TMI Blog2003 (12) TMI 588X X X X Extracts X X X X X X X X Extracts X X X X ..... order, which, in our opinion would meet the ends of justice. However, so far as the other matters are concerned, having regard to the facts and circumstances obtaining in their cases, we do not intend to direct levy of any penalty on them. - Appeal (civil) 49 of 1999 - - - Dated:- 19-12-2003 - KHARE, V.N., SINHA, S.B., JJ. JUDGMENT S.B. Sinha, J. 1. These appeals involving common questions of law and fact were taken up for hearing together and are being disposed of by this common judgment. The short question which arises for consideration in these appeals centers round the power of resumption of land/building of the first respondent in favour of the appellants under the Capital of Punjab (Development and Regulation) Act, 1952 read with the Chandigarh Lease Hold of Sites and Buildings Rules, 1973 and the Public Premises (Eviction of Unauthorized Occupants) Act, 1971. BACKGROUND FACT : 2. The factual matrix of the matter is being noticed from Civil Appeal No. 49 of 1999. The site bearing No. SCO 126-127, Sector 34-A, Chandigarh was purchased on lease-hold basis by the appellant in open auction held on 13.3.1988. The purchase amount was to be paid in lump sum and/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Estate Officer failed to take into consideration that in the meanwhile a sum of Rs. 6,00,000/- was deposited. A proceeding for cancellation of the lease by way of resumption of the land and building thereafter, was initiated. It is not clear as to whether the appellant in the said proceeding took part or filed any reply in response to show cause notice. The Estate Officer in his order dated 13.8.1992 although noticed that the appellant had been granted an opportunity of being heard in person but failed to notice as to whether on those days any of them had appeared and/or made his submission or not. He, however, recorded : "In spite of various opportunities the lessee(s) has failed to clear the outstanding dues. It appears that the lessee(s) is/are not in a position to clear the Govt. dues. I hold the default wilful. THEREFORE, in exercise of the powers vested under Rule 12(3) of the Chandigarh Lease Hold of Sites and Building Rules, 1973, lease of the said site is hereby cancelled as a last resort and further 10% of the premium of the site i.e. Rs. 2,87,000/- (Rupees Two Lacs Eighty Seven Thousand only), plus ground rent and interest calculated to the date of cancell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Estate Officer shall become operative. However, as ordered by the Chief Administrator, he is not liable to pay penalty on Ist instalment. They will however pay only 2% forfeiture. It is urged by the learned counsel for the petitioner that the Estate Officer does not cooperate with the party concerned in preparing the accounts statement and, therefore, direction to this effect may be given to the quarter concerned. In order to obviate the changes that the petitioner may not come with the plea that he could not pay the due amount in time because of non-supply of account statement, it is ordered that Estate Officer shall prepare the account statement of the petitioner indicating the balance amount to be paid by him as early as possible and deliver the same to the petitioner by 25^th May, 1995. Announced. Parties be communicated." 7. The appellant contended that in the Statement of Accounts forwarded to the appellant by the Estate Office pursuant to or in furtherance of the said direction, in stead and place of 12% interest, 15% interest for certain period and 24% interest for the rest had been levied. Levy of such penal interest, it appears, was the subject matter of a writ p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the property. The petitioners, in the meanwhile, are directed to approach the Estate Officer and have their account prepared of all the dues as due uptil 31^st March, 1998 and make payment thereof before that date. The Estate Officer and the Chief Administrator would be bound to render assistance in the preparation of accounts and accept payment but subject to the result of these petitions." 13. Pursuant to or in furtherance of the said direction, the appellant by pay orders dated 27.3.1998, 17.2.1998 and 15.7.1998 tendered a total sum of Rs. 26,57,500/- stating : "With amount remitted above, it is hoped that all the dues stand clear. However, as per orders of the Honourable Supreme Court of India the total due amount after deducting Rs. 26,57,500/- may kindly be intimated so that compliance may be made. " 14. The Estate Officer in response to the said letter by his order dated 18,3.1998 intimated to the appellant the account showing dues of a further sum of Rs. 3,55,027/- including ground rent. It appears from the accounts that the appellant had made over payment by Rs. 3,723/-. Upon charging of ground rent for the period 13.3.1998 to 10.4.1998 for a sum of Rs. 71, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t resort. The learned counsel would urge that in Babu Singh Bains (supra), this Court having affirmed the judgment of the Punjab Haryana High Court in Ram Puri (supra), must be held to have accepted the said principle. 