Ved Parkash vs The Chief Commissioner and others

C.G. Suri, J.—This writ petition has been filed under Article 226 of the Constitution of India to call in question the resumption of a plot in Chandigarh by the Chief Commissioner and Officers of the Chandigarh Capital Administration respondents Nos. 1 to 3, in exercise of their powers u/s 9 of the Capital of Punjab (Development and Regulation) Act, 1952 for non-compliance by the plot-holder with Rule 12 of Chandigarh (Sale of Sites) Rules, 1960. The plot-holder had failed to build upon the site within the stipulated period of five years or the periods which had been extended from time to time. Site No. 73, in the Grain Market of Chandigarh was allotted on June 6, 1955 to the petitioner''s father, Shri Panna Lal (since deceased). Shri Panna Lal deposited the purchase price in instalments and there is no dispute on that score. It was one of the conditions of sale that the plot was to be built upon within a period of five years or within such period as was to be extended by the respondents from time to time. The plot continues to by vacant to the present day and various reasons as given by the petitioner and his father were, the non-sanction of the loan within time, the non availability and high prices of the building materials, calamities or deaths in the family and there being a big depression on the site etc. The Estate Officer, respondent No. 3, had resumed the plot and had forfeited the price by his order dated July, 7, 1965 (Annexure B) after serving a show cause notice dated May 18, 1965 (Annexure A). Shri Panna Lal had filed an appeal against this order but he died before it could be disposed of. The petitioner informed the respondents on 7th May, 1966 that his father had died and that he and his mother were the heirs of the deceased. A lenient view was taken while disposing of that appeal and the order of resumption of the plot passed by respondent No. 3 on 7th July, 1965 was set aside subject to the condition that the building was completed all respects up to 31st March, 1967. Out of the sale price a sum of Rs. 200/- only was forfeited and the balance was ordered to re-credited to the account of the plot holder While disposing of this appeal the Chief Administrator of the Capital Project, respondent No. 2, directed that the Estate Officer will take necessary steps for the transfer of the plot to the heirs of the deceased.

The petitioner does not appear to have taken any prompt steps for the commencement of the construction work or the completion of the building until 1st March, 1967. It may also appear that the Estate Officer had to write to him on 3rd February, 1967 that he should complete necessary formalities for the transfer of ownership of the plot in the names of the lawful heirs of the deceased. No steps are, however, shown to have been taken for the substitution of the names of the lawful heirs of the deceased in the respondents records and only the plans were submitted in the beginning of March, l967 when there was hardly enough time left for the completion of the proposed building. The plans were, therefore, returned by respondent No. 3 with his letter dated 27th April, 1967 (Annexure I) and the request was repeated that necessary documents to enable the office to proceed further in the matter of transfer of proprietary rights in the name of legal heirs may be furnished by the petitioner. This was given as a reason for the return of the plans of the proposed building.

A revision petition filed by the petitioner was disposed of by respondent No. 1, on 24th May, 1968. The plea that the Estate Officer was bound to fill up the depression on the plot or that the petitioner''s financial position had become weak did not succeed and it was observed that there was no other choice but to resume the plot. A sympathetic view was, however, taken by respondent No. 1 and the price paid by the plot-holder was ordered to be refunded to his lawful heirs but the order for the resumption of the plot was made absolute.

A similar Writ Petition No. C.W. 2078 of 1968, filed earlier by the petitioner, challenging the orders of resumption of this plot, has already been dismissed in limine by this Court on 30th June, 1968. A preliminary objection has been taken by the respondents that the present writ petition does not lie, The learned counsel for the petitioner, Shri Nehra, relying on Darao v. The State of U.P. 1962 (1) S.L.R. 574, has argued that the order of dismissal of the previous writ petition in limine was not a speaking order and that it does not create any bar of res judicate. It has, however, been observed by the Hon''ble Judges of the Supreme Court in this ruling that where the writ petition is dismissed in limine and an order is pronounced, whether or not such dismissal is a bar must depend on the nature of the order. It may be that such an order of dismissal of a petition in limine does not operate as res judicata but that would not imply that a person can go on filing frivolous writ petitions ad infinitum on the same facts until a writ petition has been admitted As long as the matters agitated in the earlier writ petition were the same the order dismissing it in limine would have some finality unless the petitioner could show that the facts and circumstances had so changed in the meanwhile as to justify his filing a second writ petition on almost the same or similar facts.

There has been a clear breach of one of the important conditions of the sale and Section 9 of the Capital of Punjab (Development and Regulation Act, 1952 gives the respondents the powers to resume the plot in view of the breach of Rule 12 of Chandigarh (Sale of Sites) Rules, 1960. It has been argued that the respondents have shown discrimination in the exercise of these powers in the petitioner''s case and that they had relaxed the provisions of the Rules and the Act in a number of other cases. It cannot, however, be said that no leniency or compassion has been shown by the respondents in the petitioners case. An order of resumption of the plot, lawfully passed in 1965, in accordance with the provisions of the Act and the Rules, had been conditionally set aside and the time for the completion of the building had been further extended for a period of about six months. In spite of the petitioner having failed to avail of this extended period allowed for the completion of building, there has been an order for the refund of the entire sale price which had been lawfully forfeited. The press note dated 29th May, 1969 (Annexure ''K'') was obviously not applicable to the cases which had been concluded earlier and this is the stand taken by respondent No. 3 in the reply (Annexure N). It has been stated at the bar by Shri Chiranjit Singh Bindra, Learned Counsel for the respondents, that a large number of plots in Chandigarh have been resumed by the respondents under similar circumstance and that there has been no discrimination in the petitioner''s case. Leniency is shown only in very hard cases and on well recognised principles. In K.V. Rajalakshmiah Satty v. State of Mysore AIR 1967 S.C. 993, it has been observed that a concession cannot be claimed as a matter of right and a writ of mandamus cannot be issued commanding the authority to show indulgence in any particular case. Shri Nehra then relied on the decision of a Division Bench of this Court in L.P.A. No. 218 of 1965 M/s Jagdish Chand Badhey Sham v. State of Punjab L.P.A. 218 of 1965, decided on 21st February, 1966 in support of the argument that after the entire price had been paid the title in the plot had passed to the transferee and that no action could thereafter be taken u/s 9 of the Act. He appears to be relying on stray lines here and there in the judgment, which if read in their true context do not support his contention. It was one of the contentions of the petitioner''s counsel in that case that Section 9 of the Act was ultra vires of Article 14 of the Constitution of India in as much as Sections 8 and 9 of the Act provide for the same matters and that there was no indication in the Act as to, when the authority was to act under either of these two sections, and that these two sections therefore, gave unregulated powers to the executive authority who could proceed at their own sweet will either u/s 8 Or u/s 9. This contention was dealt with at great length and was ultimately repelled. It is clearly contemplated that where the transfer has been made subject to certain conditions and any one of those conditions has been violated, Section 9 would come into operation. Sections 8 and 9 were found to provide for different contingencies and there was no conferment of unfettered powers on the executive authorities. The case of Gurmukh Singh Puri v. State of Punjab ILR 1965 P&H. 215, was also relied upon by Shri Nehra, but it has hardly any bearing on the case in hand.

The petition has no merit and is dismissed. There is, however, no order as to costs.