Sant Singh vs Union Territory Chandigarh

G.S. Singhvi, J.—This petition was listed for arguments on 8.9.1998 and 9.9.1998. No one appeared on behalf of the petitioner on either of these dates and after hearing the learned counsel for the respondents, we had dismissed the petition on 9.9.1998. However, by an order passed on 7.12.1998 in C.M. No. 27490 of 1998 filed by the petitioner, the order dismissing the writ petition was recalled. Arguments in the main case were again heard on that very day and the case was adjourned for today in order to enable the petitioner to file an undertaking to make payment of the dues as assessed by the competent authority. Shri S.S. Shergil has filed an undertaking of the petitioner. The same is taken on record.

The averments made in the writ petition and the written statement show that proceedings u/s 8-A of the Capital of Punjab (Development and Regulation) Act, 1952 were initiated against the petitioner on the allegation of misuse of residential premises allotted to him. After hearing the petitioner and the Principal of the School which was in occupation of the residential premises, the Assistant Estate Officer, exercising the powers of the Estate Officer, Union Territory, Chandigarh passed order dated 28.9.1990 for resumption of the site and forfeiture of 10% of the price plus interest. The appeal and the revision petition filed by the petitioner were dismissed by the Chief Administrator and the Advisor to the Administrator, Union Territory, Chandigarh vide their orders dated 6.11.1990 and 26.6.1991. Thereafter, the Land Acquisition Officer, exercising the powers of the Estate Officer under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 ordered the petitioner''s ejectment from the premises in question. These orders were challenged by the petitioner in civil writ petition No. 12355 of 1991 which was dismissed by the Division Bench on 14.8.1991. The order reads as under:

"Brief facts of the case are that petitioner No. 1 was allotted plot No. 43-C(517) in Sector 20-A, Chandigarh, on which he constructed a 2-1/2 storyed building in 1956. Since 1975, the ground floor is being used as SAS Model Middle School run by a registered society. The said school through its Principal Shri Kanwal Jit Bhatia is petitioner No. 2. The school is recognised by the Education Department of Union Territory and about 200 students are studying therein. The Estate Officer passed an order of resumption, Annexure P.5, on September 28, 1989, u/s 8-A of the Capital of Punjab (Development and Regulation) Act, 1952, against the petitioners. The appeal was dismissed by the Chief Administrator by order Annexure P.7, dated November 6, 1990 The revision was dismissed by the Administrator, Union Territory of Chandigarh-cum-Chief Commissioner by order dated June 26, 1991, Annexure P.9. A copy of the order was sent to the District Education Officer not to accord recognition to the school after April 1, 1991. The petitioners were given time upto July 31,1991, to stop the misuser and it was further directed by the Chief Commissioner that if necessary the students studying in the school be admitted in the nearby government school."

Following the order of resumption by the Estate Officer, proceedings were started under the Public Premises (Eviction and Unauthorised Occupants) Act, 1971 and an order of eviction dated December 18, 1990 was passed. The petitioners preferred an appeal to the District Judge in which eviction has been stayed. The appeal is pending.

Further case of the petitioners is that the Chandigarh Administration had taken a decision in 1979 to allot alternative plot to the school as also several other similarly situated schools at the rate of Rs. 15/- per square yard. The actual offer was made in 1981 at the rate of Rs. 60/- per square yard. Petitioner No. 2 applied for allotment. It was learnt that the Administration was thinking of allotting the land at the rate of Rs. 500/- square yard.

The petitioners seek a writ of certiorari for quashing the order of resumption, Annexure P.5, as affirmed in Annexure P.9 and P.10. They further seek a writ of mandamus directing the respondents not to act upon the impugned orders and instead allow petitioner No. 2 to run the school in the residential building in question till case for allotment of the school site is finally decided. It was contended by the learned counsel at the hearing that the petitioner be allowed sufficient time to continue the school in the existing building till plot is allotted by the Administration and construction is made by the petitioner No. 2.

The refrain throughout the petition is that a large number of schools were being run in residential buildings. The Government itself was running offices in residential buildings and the order of resumption was rendered invalid because of individious discrimination. Reliance was placed on certain observations of a Full Bench Judgment of this Court in Shri Ram Puri v. The Chief Commissioner, Chandigarh and Ors. (1982)84 P.L.R. 388, reproduced in the petition itself. According to these observations, it was emphasized that resumption being a drastic remedy should be resorted to only as a last resort. When asked as to what other remedy was open to the Administration, learned counsel conceded that in the facts and circumstances, no other remedy was possible. We are not at all impressed by the facts that there are several other schools being run in residential premises. Action according to law for stoppage of misuser has to start somewhere. It is just not possible that all at once such an action may be initiated against all persons who have converted user of the premises from residential to non-residential. No infirmity could be pointed out in the order of resumption or the orders passed in appeal and revision. Admittedly, the mis-user continues. It is a matter of policy which the Government might take in due course in the interest of students to allot alternative sites. Learned counsel has not been able to show us that the petitioner has a statutory right to be allotted land and at a certain rate. For these reasons, we do not find any substance in the petition. It is dismissed in limine."

