Chander Parkash vs Advisor to the Administrator, U.T.Chandigarh

G.S. Singhvi, J.—This petition has been filed with the following prayers :

"Issuance of a writ in the nature of certiorari quashing Annexure P1 and further declaring Section 8A of the Capital of Punjab (Development and Regulation) Act, 1952 and Rule 9 of the Chandigarh (Sale of Sites and Buildings) Rules, 1960 being violative of Articles 14 and 19(g) of the Constitution of India and liable to be struck down as unconstitutional."

Perusal of the record shows that the proceedings under Section 8A of the Capital of Punjab (Development and Regulation) Act, 1952 (hereinafter referred to as `the Act of 1952'') as amended by the Chandigarh Amendment Act of 1973 were initiated against the petitioner for misuse of residential premises. Immediately after the service of notice Annexure P1 dated 15.1.1992, the petitioner approached this Court and persuaded it to stay the proceedings initiated against him by contending that Section 8A under which the proceedings have been initiated is ultra vires to Articles 14 and 19(1)(g) of the Constitution of India. He relied on the judgment of the Supreme Court in Jagdish Chand v. Radhey Sham, 1972 R.C.R.(Rent) 862 : AIR 1972 SC 2587.

After hearing the learned counsel, we are convinced that the writ petition is liable to be dismissed because :

(i) Constitutional validity of Section 8A has been upheld by a majority decision of this Court in Ram Puri v. Chief Commissioner, AIR 1982 P&H 301 and also by the Supreme Court in Babu Singh Bains v. Union of India and others, 1996(6) SCC 565 : 1996(3) RCR(Civil) 752 (SC).

In the majority judgment of the Full Bench, it has been held that :

"The fundamental right under Article 19(1)(f) to acquire, hold and dispose of property is not an absolute right. It can be hedged in by the imposition of reasonable restrictions on its exercise in the interest of general public. Apart from this express limitation imposed by the Constitution itself, binding precedents of the Final Court have authoritatively highlighted that in this context considerations of larger, social and public purpose are germane to the construction of this Article.

The challenge to the constitutionality of a a statute on the anvil of Article 19(1)(f) is not merely to be judged from the particular provisions of the Section alone. It is permissible and indeed desirable for the Court to take judicial notice of the facts which led to the enactment of the statute and the avowed objects and reason thereof. Again the preamble to the Act may provide a clue to its interpretation. Further the provisions of the impugned Section along with the other supplementary provisions of the Act as also the statutory rules made thereunder, have all to be viewed as a whole for testing its constitutionality.

It is well settled that the taint of unconstitutionality does not attach to a provision of law merely because there may be remote possibilities of the abuse of power conferred thereby. In such a situation it is only the arbitrary or the wrongful exercise of the power which can be struck down but not the statute itself.

The entire Act was purposefully directed to provide a reasonable social control of the urbanisation visualised by the creation of an altogether new capital city for the State from scratch. The three fold preeminent ideas underlying the same were the need and incentive to create an altogether new town at a place where none existed and that too within the shortest possible time and further to ensure that it conformed to an ideal concept of a planned city as against the haphazard urbanisation or the mushroom growth of slums which in the ultimate analysis can even strangulate an existing town to extinction.

It is not mandatory for the authority to order resumption, but only in extreme cases it enables it do so when the other powers and sanctions to enforce the purpose of the Act have failed, or in the circumstances it is the only remedial power which can be applied. Therefore, it is farcical and imaginary to assume that the authority would necessarily use this power arbitrarily and whimsically and that they will use this hammer to swat a fly.

In the larger conspectus of the purposes of the Act itself, its preamble the specific provisions of Section 8A; the setting in which it is placed along with the supplementary Sections of the Act and the rules framed thereunder, it has to be held that the enabling power of resumption conferred thereby is only a reasonable restriction on the fundamental right to hold, acquire and dispose of property and is, therefore, in no way violative of Article 19(1)(f)..........

The subsequent amendments introduced in Sections 3 and 8 as also the deletion of Section 9 altogether and its substitution by Section 8A of the Act was designed to and has undoubtedly cured the informities which their Lordships had discerned in the previous provisions in Radhey Sham''s case, AIR 1972 SC 2587. By these legislative changes the charge on the transferred site has been abolished and similarly the clog on the transfer to the third party stands removed. Further there are now inbuilt guarantees and safeguards provided in Section 8A itself by ensuring a reasonable opportunity to show cause against any proposed resumption or forfeiture. A further limitation that forfeiture in no case shall exceed 10 per cent of the total amount of consideration money has been itself laid down therein. The Estate Officer is obliged to record his reasons after giving adequate opportunity including the right to lead evidence to the transferee before passing an order adverse to his interest. Further the statute and the rules thereunder provide for an appeal and revision against such orders. Therefore it cannot be said that Section 8A suffer from the vice of discrimination or in any way violate the equality clause under Article 14 of the Constitution."

The judgment of the Full Bench has been expressly approved by the Supreme Court while repelling the challenge to the validity of Section 8A. Therefore, we do not find any justification to strike down Section 8A of the Act or Rule 9 of the Chandigarh (Sale of Sites and Buildings) Rules, 1960.

The grievance of the petitioner against notice Annexure P1 deserves to be rejected as premature. Against the said notice, the petitioner is entitled to file reply and show to the competent authority that he has not misused the premises or has not allowed the misuse of premises by anyone else and if at all the competent authority passes an order adversely affecting the rights and interest of the petitioner, then he can avail remedies by way of appeal of revision under the Act of 1952.

For reasons mentioned above, the writ petition is dismissed with liberty to the respondents to proceed further on the basis of notice Annexure P1. Simultaneously, we give liberty to the petitioner to avail remedies under the Act of 1952 or the rules framed thereunder in case the order adversely affecting his right or interest is passed by the competent authority.