Dr. S. Radha Krishan Model Midlle School vs Union Territory Chandigarh

G.S. Singhvi, J.—This is a petition to quash the orders Annexures P.3, P.4, P.5 and P.7 passed respectively by the Assistant Estate Officer, Chandigarh, the Chief Administrator and the Adviser to the Administration, Union Territory, Chandigarh.

The petitioner is running a school in House No.3144, Section 28-D Chandigarh. This is a residential house belonging to one Shri Chuni Lal.

On 26.11.1993, the Assistant Estate Officer, (exercising the powers of the Estate Officer) Chandigarh, issued notice to the owner of the house Shri Chuni Lal and the Principal, Dr. S. Radhakrishan Model Middle School, u/s 8-A of the Capital of Punjab (Development and Regulation) Act, 1952 requiring them to show cause as to why the site be not resumed for breach of the conditions of the allotment and 10 per cent of the premium be not deducted along with interest. After the issuance of notice the Assistant Estate Officer, adjourned the hearing of the case on 21.11.1993, 25.1.1994, 1.3.1994, 5.4.1994, 10.5.1994 and 17.1.1995. However, the owner as well as the tenant failed to offer any explanation regarding continued misuser of the premises, namely, running of school in the residential building. Therefore, the Assistant Estate Officer passed an order for resumption of the building. He also ordered forfeiture of 10 per cent of the premium along with interest. It appears from the record that Shri Chuni Lal died after passing of the order of resumption and his wife Smt. Sumitra Devi preferred an appeal before the Chief Administrator, Union Territory, Chandigarh u/s 10 of the Act of 1952. It was urged on behalf of Smt. Sumitra Devi that the school was being run unauthorisedly in-as-much as the premises had been let out to the tenant for residential purposes but the tenant had started running a School. The counsel appearing for Smt. Sumitra Devi prayed for grant of time to stop the misuser. This plea was accepted by the Chief Administrator who stayed the operation of the order of the Assistant Estate officer till 24.1.1997 and asked Smt. Sumitra Devi to stop the misuser. At the same time, it was made clear that failure of the allottee to stop the misuser would result in making the order of resumption operational. Smt. Sumitra Devi did not feel satisfied with the concession granted by the Chief Administrator. She, therefore, filed a revision petition before the Advisor to the Administrator. That petition was disposed of by granting extension in time fixed for removal of misuser of the building. The Advisor directed Smt. Sumitra Devi to see that the misuser was stopped by 31.3.1997.

It appears that during the pendency of the revision petition the petitioner filed an application for its impleadment as a party in the revision petition before the Adviser to the Administrator. That application was ordered to be fixed on 2.4.1997, However, without waiting for the decision of the Advisor to the Administrator, the petitioner filed this petition on 31.3.1997 with the prayer to quash the orders passed by the Assistant Estate Officer, etc.

When the writ petition came up for hearing on 1.4.1997 the Court observed that the orders passed by the Assistant Estate Officer, Chief Administrator and the Advisor to the Administrator do not suffer from any error of law requiring issuance of a writ of certiorari because the learned counsel for the petitioner failed to show that the finding recorded by the Assistant Estate Officer, the Chief Administrator and the Advisor suffer from any error of law. Nevertheless, the Court thought it proper to issue notice to the respondents keeping in view the submission of the learned counsel that some more time may be allowed to the petitioner to shift the school from the existing premises. We have heard Shri Chopra, learned counsel for the petitioner and Shri Goyal, learned counsel for the respondents and have perused the record to the case.

Section 8-A of the Act of 1952 which empowers the Estate Officer to order the resumption of site or building or both on account of breach of the conditions of sale reads as under :-

"8-A. Resumption and forfeiture for breach of conditions of transfer:-

(1) if any transferee has failed to pay the consideration money or any instalment thereof on account of the sale of any site or building or both, u/s 3 or has committed a breach of any other conditions of such sale, the Estate Officer may, by notice in writing, call upon the transferee to show cause why an order of resumption of the site or building, or both, as the case may be, and forfeiture of the whole or any part of the money, if any, paid in respect thereof which in no case shall exceed 10 per cent of the total amount of the consideration money, interest and other dues payable in respect of the sale of the site or building or both should not be made.

