Simarjet Kaur vs Chandigarh Administration through its Administrator

G.S. Singhvi, J.—Residential site No. 541, Sector 18, Chandigarh was allotted to the mother of Smt. Simarjot Kaur by the Chandigarh Administration in the year 1952. After constructing the building, the transferee leased it out to St. Peter''s School through Sq. Ldr. S.S. Khannar its managing trustee. Proceedings under Section 8A of the Capital of Punjab (Development and Regulation) Act, 1952 as amended by the Chandigarh Amendment Act No. 17 of 1973 (hereinafter referred to as ''the Act'') for resumption of the site were initiated by the Assistant Estate Officer, exercising the powers of the Estate Officer, Union Territory, Chandigarh on the ground of breach of the conditions of sale. In the notice dated 9.11.1987 issued by the Assistant Estate Officer, it was mentioned that the premises were not being used for residential purpose in accordance with the terms of conveyance deed/allotment letter but was being used for running a school. Neither Smt. Simarjot Kaur (who had by then became the owner of the property as her mother''s heir) nor the tenants, who were served with the notices, contested the same. The Assistant Estate Officer ordered the resumption of the site on 7.12.1987 on the ground of wilful default. The appeal and the revision petition filed by Smt. Simarjot Kaur were dismissed by the Chief Administrator and the Advisor to the Administrator, Union Territory, Chandigarh respectively.

Feeling aggrieved by the order of resumption passed by the Assistant Estate Officer as well as the appellate and the revisional orders passed by the Chief Administrator and the Advisor to the Administrator, Smt. Simarjot Kaur filed this petition on 3.9.1992 for quashing the impugned orders mainly on the ground that the transferee cannot be penalised for the wrongful act of the tenant.

The respondents No. 1 and 2 as well as the respondent No. 4 have filed written statements opposing the petitioner''s prayer for quashing the impugned orders.

The record produced by the counsel for the respondents and the photostat copies of various orders/judgments produced by the counsel for the petitioners show that about 4 years prior to the filing of this petition, Smt. Simarjot Kaur had filed a petition under Section 13 of the East Punjab Urban Rent Restriction Act, 1949 for ejectment of the tenants which was dismissed by the Rent Controller on 18.10.1993. The appeal preferred by her was allowed by the Appellate Authority on 12.6.1996. However, by taking note of the fact that Civil Writ Petition No. 2173 of 1990 filed by the tenants questioning the legality of the order of resumption passed by the Assistant Estate Officer was pending before the High Court and their ejectment had been stayed, the Appellate Authority directed that its judgment would remain stayed and would be subject to the decision of the said writ petition by the Hon''ble High Court. This part of the appellate order was set aside by the learned Single Judge on 17.12.1996 while deciding Civil Revision Nos. 4094 and 4301 of 1996 filed by the landlord and the tenants respectively. Aggrieved by the order of the learned Single Judge, the tenants filed Petitions for Special Leave to Appeal No. 2528225283 of 1996 which were disposed of by the Hon''ble Supreme Court permitting them to continue in the premises till 30.4.1998.

Before proceeding further, we may mention that during the pendency of this petition filed by Smt. Simarjot Kaur, the present petitioners filed Civil Miscellaneous Application No. 7941 of 1997 under Order 22 Rule 10 read with Section 151 of the Code of Civil Procedure for their substitution as the petitioners on the ground that they had purchased the house through registered sale deed dated 27.1.1995. That application was allowed by the learned Single Judge on 6.5.1997. Similarly, in the proceedings initiated by Smt. Simarjot Kaur under the East Punjab Urban Rent Restriction Act, 1949, the present petitioners were impleaded as parties (appellants) during the pendency of Rent Appeal No. 359 of 1993. They were also parties in Civil Revision No. 4094 of 1996 and Petitions for Special Leave to Appeal No. 2528225283 of 1996 S.S. Khanna and another v. Smt. Simarjot Kaur and others, which were disposed of by the Hon''ble Supreme Court on 17.2.1997. They were also impleaded as party respondents in place of Smt. Simarjot Kaur in Civil Writ Petition No. 2173 of 1990 St. Peter''s School and another v. The Advisor to the Administrator, Union Territory, Chandigarh and others.

Having set out the facts and taken note of the related developments, we shall now consider the petitioners'' challenge to the order of resumption. But before doing that, we deem it proper to observe that during the course of hearing, Shri A.M. Punchhi made a statement that the possession of the premises was handed over by the tenants on 10.6.1997 and the same is being used by the present petitioners as their residence. He further stated that the tenants did not file undertaking in accordance with the order of the Apex Court but during the pendency of the execution application filed by the landlord, vacant possession of the site was handed over to the petitioners.

