Taranjot Kaur vs Advisor to The Administrator, UT, Chandigarh and Others

Hemant Gupta, J.—Challenge in the present petition is the resumption order dated 14.12.1982 (Annexure P-1) of a residential House No. 215, Sector 16-A, Chandigarh; order in appeal dated 3.10.1989 (Annexure P-15) passed by the Chief Administrator and the order in revision filed by the Adviser to the Administrator, Chandigarh Administration on 8.7.1992 (Annexure P-17), whereby the order of resumption passed by the Estate Officer was maintained in appeal and revision. The proceedings for resumption of the building was initiated with the issuance of the show cause notice under Section 8-A of the Capital of Punjab (Development and Regulation) Act, 1952 (for short ''the Act'') in April 1979 for the reason that a guest house under the name and style of ''Jullundhar Holiday Inn'' is being run from the residential house. Such notice was issued to Shri Hardial Singh Sekhon-father of the petitioner as owner of the site. Many notices have been sent to the site in question whereas the father of the petitioner was posted as Superintendent of Police, Hoshiarpur, the address available in the record with the Estate Office. The resumption order was passed on 14.12.1982 after notice dated 3.12.1982 was presumed to be delivered to the petitioner. The house was vacated by Shri Surinder Singh, the proprietor of ''Jullundhar Hotel Inn'' who subsequently changed the name of guest house to Raja Tourist Lodge''. Thereafter the house was let out to Shri Jagdish Singh Sekhon w.e.f. 1.7.1985 who started residing in the house. Parts of the house were let out to other tenants as well. Even after resumption, no proceedings were initiated to take over the possession of the property in question for a considerable period.

It was on 3.11.1987 a notice under Section 4 of the Public Premises (Eviction of unauthorized occupants) Act, 1971 (for short ''Act 1971'') was issued to Shri Surinder Singh and Shri Harinder Singh Sekhon. Such notice was received by Shri Jagdish Singh Sekhon, the tenant inducted by the father of petitioner. Such tenant filed reply on 26.11.1987. On 3.12.1987, an order of eviction was passed against Shri Jagdish Singh Sekhon and all other occupants. An appeal was filed by Shri Jagdish Singh Sekhon before the learned District Judge, which was dismissed on 13.4.1989. Subsequently, the possession of the premises was taken by the Chandigarh Administration on 15.4.1989.

Another fact which needs to be noticed is that Shri Hardial Singh Sekhon died on 8.6.1986 i.e. prior to the proceedings initiated under he Act 1971 He has executed a Will dated 21.5.1986, a copy of which has been attached as Annexure P-2. By virtue of the said Will, the property in question stands bequeathed to the petitioner who was minor aged 13 years having born on 16.9.1973 at the time of death of her father. The de ceased had appointed his wife Mrs. Gurdip Kaur Sekhon and mother of the present petitioner as his executrix.

The petitioner filed an application before the Chief Administrator for setting aside of the order of resumption. Such application was filed through her grandmother acting as her guardian. Such application and/or appeal was dismissed being barred by limitation on 25.4.1989. Thereafter an appeal filed by mother in terms of the Will was taken up and dismissed on 3.10.1989, inter alia, holding as under:-

''(i) The appellant Shrimati Gurdip Kaur Sekhon has no legal right to agitate the order of resumption by way of an appeal under Section 10 of the Capital of Punjab (Development and Regulation) Act, 1952, she being not an aggrieved person within the meaning of sub-section (1) of Section 10 of the aforesaid Act.

(ii) The appeal preferred by Shrimati Gurdip Kaur Sekhon is not competent because she has no legal right to contest the legal validity of the order of resumption.

(iii) The appeal being badly time barred and the appellant having not been prevented by a sufficient cause for filing the appeal within the period of limitation, the delay in filing the appeal cannot be condoned.

(iv) The order of resumption having been passed by the Estate Officer after following the due process of law laid down in Section 8-A of the aforesaid Act, the order of resumption is legally valid.''

A revision was filed by the mother of the petitioner before the Adviser to the Administrator. Petitioner filed an application to pursue the revision petition as well in her own right (Annexure P-16). The revision was taken up by the Adviser but the same was dismissed on 8.7.1992, inter alia, on the ground that Ms. Taranjot Kaur was not competent to file an appeal before the Chief Administrator nor before it and that she is not a legatee of Shri Hardial Singh Sekhon. Therefore, her application to challenge the order of resumption was also found to be untenable. It was found that the petitioner has no right in the property, the same having been resumed on 14.12.1982, therefore, the same could not be bequeathed by Will. Though, a further review was filed but the same was also declined on 27.6.1997 (Annexure P-19). It is thereafter the petitioner approached this Court in a writ petition.