18. Drawing our attention to several judgments of this Court including those in which one of us (V.N. Khare, CJI was a Member), Mr. Sibal made submissions to the effect that a humane approach is required to be taken in such matters. The learned counsel in this behalf relied upon Jasbir Kaur v. U.T. Chandigarh , Pochira Ceramics v. HUDA and Ors.Kashmir Chand v. State of Haryana, , Surinder Kaur v. Government of Punjab and Ors. , S.M.S. Sandhu Builders v. Chandigarh Administration and an unreported order of this Court dated 23.1.1998 passed in Batra Finance v. Chandigarh Administration (Civil Appeal No. 459 of 1996 arising out of S.L.P. (C). No. 17041 of 1997). 19. Ms. Kamini Jaiswal has also referred to a few unreported orders of this Court wherein the parties had been directed to take recourse to the provisions for re-allotment of the lands. VIRES OF THE 1952 ACT : 20. The constitutionality of Section 8-A of the 1952 Act as inserted by the Central Act No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lty in the case of congenital resumption. That is what was held in Amrit Sagar Kashyap's case (1980-82 Pun LR -441) (supra) which has to be approved to this aspect of the case. For the aforesaid reasoning, the Estate Officer has no choice in the matter. On the other limb, the argument on behalf of the Chandigarh Administration that the title to the site is divested in its favour sans the building constructed thereon appears to me wholly chimerical and unworkable, besides being iniquitous. Three Latin maxims will convey the point :- (i) "A edification solo, solo credit" (That which is built on land becomes part of the land) (ii) "Ouickquid plantatur solo, solo cedit whatever is affixed to the soil belongs to the soil). (iii) "Omen quod solo inaedificator solo credit" (Everything which is built upon the soil passes with soil). These maxims have the advantage of embodying the wisdom of many under each of the one who coined them. And it is said, these maxims are 'prying emanations of the eternal wisdom'. It is undoubtedly true that their usefulness increases, rather than diminishes, as the law grows complex and involved, for they bring back the mind to the dust principl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eas the part payment in terms thereof was to be made on the said date. The revisional order dated 17.5.1995 provided that payment be made in terms of the accounts submitted by the Estate Officer but the question as to whether the Estate Officer could levy interest over and above 12% p.a. i.e. 15% from 1992 and 24%, from 1993 was the subject-matter of a writ petition which was pending before the High Court. The appellant paid the entire amount which, according to the it, was due to the respondent. It further kept in readiness a pay order of Rs. 13,00,000/-, a copy whereof had also been filed with the review application. 24. It is, therefore, not a case where the court will have to take one stand or the other in the light of the statutory provisions. The question as to whether the extreme power of resumption and forfeiture has rightly been applied or not will depend upon the factual matrix obtaining in each case. Each case may, therefore, have to be viewed separately and no hard and fast rule can be laid down therefore. In a case of this nature, therefore, the action of the Estate Officer and other statutory authorities having regard to the factual matrix obtaining in each case mus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 214 (F.B.) suggesting that the action for resumption of allotted site should be taken only as a last resort deserve full respect. However, we cannot ignore the growing tendency amongst allottees of commercial and other lands to enjoy the public property without paying the premium, ground rent etc. A very large number of cases have come to our notice in which the allottees have not paid a single penny after occupying the allotted property. Therefore, we are of the opinion that in those cases Where the allottee consistently defaults in payment of the premium etc. it will be open to the competent authority to take action under Section 8A or Rule 12(3)." 29. That was not the correct approach to be adopted by the High Court. CASE LAWS : 30. In Jasbir Kaur (supra), a Bench of this Court of which one of us V.N. Khare, J (as the CJI then was, was a Member) without expressing any opinion on the question of law as raised therein directed regularization of allotment of the site in favour of the appellant taking note of the fact that the entire amount which was due had been paid. In Jasbir Kaur v. Union Territory of Chandigarh and Ors. [(1991) 1 P.L.J. 417], a Division Bench of the Pun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed above, we do not think that it is a case in which any interference is called for in the matter. But we feel that since total amount of premium as well as the amount of interest @ 12% stands deposited as stated on behalf of the appellant, it would not be just and appropriate that the appellant be disallowed the opportunity of depositing the difference in amount on account of enhanced rate of interest i.e. @ 24%. 9. In the result, we dismiss the appeal with costs but allow the appellant six weeks' time to deposit the balance amount of difference in interest @ 24% as per demand of the respondents." 