Rubin Mills vs Union Territory Administration and Others

R.L. Anand, J.—By this order I will dispose of Civil Writ Petition No. 14137 of 1990 filed by M/s Rubin Mills, 181/38 Industrial Area, Chandigarh against the Union Territory, Chandigarh and the Civil Miscellaneous No. 17717 of 1999, which has been filed in the said writ petition.

Some facts can be noticed in the following manner. An industrial plot bearing No. 181/38 was allotted in the name of Shri Avtar Singh who was the sole proprietor of M/s Rubin Mills, on 17.9.1975.

As per the case of the respondent the said plot was resumed by the authorities on 6.11.1978 for want of non-construction. Aggrieved by the said order the allottee filed a statutory appeal and it was brought to the notice of the appellate authority that the plot had already been constructed and in these circumstances the plea taken by the department regarding the non-construction of the plot is not tenable. The order dated 6.11.1978 was set aside by the appellate authority with the observations that the allottee will get the occupation certificate by 15.10.1980 after removing the minor violations in the shape of unauthorised construction as pointed out by the Department.

Unfortunately, Shri Avtar Singh, the sole proprietor of the petitioner expired on 28.10.1980 as a result of which the objections of the Department could not be removed. A revision was filed before the Chief Commissioner, U.T. Chandigarh and vide order dated 31.1.1985 it was disposed of with the directions that the legal representatives of Shri Avtar Singh shall remove the unauthorised constructions and also apply for completion certificate within three months. Subsequently, the legal heirs of the allottee submitted revised plan Ex.P-4, on 25.4.1985 within the specified three months which were given to the heirs of the allottee. In spite of the compliance made by the heirs of the allottee the order of resumption was not set aside by the Department. It necessitated the allottee to file a review application, which was dismissed on 19.9.1990 on the ground that it was not maintainable and also that certain violations were still in existence. Hence the writ petition in which quashment of the orders Annexures, P-1 dated 6.11.1978, Annexure P-3 dated 31.1.1985/4.2.1985 and Annexure P-6 dated 19.9.1990 has been sought.

This writ petition came up for hearing at the motion stage before the Hon''ble Division Bench consisting of Hon''ble Justice G.C. Mittal and Hon''ble Mr. Justice S.S. Grewal on 20.1.1991 and the Hon''ble Division Bench passed the following order:

"We shall consider the petitioner''s case after unauthorised constructions are removed. Learned counsel for the petitioner says that the petitioner is prepared to remove the unauthorised constructions within one month. Let an affidavit in this behalf be placed on record after the unauthorised construction are removed."

The interim directions of the Hon''ble Division Bench were complied with by the petitioner by filing an affidavit on 26.3.1991. Being satisfied that the unauthorised constructions had been removed by the allottee or his heirs, the Hon''ble Division Bench vide order dated 24.4.1991 admitted the writ petition and ordered that the stay will continue.

During the pendency of this writ petition Civil Misc. No. 17717 of 1999 was moved with a prayer that the main writ petition may be disposed of in view of the judgment of the Hon''ble Division Bench given in Jagdish Rai and Others Vs. Chandigarh Administration and Others, .

The premise built up by the petitioner-applicant is that un-authorised constructions had already been removed and in this regard the department and authorities were satisfied and therefore, since all possible objections raised by the department have been removed by the petitioner, therefore, the order of resumption with consequential orders may be set aside.

Notice of this application was given to the respondent-Department, which filed the reply.

In para No. 7 of the reply, it has been averred by the Department as follows:-

"That as already submitted the violations in the building of the petitioner have now been removed. It is, however, submitted here that the petitioner failed to comply with the directions issued by the orders of the Appellate Authority dated 10.9.1981 and that of the Revisional Authority as contained in the order dated 31.01.1985 inasmuch as neither the building violations were removed nor occupation certificate was obtained within the time stipulated in the orders of these authorities."

In short, the department still persists with the whole objections which were taken by the Department before the appellate as well as the revisional authority.

I have heard Shri P.S. Patwalia, Advocate, for the petitioner and Shri Ashok Aggarwal, Senior Advocate with Shri Subhash Goel, Advocate, for the Union Territory, Chandigarh and with their assistance have gone through the record of this case.

Resumptions are sensitive matters. It affects the rights of an allottee who wants to raise construction after saving and spending his valuable income over the allotted area. When the Department imposes the condition upon the allottee that he would raise the construction within a specified time or according to the norms of the Department, it is with some object that the city or the area must be planned in a systematic manner within a reasonable time, and there should not be any presumption which gives an indisputable right to an allottee to raise any type of construction as he likes, which is disadvantageous/inconvenient to the passers by or to the neighbours.

In the present case, it is true that at one point of time there were certain violations on the part of the allottee but it is also true that those violations have now been removed by the allottee. In this view of the matter, it will be in the fairness of things and equity to set aside the order of resumption and the subsequent orders passed by the appellate as well as the revisional authority especially for the reasons that original allottee Shri Avtar Singh, who was the sole proprietor of M/s Rubin Mills, had died. Some miseries might have come in the family of the widow and that may be the reason that the widow of Shri Avtar Singh could not apply within a reasonable time for the removal of those irks. It was pointed out by the department that now everything has gone fine for the department and, therefore, the present writ petition as well as the present application are hereby allowed and the impugned orders Annexure P-1, P-3 and P-6 are set aside.

While passing this order I have also derived support from Balbir Kaur Vs. Union Territory, Chandigarh and others, ; Jagdish Rai and Others Vs. Chandigarh Administration and Others, ; wherein such like matters were considered and equitable view was taken by giving the opportunities to the allottee to remove all the violation etc. as pointed out by the department. Now the petitioner shall apply for occupation certificate within two months from today and on receipt of the same, the department shall pass an appropriate order within two months from the receipt of the application. There shall be no order as to costs in the main petition. Petition allowed.

It has been stated at the bar by the learned counsel for the petitioner that on his oral request order Annexure P-2 dated 10.9.1980 may also be set aside as this is consequent to the order Annexure P-1. There is merit in the prayer made by the learned counsel for the petitioner. When the foundation goes the building is bound to crumble. I order accordingly.