(2) After considering the cause, if any, shown by the transferee in pursuance of a notice under Sub-section (1) and any evidence he may produce in support of the same and after giving him a reasonable opportunity of being heard in the matter, the Estate officer may, for reasons to be recorded in writing, make an order resuming the site or building or both, as the case may be, so sold and directing the forfeiture as provided in Sub-section (1), of the whole or any part of the money paid in respect of such sale."

The constitutional validity of Section 8-A has been upheld by a Full Bench of this Court in Ram Puri v. Chief Commissioner, Chandigarh and Ors. (1982)84 F.L.R. 388 (F.B.). That decision has received approval of the Apex Court in Babu Singh Bains etc. Vs. Union of India and others etc., In that case, the Supreme Court examined the challenge to the vires of Section 8-A of the Act of 1952 and held that the law laid down in Ram Puri''s case was correct. The Supreme Court further held :-

"Section 8-A is neither arbitrary nor violative of Article 14 of the Constitution because in-built procedure for giving an opportunity of hearing and right to adduce evidence and its consideration by the Estate officer has been prescribed in the Statute before an order of resumption can be passed and it is obligatory for the competent authority to record reasons in support of the order of resumption."

Their Lordships then considered the appeals filed by various parties. The Supreme Court dismissed Civil Appeal Nos. 12936-37 of 1996, 12932-33 of 1996, 12947-48 of 1996 and 12949, 12934-35, 12955, 12938-43, 12945-46 of 1996. At the same time, the Apex Court gave six months'' time to the appellants to stop the misuser. It also directed the appellants to furnish under-taking before the estate officer within four weeks that they would stop the misuser on expiry of six months.

On consideration of the facts of this case, we are convinced that the challenge made by the petitioner to the order of resumption passed by the Assistant Estate officer deserves to be negatived in the light of the judgement of the Supreme Court in Babu Singh Bains''s case (supra).

The argument of Shri Chopra that the order of resumption should be nullified because separate notice was not served upon the petitioner has no substance whatsoever. A look at the order dated 17.5.1995 passed by the Assistant Estate officer shows that the notice had been given by the competent authority to Shri Chuni Lal, owner of the building and the Principal of Dr. S. Radha Krishan Model Middle School i.e. the tenant. It is, therefore, evident that before passing the order of resumption, the Assistant Estate officer had complied with the principles of natural justice. It is a different thing that neither the owner nor the tenant stopped the misuser even after issuance of the notice forcing the Assistant Estate Officer to pass the order of resumption.

No doubt, in paragraph 4 of the writ petition, it has been stated that the petitioner did not have the knowledge about the resumption proceedings, in our opinion, there is no reason for us to accept this plea of the petitioner because the petitioner has refrained from asserting that the notice issued by the Assistant Estate Officer vide Memo No. 26349-50 dated 26.11.1993 was not received by it. In the absence of such an assertion it cannot be held that the petitioner did not have notice of the proceedings initiated by the Assistant Estate Officer.

That apart, we are of the opinion that absence of a specific notice to the petitioner cannot be made basis for nullifying the order of the Assistant Estate Officer. Learned counsel for the petitioner could not point out any apparent error in the findings recorded by the Assistant Estate Officer regarding misuser of the building. In fact, the learned counsel had to concede that a school was being run in the residential building. We repeatedly asked the learned counsel to show as to how the finding of misuser can be treated as erroneous, but he failed to do so. Thus, even if for a moment we were to accept the plea of the petitioner regarding non-service of the notice, we do not find it to be a fit case for exercise of extraordinary jurisdiction because no prejudice has been suffered by the petitioner due to violation of principles of natural justice.

However, there is some substance in the plea of the learned counsel that sufficient time should be given to the petitioner to shift the school. Learned counsel for the respondents could not deny that the petitioner cannot shift the school over night without putting the education of about 300 students in jeopardy. Keeping in view the peculiar facts of this case, we consider appropriate to give six months time to the petitioner to vacate the disputed premises i.e. on or before 9.10.1997 and hand over its vacant possession to the competent person. The petitioner should furnish an undertaking in writing before the Estate Officer within six weeks that it would hand over vacant possession of the site on or before 9.10.1997. At the same time, we make it clear that in case the petitioner fails to abide by the undertaking given in compliance of this order or it creates any obstruction in the handing over of the vacant possession of the property then the respondents shall bring this fact to the notice of the Court by making an appropriate application so that proper direction can be given by the Court including a direction for initiation of the proceedings under the Contempt of Courts Act, 1971.

With the above direction, the writ petition is disposed of.