Gurdev Singh vs Chandigarh Administration and Others

G.S. Singhvi, J.—Plot No. 279, (Phase-I), Industrial Area, Chandigarh was allotted to M/s Dharam Raj Ram Prakash of Pump Motor Workshop, Mani Majra on the terms and conditions incorporated in the letter of allotments dated 8.3.1967. After payment of full price by the allottee, deed of conveyance dated 1.7.1970 was executed in its favour by the Chandigarh Administration. In the meantime, the allottees executed a deed of mortgage and also a general power of attorney in favour of the petitioner. The possession of the plot was also transferred to the petitioner, after which he took steps for construction of building. On 21.1.1983, the allottees, executed a registered sale deed in favour of the petitioner. However, his request for transfer of plot in his name and for issuance of revised letter of allotment was turned down by the Estate Officer on the ground that the plot in question has already been resumed.

Perusal of the record shows that proceedings for resumption of the plot in question were initiated by the Assistant Estate Officer on the ground of violation of Rule 5 of the Punjab Capital (Development and Regulation) Building Rules, 1952. Vide order dated 27.12.1983, he directed resumption of the plot and forfeiture of 10% of the consideration money. The appeal filed by the present petitioner was dismissed by the Chief Administrator, Union Territory, Chandigarh on the ground of delay and also on the ground that he cannot be treated as an aggrieved person. The revision petition filed by him was also dismissed by the Adviser to the Administrator on 15.11.199 on similar grounds. These orders were challenged by the petitioner in Civil Writ Petition No. 8836 of 1992. In the written statement filed on behalf of the respondents, an objection was raised to the maintainability of the writ petition on the ground that his application for transfer stands rejected. That petition was disposed of by the High Court on 14.5.1993 with the following order:-

"After hearing the learned counsel for the parties and having gone through the report of the Local Commissioner dated Jan. 27, 1993, we allow this writ petition and quash the impugned orders dated 7.6.1983, 24.12.1990 and 15.11.1991 (Annexure P-2, P-3 and P-5 respectively with the writ petition.) Since the violation of building rules applicable in Chandigarh, as pointed out by the Local Commissioner happens to be a minor one, the petitioner is directed to deposit an amount of Rs. 500/- with the Estate Officer, Chandigarh within one week; on the deposit there of the offence shall stand compounded.

Sd/- M.R. Agnihotri.

Sd/- H.S. Brar,

Judges"

May 14, 1993

Immediately thereafter, the petitioner submitted application Annexure P-9 dated 31.5.1993 for transfer of the plot in his name but he failed to persuade the Estate Officer to accept his request. Instead, the Assistant Estate Officer issued notice dated 13.7.1993 requiring M/s Dharam Raj Ram Prakash and the petitioner to show cause as to why the plot be not resumed on the ground of breach of the terms and conditions of allotment and deed of conveyance. The allegation enumerated in the notice was that the transfer of plot by the allottee before expiry of the restricted period of 5 years from the date of completion of building is violative of the terms of allotment. The petitioner contested the notice and urged that there was no valid reason for resumption of the site, particularly, when the High court had already set aside the previous order of resumption. The Assistant Estate Officer did not accept this submission. He again resumed the site vide order dated 15.9.1993. The appeal and the revision filed by the petitioner have been dismissed by the Chief Administrator and the Advisor to the Administrator respectively.

In the background of these facts, it is to be decided whether the orders dated 15.9.1993, 15.11.1994 and 11.12.1996, the legality of which has been challenged in this petition deserve to be quashed.

Shri R.L Gupta raised the plea of estoppel and argued that in view of the order dated May 14, 1993 passed in C.W.P. No. 8836 of 1992, Gurdev Singh v. Chandigarh Administration quashing the orders of resumption as well as the appellate and the revisional orders passed by the concerned authorities, the Assistant Estate Officer did not have the jurisdiction to initiate fresh proceedings for resumption of the site on a ground which was available to him at the time of initiation of previous proceedings. He argued that failure of the concerned authorities to take cognizance of the allottee''s action to mortgage the plot in question to the petitioner and to transfer possession thereof to the latter should be treated as an act of condoning the breach of the terms of allotment. Learned counsel submitted that the objection raised by the respondents to the locus standi of the petitioner to seek invalidation of the resumption proceedings should be deemed to have been rejected by the Court and, therefore, the respondents cannot order resumption of the plot on the ground of alleged violation of the conditions of allotment. Shri Ashok Aggarwal, senior counsel appearing for the respondents argued that quashing of the resumption order in the previous petition can not operate as an estoppel against the initiation of fresh proceedings for resumption on the other grounds available to the administration. He argued that in view of the condition Nos.9 and 9-A of the letter of allotment and 9-A of the deed of conveyance, the allottee could not have transferred site or any right, title or interest therein for a period of five years and, therefore, its action of executing mortgage and handing over possession of the property to the petitioner in the year 1970 constituted a valid ground for ordering the resumption of the site.

We have thoughtfully considered the respective submissions and have carefully perused the record. A look at the letter Annexure P-6 written by the Estate Officer, Chandigarh to the petitioner shows that the latter''s request for transfer of the plot was turned down by the administration only on the ground that the site has already been resumed and not on the ground that the allottee had violated condition Nos.9 and 9-A of the letter of allotment and 9-A of the deed of conveyance and admittedly, the order of resumption passed by the Assistant Estate Officer has been quashed by this Court while accepting C.W.P. No. 8836 of 1992, Gurdev Singh v. Chandigarh Administration. In view of this, it was imperative for the respondents to have reconsidered the petitioner''s request for transfer of the plot in his favour keeping in view the fact that the objection raised by them in the written statement to the locus standi of the petitioner did not find favour with the Court. Shri Aggarwal made an attempt to persuade us to hold that in the absence of express rejection of the plea set up by the respondents to the standing of the petitioner, the same must be deemed to have been left open for consideration in future. However, we are unable to agree with him and hold that the said plea will be deemed to have been rejected by the Court. If the respondents thought that the order passed by the Court on 14.5.1993 was legally incorrect, due to non-consideration of the objection raised by them to the maintainability of the writ petition then they should have challenged the same by filing petition, for Special Leave to Appeal in the Supreme Court. Admittedly, that has not been done. Therefore, it is no longer open to the respondents to contend that they have the right to challenge locus standi of the petitioner to seek transfer of the plot on the ground of alleged violation of the conditions of allotment and the deed of conveyance.

There is considerable merit in the submission of the learned counsel that the so-called violation of the terms and conditions of allotment and the deed of conveyance should be treated as condoned because while initiating action for resumption of site in the year 1982-83 the alleged wrongful transfer of site was in the knowledge of the respondents and yet they did not take cognizance of the same.

Shri Gupta is also right in his submission that the Assistant Estate Officer as well as the appellate and revisional authorities have decided the issue of alleged violation of the conditions of allotment without properly appreciating the fact that the sale deed was executed more than 10 years after the completion of the building and there could be no legal impediment in sanctioning the transfer of the plot in favour of the petitioner subject to his fulfilling the conditions enumerated in the rules and also that almost 13 years ago, they had entertained the application submitted by the petitioner in respect of the plot in question and further that he has been running the industry for last over two decades.

For the reasons mentioned above, the writ petition is allowed. Orders Annexures P.6, P.10, P.11 and P.12 are quashed with the direction that the respondents shall consider the petitioner''s application for transfer of the plot afresh and pass appropriate order within three months in accordance with the relevant rules. In case the petitioner''s application for transfer is again rejected, he shall be free to avail appropriate legal remedy.