In the reply, on behalf of respondents, it is asserted that the petitioner is claiming to be the owner of the property on the basis of the Will executed in her favour by late Shri Hardial Singh Sekhon but on the other hand, mother of Shri Hardial Singh Sekhon, Smt. Kartar Sekhon is also claiming ownership of the property. The dispute regarding the estate of the deceased owner is pending in LPA No. 646 of 1989, Kartar Kaur v. Gurdeep Kaur Sekhon. Therefore, the petitioner cannot be said to be have any locus standi to claim herself to be the owner of the property. It was also pointed out that many notices were issued under the registered post and through process server but since none appeared on behalf of Shri Hardial Singh Sekhon, the order of resumption was passed in respect of the property in question and that the house is in possession of the Administration since 15.4.1989.

Learned counsel for the petitioner pointed out that the issue regarding the estate of Shri Hardial Singh Sekhon stands settled in LPA No. 646 of 1989 decided on 3.7.2009 wherein the Will executed by Shri Hardial Singh Sekhon dated 21.5.1986 and Codicil dated 18.6.1986 was proved to be executed by him. By virtue of the said Will, the petitioner is owner and the legatee of the house in question owned by Shri Hardial Singh Sekhon.

Learned counsel for the petitioner has vehemently argued that the order of resumption is liable to, be set aside on the ground that no notice was served upon the petitioner which is mandatory before resumption of site. The reliance is on the Full Bench judgment of this Court reported as Brij Mohan Vs. The Chief Administrator, Union Territory, Chandigarh and Others, . It has been held that notice to the owner is mandatory before the resumption proceedings are initiated. The Court observed as under:-

"19. The proposed order of resumption has dual consequences: (i) the depriving of ownership, right in the site or building which concerns or .. the owner of the site or building; and (ii) the deprivation of the lessee of his lawful possession thereof. Such being the consequences of the order of resumption, both lessee and his lessor would be affected by the order and would thus-be entitled to be heard before such at order is passed."

A Full Bench of this Court in Dheera Singh Vs. UT Chandigarh Admn. and others, has held that while taking into consideration subsequent events, if the misuse has been stopped, then order of resumption has to be set aside. It was observed as under: -

''(84)..............The powers enjoyed upon by the appellate authority are thus vast, wide and expansive enough to re-appraise the evidence led under Section 8-A, to take notice of the subsequent events, if any, and form an independent view on the sustainability of the resumption order. The wings of its power must always prompt the appellate authority and it shall be so obligated to reverse the resumption order no sooner does it find that during the pendency of the resumption or appellate proceedings, the very basis to initiate such proceedings within the mischief of Section 8-A(1) has completely disappeared. In other words, it cannot be said that even if the ground of resumption is nonexistent yet the appellate authority would have a discretion to "confirm" the order of resumption and dismiss the appeal. Such a misconstruction of Section 10(2) of the Act would lead to arbitrary and discriminatory consequences against the very ethos of Article 14 of the Constitution.''

It is also argued that since, the purpose of resumption is to ensure the compliance of the statutory rules in respect of the user and construction, therefore, once the misuse has been stopped, the order of resumption cannot be used to be deprive a owner of his property. It is contended that in the year 1986, the petitioner was minor, therefore, her rights could not be jeopardize only for the reason that the appeal was preferred after delay but during the period of her minority.

Similar issue in respect of power and scope of resumption proceedings as are raised in the present writ petition have been dealt with in another writ petition (CWP No. 7994 of 2013 Jaspreet Kaur v. UT of Chandigarh and Ors.) decided today vide a separate order. The reasons recorded therein be read as reasons for the purpose of the present petition as well.

The misuse has stopped when the same was let out to Shri Jagjit Singh Sekhon on 1.7.1985 much before the possession was taken by the Administration on 15.4.1989. Therefore, the possession of the house should not have been taken by respondents only for the reason that the order of resumption has attained finality. We find that depriving the petitioner of her rightful possession of the property is unfair and unjust. Consequently the orders dated 14.12.1982 (Annexure P-1); 3.10.1989 (Annexure P-15) and 8.7.1992 (Annexure P-17) are set aside. We order that the petitioner be delivered the possession of the property in question forthwith.

Disposed of with the above directions.