The liberty granted by the Hon'ble Supreme Court to seek re-transfer under Rule 11-D of the Rules could not be defeated by subsequent judgments, and the court applied the doctrine of proportionality in restoring the residential site to the petitioner.

Hemant Gupta, J

Challenge in the present writ petition is to the orders passed by the Authorities under the Capital of Punjab (Development and Regulation) Act, 1952 (for short 'the Act') resuming residential site bearing House No. 3322, Sector 21-D, Chandigarh and subsequently, declining the request of the petitioner for transfer of site in question in terms of Rule 11-D of the Chandigarh (Sales of Sites and Building) Rules, 1960 (for short 'the Rules').

2. The residential site in question allotted to one Smt. Indra Wati. She sold such site to one Jagdev Singh Dutta, who further sold the site to the mother of the petitioner namely Smt. Rajinder Kaur vide registered sale deed dated 31.08.1967. There was a suit filed by Jagdev Singh Dutta claiming title over the property, which was dismissed on 08.08.1984. The property was under tenancy and the tenant started running a guest house. Keeping in view the misuse of the residential site as guest house, the Estate Officer passed an order of resumption on 20.04.1976 (Annexure P-2). Appeal against the said order was dismissed and also the revision. The petitioner filed CWP No. 3931 of 1978, which was also dismissed on 08.04.1980. At this stage, we may notice that the order dated 08.04.1980 passed by this Court is not available in the records of this Court nor a copy of the same has been produced by the petitioner or by the counsel for the Administration. However, Mr. Kakkar stated that such writ petition was dismissed in the light of LPA No. 101 of 1977 titled 'Brij Mohan Vs. Chief Administrator & others' decided on 19.02.1980 (since reported as Brij Mohan Vs. The Chief Administrator, Union Territory, Chandigarh and Others, AIR 1980 P&H 236 : (1980) 2 ILR (P&H) 231 ). In the said letters patent appeal, the issue was, whether the tenant of a building is entitled to a notice before resumption of such building.

3. Thereafter, the petitioner filed Special Leave Petition bearing No. 4677 of 1980, which was later on converted into Civil Appeal No. 3105 of 1981. Such Civil Appeal was disposed of on 25.08.1992, when the following order was passed:

"...Mr. Jitender Sharma, appearing for the respondent - the Union Territory of Chandigarh, fairly agrees on behalf of the Administration that in the event of the appellant and the landlord giving an undertaking in writing by an application under Rule 11D of Chandigarh (Sale and Sites and Building) Rules, 1960 that the alleged misuse will not be repeated, the Administration would have no objection to cancel the resumption order. This submission is recorded.

Counsel for the appellant, Mr. M.L. Sharma, submits that his client and the landlord will give the said undertaking by asking an application under Rule 11D within one month from today. The submission is recorded.

We make it clear that in the event of the appellant and his landlord failing to give the undertaking as aforesaid within one month from today, this appeal shall stand dismissed without further reference to this court. Subject to this, the appeal is disposed of. No costs."

4. In terms of the aforesaid order passed by the Hon'ble Supreme Court, the petitioner moved an application for re-transfer of the house under Rule 11-D of the Rules alongwith an affidavit on 15.09.1992. Pursuant to such application, the site was inspected in the year 1993 and on the basis of report dated 25.01.1993, the site was transferred in favour of the petitioner on 09.03.1993. However, such transfer was withdrawn suo motu. Thereafter, though the misuse of the house was stopped as per the petitioner, but as per report the premises was found to be used as paying guest accommodation. Later, it was reported that the rooms are lying vacant, but the request of the petitioner for re-transfer was declined on 16.07.2003. An appeal against the said order was dismissed on 07.05.2004. But in revision, the matter was remanded back to the Estate Officer. The relevant extract from the order dated 21.09.2004 passed in revision r