34. A three-Judge Bench of this Court in Patiala Inds. Investment Co. Pvt. Ltd. v. Union of India and Anr. , on a concession made by the learned Solicitor General that the enhanced rate of interest @ 24% would be chargeable from 22.7.1993, directed : "Revised calculation of the amounts due and payable by the petitioners will be on this basis, will be served on the petitioners within one week from today. Within four weeks from the service of the revised demand 25 per cent of the amount due from each of the petitioner will be paid to the respondents. The balance amount will be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... having been permitted to appear at the examination and having been successful and certificates had been issued in their favour, held : "...We are conscious of the fact that our order setting aside the impugned directions of the High Court would cause injustice to these students. But to permit students of an unaffiliated institution to appear at the examination conducted by the Board under orders of they Court and then to compel the Board to issue certificates in favour of those who have undertaken examination would tantamount to subversion of law and this Court will not be justified to sustain the orders issued by the High Court on misplaced sympathy in favour of the students..." PROPORTIONALITY : 40. The issue in the light of the decision of the full Bench of the Punjab Haryana High Court in Ram Puri v. Chief Commissioner, Chandigarh (supra) as affirmed by this Court in Babu Singh Bains and Ors. v. Union of India and Ors.(supra) may have to be considered from another angle. 41. By reason of the auction held, the land in question has been sold in favour of the appellant. A letter of allotment has been issued in terms thereof. The appellant has been put in posses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... easonableness, wherever prescribed, should be applied to each individual statute impugned, and no abstract standard or general pattern of reasonableness can be laid down as applicable to all cases. The nature of the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time should all enter into the judicial verdict. In evaluating such elusive factors and forming their own conception of what is reasonable, in all the circumstances of a given case, it is inevitable that the social philosophy and the scale of values of the judges participating in the decision, should play an important part, and limit to their interferences with legislative judgment in such cases can only be dictated by their sense of responsibility and self-restraint and the sobering reflection that the Constitution is meant not only for the people of their way of thinking but for all, and that the majority of the elected representatives of the people have, in authorizing the imposition of the restrictions, considered them to be reasonable." 48. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich has the force of statute. The secondary review was held to be applicable inter alia in relation to the action in a case where the executive is guilty of acting patently arbitrarily. This Court noticed E.P. Royappa v. State of Tamil Nadu and observed that in such a case Article 14 of the Constitution of India would be attracted. In relation to other administrative actions as for example punishment in a departmental proceeding, the doctrine of proportionality was equated with Wednesbury Unreasonableness. 51. We may, however, notice that the said doctrine in principle or the spirit thereof has recently been applied by the Court of Appeals. 52. In Edore v. Secretary of State for the Home Department, [2003] 3 All ER 1265, the appellant was a citizen of Nigeria who had entered into the United Kingdom and remained back after her visa had expired. She had two children, born to a British citizen. The children were emotionally dependent on him and he was a stabling influence on their lives. If the appellant and her children were retuned to Nigeria, their relationship with their father would end. The Court trying to resolve the conflict at hand opined :- "Where the essential ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7% to 24%. Penalty was levied by the appellate authority at 1% and the revisional authority at 2%. Contrary thereto the Estate Officer, however, in terms of his original order directed payment of penalty at 10% F.F. 57. We may, however, hasten to add that we do not intend to lay down a law that the statutory right conferring the right of the respondent should never be resorted. We have merely laid down the principle giving some illustrations where it may not be used. There cannot be any doubt whatsoever that if the intention of the allottee is dishonest or with an ill motive and if the allotter does not make any payment in terms of the allotment or the statute with a dishonest view or any dishonest motive, then Section 8(A) can be taken recourse to. 58. We, however, cannot but deprecate the conduct of the appellants in not making an endeavour to pay the instalments within a reasonable period. They, thus, did not pay the entire amount of the first instalment within the stipulated period; only a part payment was made in the year 1990 and 1992 by that time even the second instalment became due. They did not make any payment before the revisional authority despite the order passed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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