Learned counsel for the petitioners argued that the order of resumption and the appellate as well as the revisional orders should be quashed because the ground on which the site was resumed, namely, misuse of the residential premises for school purposes no longer survives. He submitted that the mis use of premises by the tenants should not be made basis for penalising the owner of the site/building. He then argued that the provision for resumption of the site on the ground of misuse or breach of the conditions of sale are not mandatory and, therefore, the petitioners should not be burdened with the liability of seeking retransfer under Rule 11D of the Chandigarh (Sale of Sites and Buildings) Rules, 1960 (hereinafter referred to as ''the Rules''). Shri Ashok Aggarwal relied on the order dated 17.2.1997 passed by the Supreme Court and argued that the present petitioners who have purchased the property after more than 7 years of the passing of order of resumption and more than 5 years after the dismissal of the Revision Petition filed by Smt. Simarjot Kaur under Section 10 of the Act, cannot claim better rights than those available to Smt. Simarjot Kaur. Shri Aggarwal submitted that Smt. Simarjot Kaur as well as the petitioners are bound by the order dated 17.2.1997 passed by the Supreme Court and, therefore, the present petitioners cannot retain possession of the site except by seeking retransfer under Rule 11D of the Rules. Learned counsel further submitted that the concurrent findings recorded by the Assistant Estate Officer, the Chief Administrator and the Advisor to the Administrator do not suffer from any patent error of law justifying interference by the High Court.

We have thoughtfully considered the respective submissions. In our opinion, the impugned orders passed by the Assistant Estate Officer, the appellate and the revisional authorities do not deserve invalidation on the ground of lack of jurisdiction or any error of law apparent on the face of the record. Admittedly, the site in question was transferred to the mother of Smt. Simarjot Kaur for residential purposes and after constructing the building, she leased it out to the respondent No. 4. The premises were resumed by the Estate Officer because the tenant to whom the same were let out, was found running school in residential premises. Therefore, neither the finding recorded by the Assistant Estate Officer that there had been a breach of condition of sale nor the order of resumption passed by him, in exercise of the power vested in him under Section 8A of the Act as a delegate of the competent authority, can be termed as erroneous. The appellate and the revisional authorities have affirmed the finding and the conclusion recorded by the Assistant Estate Officer and the orders passed by them too do not suffer from any error apparent on the face of the record.

The argument of Shri Punchhi that the landlord cannot be penalised for the unlawful action of the tenants deserves to be rejected for the following reasons :

(i) The Chandigarh Administration had transferred the site to the purchaser subject to the condition that the same will be used only for residential purposes. Therefore, the transferee was responsible to observe the conditions of sale of which the provisions of the Act and the Rules framed thereunder constituted integral part. The transferee and her successors and assignees cannot plead innocence simply by saying that the tenants had mis used the premises. In our opinion, the transferee and her successors have been rightly held liable for the wrong done by their tenants.

(ii) The person who purchased the property knowing that it had been resumed 7 years earlier cannot complain against the order of resumption. The stay order passed in this petition did not have the effect of obliterating the order of resumption as well as the appellate and the revisional orders.

(iii) Smt. Simarjot Kaur as well as the present petitioners were party respondents in the appeal which was decided by the Appellate Authority, Chandigarh on 12.6.1996, Civil Revision Nos. 4094 and 4301 of 1996 decided by the learned Single Judge on 17.12.1996, Petitions for Special Leave to Appeal No. 2528225283 of 1992 decided by the Supreme Court on 17.12.1997 and C.W.P. No. 2173 of 1990 disposed of by the learned Single Judge on 10.4.1997. Therefore, they are bound by the order dated 17.2.1997, passed by the Hon''ble Supreme Court in the SLPs filed by the tenants in which their Lordships unequivocally observed that the respondents can take necessary steps to move the concerned authorities under Rule 11D of the Rules for reallotment. That order reads as under :

"We have heard Shri R.P. Nariman, learned senior counsel for the petitioners and Shri K. Parasaran, learned senior counsel for the respondents. We have also perused the High Court judgment as well as the record. We do not find any ground to interfere with the impugned judgment of the High Court. The petitioners are granted time to hand over the vacant possession of the premises to the respondents by 30th April, 1998, subject to their furnishing the usual undertaking within a period of four weeks. It is, however, made clear that in view of the findings recorded by the High Court in the impugned judgment that respondent No. 2 had let out the premises for residential purposes which finding has not been disputed by this Court, it will be open to the respondents to take necessary steps to move the concerned authorities under Rule 11(D) of the Chandigarh Urban Development Laws Rules, 1960 for re allotment. If such an application is made that fact that the petitioners are being allowed to continue in the premises till 30th April, 1998 under this order will not stand in the way with the competent authority dealing with the said application on its merits. The SLP is disposed of accordingly."

The petitioners, who were parties before the Supreme Court, did not seek review of the order dated 17.2.1997 by contending that their writ petition was pending before the High Court. Therefore, they cannot now plead that this Court should make an order contrary to the one passed by the Apex Court. In other words, they are estopped from seeking invalidation of the order of resumption passed by the Assistant Estate Officer and the only course open to them is to seek retransfer of the property under Rule 11D of the Rules.

Even while deciding Civil Writ Petition No. 2173 of 1990 St. Peters School and another v. The Advisor to the Administrator, Union Territory, Chandigarh and others, the learned Single Judge took notice of the order passed by the Supreme Court and declined relief to the petitioners.

For the reasons mentioned above, we hold that the order of resumption passed by the Assistant Estate Officer and the dismissal of the appeal and the revision petition filed by Smt. Simarjot Kaur (predecessor ininterest of the present petitioners) do not suffer from any error of law warranting interference by the High Court.

In the result, while declining interference with the impugned orders, we dispose of the writ petition with the direction that the petitioners may make application for reallotment of the site within 6 weeks which shall be accepted by the competent authority within next 6 weeks in view of the order of the Apex Court, subject to the payment of the amount which may be found due by the competent authority.