It appears that after the dismissal of C.W.P. No. 12355 of 1991, the petitioner pursued the matter with the administrative authorities by filing an application for review before the revisional authority which was rejected on 13.11.1991 and in the guise of challenging that order, the petitioner instituted the present petition for quashing the order of resumption.

Shri Ashok Aggarwal reiterated the objection to the maintainability of the writ petition raised by the respondents in the written statement, namely, that the writ petition is barred by the principle of res judicata. Learned counsel for the petitioner admitted that the earlier petition filed by the petitioner for quashing of the orders impugned in this petition, except the order dated 13.11.1991, was dismissed by this Court and that order has become final. He, however, tried to convince us to entertain the petitioner''s plea on the ground that the misuse of the premises, which prompted the Assistant Estate Officer to pass the order of resumption was discontinued on 16.8.1991. Shri Shergill invited our attention to the averments made in paragraph 16 of the writ petition and its reply and submitted that the Court should take compassionate view and pass an appropriate order for restoration of site to the petitioner.

The submission of the learned counsel for the petitioner appears attractive but it cannot stand scrutiny. Perusal of the record shows that C.W.P. No. 12355 of 1991 was dismissed by a speaking order. The contentions urged on behalf of the petitioner to challenge the legality of the order of resumption as well as the orders passed by the appellate and the revisional authorities were considered and found untenable. The petitioner could challenge the dismissal of -his writ petition by filing Petition for Special Leave to Appeal under Article 136 of the Constitution. Admittedly, he did not adopt that course. Therefore, the order dated 14.8.1991 passed by this Court dismissing his earlier petition must be treated as final and the petitioner cannot be permitted to invoke writ jurisdiction of this Court for quashing of those orders which were unsuccessfully challenged in the earlier petition. The fact that in this petition he has also challenged the order passed by the revisional authority on 13.11.1991 rejecting his review application cannot be made basis for entertaining the petitioner''s prayer to quash the order of resumption.

On the basis of above discussion, we hold that the petition is barred by the principles of res judicata.

Notwithstanding the afore-mentioned conclusion, in the peculiar facts of this case, we are felt persuaded to accept the submission of Shri Shergil that even if the resumption of the site is upheld, the Court may direct the competent authority to entertain the petitioner''s request for retransfer of the site under Rule 11-D of the Chandigarh (Sale of Site and Buildings) Rules, 1960. Learned counsel for the respondents has not disputed the fact that the misuse of the premises had been stopped on 16.8.1991 i.e. even before the filing of this petition and for a period of more than 8 years calculated from the date of passing of order of resumption, the possession of the site and building is with the petitioner, which is being used for the purpose for which it was allotted to the petitioner in the year 1956. Therefore, while refusing to entertain the petitioner''s plea for quashing the order of resumption of site passed by the Assistant Estate Officer and the orders passed by the appellate and the revisional authorities dismissing the appeal and the revision petition filed by him and also declining his prayer for quashing the order dated 13.11.1991 passed by the Advisor to the Administrator, Union Territory, Chandigarh rejecting the petitioner''s review application but keeping in view the undertaking filed by him, we dispose of the writ petition with the following directions:-

(i) Within 15 days from today, the petitioner shall submit an application to the competent authority for retransfer of the property in terms of Rule 11-D of the Chandigarh (Sale of Sites and Buildings) Rules, 1960.

(ii) The competent authority shall dispose of the application within 3 months and intimate to the petitioner the amount required to be deposited for retransfer of the property in terms of Rule 11-D.

(iii) The petitioner shall pay the amount assessed by the competent authority within next one month.

If the petitioner makes payment of the amount assessed by the competent authority, the order of resumption as well as the orders passed by the appellate and the revisional authorities shall stand revived automatically and the petitioner shall become liable to be dispossessed. In that event, he shall not be entitled to claim compensation or damages from the respondents.

Copy of the order to be given Dasti to the learned counsel for the parties by the Bench Secretary after due attestation under her signatures.