Bhagwant Singh vs State of Punjab

J.M. Tandon, J.

The Administrative Secretaries exercised the powers of the Ministers in terms of the Rules of Business during the period of Governor''s Rule in the State of Punjab in 1980. The allotment of plots in Urban Estate out of the discretionary quota which could otherwise be made by the Minister could thus be made by the concerned Administrative Secretaries during that period. In May, 1980, when the State of Punjab was under Governor''s rule, the petitioner was allotted plot No. 2009 (500 Square Yards) Phase X in Sahibzada Ajit Singh Nagar (Mohali) Urban Estate out of the discretionary quota under the orders of the Administrative Secretary. The petitioner made the initial deposit and was given the possession of the plot. In June, 1980, he was allotted plot No. 707, Phase I in Sahibzada Ajit Singh Nagar by way of exchange for plot No. 2009. On November 27, 1980, the allotment of the plot made in the name of the petitioner was cancelled. The petitioner assailed the cancellation order in Civil Writ Petition No. 580 of 1981 which was disposed of on September 23, 1981, by the following order:

"It is stated by Mr. J.L. Gupta, learned counsel appearing for the respondents, that the impugned order cancelling the allotment of the petitioners has been withdrawn. The learned counsel further states that if the Government hereafter takes any action for the cancellation of the allotment of the petitioners, then it would proceed in accordance with law and before passing any order, full opportunity of hearing would be given to the petitioners and a speaking order would be passed.

In view of what has been stated by the learned counsel for the respondents, the learned counsel for the petitioners states that these petitions be dismissed as withdrawn. We order accordingly.

It may be observed that in case an adverse order is passed against the petitioners and in case they choose to file fresh petitions in this Court, then they would be entitled to raise all the objections which they have taken in these petitions, available to them."

In view of the undertaking given in Civil Writ Petition No. 580 of 1981 the order dated November 27, 1980, cancelling the allotment of plot No. 707, Phase I, Sahibzada Ajit Singh Nagar was withdrawn vide Memorandum dated February 24, 1982 (P.10).

The Punjab Urban Estates (Development and Regulation) Amendment Act, 1981, inter alia introduced section 11A in the Punjab Urban Estates (Development and Regulation) Act, 1964 (hereinafter the Act). The relevant part of section 11A reads :

"11.A. Power to cancel sale, lease or other transfer.(1) If it appears to the State Government that any sale, lease or other transfers of any site in an urban Estate has been made in contravention of this Act or any rules made thereunder or is fraudulent or is otherwise inexpedient, it may, notwithstanding anything contained in any contract or any other law for the time being in force, by an order in writing, stating reasons therefore, cancel such sale, lease or other transfer.

(2) Any person aggrieved by an order made under subsection (1) may within thirty days of the date of communication of the order to him, make an application in writing to the State Government for review of the said order and the State Government may, after giving an opportunity of being heard to such person, either rescind, vary or confirm the said order.

(3) ......................

(4) No order under subsection (1) shall be made in respect of any sale, lease or other transfer made

(a) prior to the commencement of the Punjab Urban Estates (Development and Regulation) Amendment Act, 1981

(i) if such sale, lease or other transfer was made more than two years prior to such commencement, or

(ii) after the expiry of one year from such commencement, or

(b) after the commencement of the Punjab Urban Estates (Development and Regulation) Amendment Act, 1981, after the expiry of a period of one year from the date of such sale, lease or other transfer........"

On March 22, 1982, the petitioner was issued a notice (P11) under section 11A of the Act to show cause notice within 15 days of the receipt thereof as to why action contemplated in subsection (1) of Section 11A of the Act may not be taken against him. After the receipt of the notice, the petitioner sent the communication dated April 7, 1982 (P.12) to the Secretary to Government Punjab, Housing and Urban Development, Chandigarh, wherein he prayed that the copies of the documents as also information detailed therein be supplied to him to enable him to give reply to the show cause notice. The relevant parts of this communication read :

"In order to enable me to give reply to the show cause notice, under section 11A of the Punjab Urban Estates (Development and Regulation) Act, 1964, issued by the Government of Punjab, Department of Housing and Urban Development, bearing No. SUDII/3182, dated 22.3.1982, in respect of the above mentioned plot, the copies of the documents, and the information enlisted in paragraphs below, from Serial Nos. 1 to 49, are required, which may kindly be supplied to me at the earliest so as to enable me to prepare my reply to the show cause notice:

It is, therefore, requested that the abovenoted documents and information may kindly be supplied to me immediately and I may be granted a fortnight''s time after the aforesaid copies are supplied to me to enable me to submit my reply to the show cause notice, issued by the Government".

