Col. Ramesh Mehta and others vs The Chandigarh Administation, Union Territory, Chandigarh and others

A.L. Bahri, J.—Challenge in this writ petition filed under Articles 226 and 227 of the Constitution of India, are to different orders passed by the authorities under the Capital of Punjab (Development and Regulation) Act, 1952, whereby site No. 98-B, Sector 8-C, Chandigarh (now house No. 1084) was resumed and 10 per cent of the price of the plot was ordered to be forfeited.

Residential site No. 98 A, Sector 8-C, Chandigarh was allotted to Shri Chhabili Lall Mehta on free-hold basis in the year, 1952. The site measured 2 kanals of land. On the said site house was constructed and completed. After the death of Sh. Chhabili Lall Mehta, the house stands transferred in the names of his widow and children, the present Petitioners (Col. Ramesh Mehta and others)

The Legal Rmembrancer and Director Prosecution and Litigation and Secretary to Government, Punjab took the aforesaid house on rent for his office several years ago. The Estate Officer, Chandigarh Administration, issued a show-cause notice to the Petitioners for resuming the site on the grounds of mis-use. The said show cause notice was not served upon the Petitioners. However, the Estate Officer vide his order dated May 16, 1983, and communicated on September 8, 1983 resumed the site and ordered forfeiture of 10 per cent of the premium. Annexure P-1 is the copy of the order. When the Petitioners came to know about this order, they filed an appeal before the Chief Administrator, Union Territory, Chandigarh, who vide his order dated September 10, 1985, restored the site to the Petitioners on the condition that the mis-use will be stopped by March 31, 1986 (within six months) and the amount of forfeiture was to stand. It was further ordered if the mis-use of the site would continue after March 31, 1986, the order of resumption will become operative. Copy of this order is Annexure P.2. There was family settlement and the house in dispute fell to the share of Col. Ramesh Mehta-Petitioner No. 1. However, so far his name has not been entered in the record with the Estate Officer. The Petitioner No. 1 being in Army, posted at Bombay. He tried his best to get the house vacated from the Legal Remembrancer and Director Prosecution, Punjab, but he could not succeed in getting it vacated within the period allowed in the appeal aforesaid.

Proceedings under the Public Premises Act were initiated against the Legal Remembrancer and Director Prosecution. Copy of the notice dated December, 22, 1988, is Annexure P-3. Ultimately, on January 6, 1989, the house was vacated by the Legal Remembrancer. Immediately thereafter, on January 9, 1989, the Petitioners filed an appeal before the Chief Administrator, Chandigarh Administration, Respondent No. 2, stating therein that the mis-use has been stopped and the ground on which the site was resumed is no more available; and that the site be restored. Annexure P-5 is the copy of the grounds of appeal. The appeal was listed for hearing on January, 31, 1989. The Estate Officer submitted his comments, copy of which is Annexure P. 6. The Finance Secretary, after hearing the parties allowed the same and ordered the restoration of the site. On the next day when the Petitioner went to get the copy of the order passed by the Finance Secretary, he was orally informed that Respondent No. 2 the Finance Secretary had no jurisdiction to review the earlier order passed by the Chief Administrator. Thus, the Petitioners, as advised, filed a revision petition before the Chief Commissioner, Union Territory, Chandigarh, on February 1, 1989, copy Annexure P-7. On the very day. Advisor to Administrator without getting comments from the Estate Officer, dismissed the same in limine vide copy of the order, Annexure P-8. The orders are under challenge in this writ petition.

The petition was contested on behalf of the Respondents. Written statement was filed by the Estate Officer-Respondent No. 1. Mostly the facts were admitted. No fresh appeal was competent. The Chief Administrator had no jurisdiction to restore his previous order.

After hearing the counsel for the parties, I find that the impugned order, Annexure P-8, cannot be sustained in law whereby the revision petition filed by the Petitioners was dismissed in limine. The perusal of the facts narrated above shows that while restoring the site in dispute to the Petitioners, a condition was imposed that the Petitioners would get the misuse stopped i.e., to get the house vacated from the Legal Remembrancer, Punjab, within a period of six months. In substance, after the house was vacated, what the Petitioners wanted in the subsequent application was extension of the time for getting the misuse stopped. As a matter of fact such a condition could not be imposed in order, Annexure P.2 as stopping of misuse was not under the control of the Petitioner.

If the case is considered in the background that Chandigarh Capital was developed while Punjab was joint and it was after re-organisation that the entire Capital Project came under the Administration of Union Territory. Even in the administration of Union Territory 60 per cent of the expenditure is met by the Punjab, if there was scarcity of accommodation for the offices of the Punjab Government in Chandigarh and they had taken private houses on rent obviously, before re organisation, the Punjab Government or the authorities under the Act were not expected to resume the site as in that case, fault, equally lay with the Punjab Government to get the house on rent for use as office. The owner of the house in such circumstances could not be punished. Even after re-organisation, the only change is that the administration of Chandigarh is now under the Union Territory. Broadly speaking the fight of the Petitioners is against the Government may he Punjab Government for the Union Territory Administration. The Union Territory Administration has acquired under the re-organisation Act all assets and liabilities as far as Capital Project is concerned and in that sense has stepped into the shoes of the Punjab Government. If the Government had taken the house on rent for being used as an office technioally it may be an irregularity. However, justice does not require that the owner of the house should be made to suffer on that account.

Learned Counsel for the Petitioner stated that since 10 per cent of the forfeiture amount has already been paid, the Petitioners would feel satisfied if the site stands restored to them while extending the period in getting the house vacated. I find nothing wrong in this request. The matter of resumption of sites/houses situated in Chandigarh was under consideration of the Full Bench of this Court in Shri Ram Puri v. The Chief Commissioner, Chandigarh (1982) 84 P.L.R. 388. The following observations may be noticed:

Power of resumption u/s 8-A is merely a discretionary and an enabling power. The statute does not Jay down any mandate that it must necessarily be exercised in a particular situation. In Sub-section (1) thereof it is first in the discretion of the Estate Officer that he may issue a notice to show cause why an order of resumption of site or building may not be made Equally under Sub-section (2) after considering the cause shown against such a notice it is optional for the Estate Officer to order such resumption or not. The word used in both the sub section is ''may'' and not ''shall''. To put it in plain language it is not mandatory for the authority to order resumption but only in extreme cases it enables it to 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 asume that the authority would necessarily use this power arbitrarily and whimsically and that they will use this hammer to swat a fly.

The aforesaid decision was followed in Shri Brij Bhushan v. The Union Territory Administration, Chandigarh (1987-1) 91 P.L.R. 598. This was a case of non-completion of construction on the site allotted. The order of resumption was set aside applying the ratio of the decision referred to above. This writ petition merits acceptance and necessary directions are required to be issued as under:

For the reasons recorded above, this writ petition is allowed with costs. Counsel''s fee Rs. 500/-. Order Annexure P-8 dated February 1, 1989, passed by the Adviser to the Adminstrator, Union Territory, Chandigarh, is quashed and the earlier order Annexure P-2, dated September, 10, 1985, passed by the Chief Administrator, Union Territory, Chandigarh, is also quashed to the extent of resuming the site on failure of the Petitioners to get the misuse stopped, i.e., to get the tenant evicted within the period of six months. The resultant effect would be that the site, shall stand restored to the Petitioners, who are also in possession of the house in dispute.