11-D of the 1960 Rules before 31.01.2007. The first application for re-allotment was submitted by the petitioner on 26.09.2007 (Annexure P4) which was rejected by a self-speaking order dated 25.06.2008 (Annexure P5) primarily on the plea that Rule 11-D was non-existent w.e.f. 31.01.2007. The petitioner now asserts that Section 8-A of the 1952 Act is unconstitutional especially after deletion of Rule 11-D. Alternatively, the petitioner claims that the resumed property be reallotted to hi
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