The petitioner was not supplied the copies of the documents or other information asked for in the communication P12. In fact, no reply was sent to him in response to his communication. The petitioner was sent the impugned order dated May 22, 1982 (P4) cancelling the allotment of the plot in his favour under section 11A of the Act. The relevant part of this order reads :

"Reference Government Memo No. SUDII/3182, dated 22.3.1982 on the subject noted above.

Your reply to the show cause notice and subsequent transfer application have been considered by the Government. The transfer application was rejected vide Government''s orders dated 7.5.1982. It has been observed that the documents sought to be inspected are either irrelevant or are supposed to be in your knowledge. The request for inspection of documents cannot be acceded to as it has obviously been made for the purpose of vexation and delay so that statutory period of limitation may run out. As regards show cause notice, Government have observed that

In the circumstances, the original allotment and subsequent exchange of the said plots in your favour have been cancelled by the Government under Section 11A of the Punjab Urban Estates (Development and Regulation) Act, 1964".

The petitioner has assailed the order P14 in the present writ petition.

The learned counsel for the petitioner has argued that the impugned order P14 was passed against the petitioner without affording him a reasonable opportunity of hearing. It could also be not passed on the basis of any of the grounds detailed therein. Section 11A of the Act is unconstitutional with the result that the provision contained therein could not be invoked against the petitioner.

The power under section 11A(1) of the Act could be exercised by the State Government in the matter of cancellation of any sale, lease or transfer of any site in an Urban Estate. It is understood that such power could be exercised by the competent authority after affording a reasonable opportunity of hearing to the affected party. The petitioner was consequently issued show cause notice dated March 22, 1982, (P.11). The petitioner addressed the communication dated April 7, 1982 (P.12) to the Secretary of the Department wherein he prayed that the information as also the copies of the documents detailed therein be supplied to enable him to file a reply to the show cause notice. The information and the copies of the documents were not supplied to him. In fact, he was not sent any reply in response to his communication. The petitioner did not submit his reply to the show cause notice before he received the impugned order P14. The point for consideration is whether under these circumstances the petitioner can be treated to have been afforded a reasonable opportunity of hearing or not. In my opinion, it cannot be held that the petitioner has been afforded a reasonable opportunity of hearing before the impugned order P14 was passed. It is true that it has been observed in the impugned order P14 that the documents sought to be inspected are either irrelevant or are supposed to be in the knowledge of the petitioner. Without going into the merits of this observation, the authorities should have at least sent such communication to the petitioner to enable him to send his explanation to the show cause notice. It is evident that the petitioner did not send his reply (or explanation) to the show cause notice. It is evident that the petitioner did not send his reply (or explanation) to the show cause notice because he all along waited for the information and the copies of the documents detailed in his communication P12. It has been stated in the impugned order P14 that the reply sent by the petitioner to the show cause notice has been considered by the Government. The fact of the matter is that the petitioner did not send any reply to the show cause notice and so the question of its consideration at the level of the Government did not arise. The impugned order P14 having been passed against the petitioner without affording him a reasonable opportunity cannot be sustained.

The learned Assistant Advocate General appearing for the State has argued that the writ petition is liable to be dismissed because the petitioner has not availed of the remedy provided under section 11A(2) of the Act. The contention is without merit. The power under section 11A(1) can be exercised by the State Government. It is understood that an order under this subsection can be passed after affording a reasonable opportunity of hearing to the affected party. The prayer for review of the order passed under subsection (1) of Section 11A of the Act can be entertained by the State Government under subsection (2) thereof. The remedy of review to the same authority which passed the order under subsection (1) after hearing the affected party is illusory. This apart, the impugned order P14 having been passed under section 11A(1) without affording a reasonable opportunity of hearing to the affected party is a nullity. Under these circumstances, the writ petition cannot be dismissed on the ground that the petitioner has not availed of the remedy provided under subsection (2) of section 11A of the Act.

In view of the discussion above, the writ petition is allowed and the impugned order P14 is set aside with no order as to costs.