TMI Blog1996 (9) TMI 604X X X X Extracts X X X X X X X X Extracts X X X X ..... .P. No. 14183/92 upholding the order of the Estate Officer who refused to condone the delay in making application under Rule 11-D of the Chandigarh (Sale of Sites and Buildings) (Amendment) Rules, 1979 (for short, the Rules ). The writ petition under Article 32 of the Constitution was filed by the petitioner challenging the validity of Section 8A of the Capital of Punjab (Development Regulation) Act, 1952 (Punjab Act of 1952) (for short, the Act). The facts are long and tendentious. Suffice it to state, in nutshell, that the appellant/petitioner having had the allotment of free hold plot in residential Sector 21-A, viz, bearing House No. 341 in Street 'D' had constructed a double-storeyed house. He had used it as Blue Star Guest House,contrary to the regulations. Consequently, a notice of resumption under Section 8 of the Act was given to the appellant/petitioner. After following the procedure prescribed thereunder, the resumption order came to be passed on October 17, 1977. The revision against that order came to be dismissed on August 28, 1978. Thus the resumption order had become final. Subsequently, notice under Section 5 of the Public Premises Act was issued ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 8A of the Act would be invoked only when the installments of purchase price of the site, or other dues were not paid by the purchaser. On their due discharge, power under Section 8A gets exhausted. For violation of the rule for misuser of the property, there is no power under Section 8A of the Act to resume the property. Such power would be available and be invoked only when available under any State law. The only remedy provided under Section 15 of the Act is to stop misusage without invoking the power of resumption, laying prosecution under Section 15 and to collect the penalty. The power under Section 8A cannot be resorted to in case misuse; such invocation of power would be an arbitrary exercise of power violating Article 14 of the Constitution. It is also contended that the appellant has been using all legal recourse open to redress his legal injury and was diligently prosecuting the remedies available under the law. There was no need for him to challenge the resumption order in any court of law for the reason, that the resumption at one point of time was only divestiture of the little but not of dispossession from the property. When his possession was sought to be inter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elated stage. Even otherwise, section 8A is ultra vires the Act as it seeks to sustain the purpose and policy of the Act which otherwise would be rendered ineffective and toothless. She further contends that he having slept over for 13 years, the appellant cannot be permitted to file an application under Rule 11-D of the Rules. He has no right as such. He has only benefit of making an application. It is a discretionary relief available to him under the Rules to be considered by the Estate Officer. In view of the background of the case, the Estate Officer had considered the totality of the facts and given elaborate reasons for refusing to condone the delay and to re-transfer of the property. In support thereof, she relies upon the judgment of this Court in Chandigarh Administration Vs. Johnson Paints [(1196)] 3 SCALE 680]. The High Court also has given cogent reasons for refusing to grant the relief sought for. Accordingly, no case has been made out warranting interference. In view of the diverse contentions raised, the only question is ; whether the appellant/petitioner is entitled to avail of the remedy under Article 32 of the Constitution ? But for the reference made by the Be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt as to when and how any of the methods for recovering the amount of consideration in arrears specified in Sections 3, 8 and 9 of the Act, will be chosen. (Emphasis supplied.) 2. The decision of the Supreme Court has created several practical difficulties in administering the provisions of the Act. Further, the situation created by the decision of the Supreme Court is already having an adverse effect on the regulation and development of the entire city of Chandigarh, which has been planned and developed with great care and at considerable expense over the past several years. It is, therefore, essential to remove the objections pointed out by the Supreme Court by amending the Act retrospectively from the 1st of November, 1966 being the date on which the Union Territory of Chandigarh was formed, and to validate the actions taken under the impugned provisions of the Act (Emphasis supplied.) 3. The Bill seeks to achieve the aforesaid objections. (emphasis supplied) A reading thereof would clearly indicate the animation of the Legislature that the aforesaid decision of this Court was causing inconvenience for preventing misuser of the property defeating the scheme of the Act. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se to the person concerned whenever the exercise of this power is contemplated. Not only is such a person entitled to have a reasonable opportunity of contesting such a notice, but the law in terms confers on him the power to lead evidence in support of his stand. The mandate as laid on the Estate Officer is to record his reasons in case he orders resumption. Apart from these inbuilt safeguards under Section 8- A, it is statutory rules which provide for an appeal against the order of resumption by the Estate Officer, to the Chief Administrator. It is thereafter that the rules zealously provide for a revision to the Chief Commissioner, who is the executive head of the Union Territories. Obviously in a proper case, the right to approach the Court under Article 226 of the Constitution of India is equally open. 68. In conclude, in the larger conspectus of the purposes of the Act itself, its preamble; the setting in which it is placed along with the supplementary sections of the Act and the rules framed thereunder it has to be held that the enabling power of resumption conferred thereby is only a reasonable restriction on the fundamental right to hold, acquire and dispose of property ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iew under Article 226. Since this procedure was not available under Section 9 of the Act, this Court had declared it as ultra vires of Article 14. The vice pointed out by this Court in Jagdish Chander's case (supra) has been cured by introducing Section 8-A. It would, therefore, be clear that the resumption under Section 8-A is not only in case of non-payment of dues under the sale but for violation of the conditions of the sale, the rules, regulations and other relevant conditions applicable in that behalf. Therefore, we do not find any invalidity in Section 8-A. It is then to be seen; whether the appellant's application under Rule 11-D of the Rules has not been considered in proper perspective by the Estate Officer and whether any illegality has been committed by the High Court by not interfering therewith. Having considered the reasoning given by the Estate Officer in his order and the conclusion reached by the High Court, we do not think that they have committed any illegality in refusing to condone the delay. This Court has pointed out in Johnson Paints's case [supra] in paragraph 6 that once the original allotment stands cancelled and resumption by the Estate O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould clearly be a contravention of the rule of by misuser of the house for non-residential purpose. Accordingly, we do not find any illegality in the action taken by the respondents. However, six months time is granted to the appellants to stop the misuser. The appellants should give an undertaking before the Estate Officer within four weeks from today that they would stop misuser on expiry of six months from to-day. In case they do not misuser on expiry of six months, the Estate Officer is entitled to resume the property without any further order or action. For misuser, in lieu of resumption, the Estate Officer may impose any reasonable penalty which the appellants shall pay. The appeals are accordingly disposed of. No costs. C.A. NOs. 12932-33/96 (@ SLP (C) Nos. 15376-77/90) Application for intervention is dismissed. Leave granted. These appeals by special leave arise from the judgment and order of the High Court of Punjab Haryana made on January 25, 1990 and March 16, 1990 in Review Petition No. 49/90 and CWP No. 8317/88. The appellant is using part of the property for non- residential purpose, viz., a shop and, therefore, it is clear case of conversion of user of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he appellants shall pay over the same. If they were to repeat the misuser, the Estate Officer would be free to resume the property without taking any recourse to fresh proceedings. The appeals are accordingly disposed of. No costs. C.A. NOs. 1249,12934-35,12955,12938-43,12945-46/96 @ S.L.). (C) Nos. 885/91, 15393-94, 7960, 9174-79 11578- Leave granted. These appeals by special leave arises from the judgment and order of the High Court of Punjab and Haryana made on January 25, 1990 in CWP No. 1162/89 and other matters. The appellants, admittedly, have been using the residential premises for non-residential purpose converting it into a shop contrary to the conditions of the sale and also the Rules. Thereby, it is a clear case of misuser of the premises. However, an opportunity is given to the appellants to stop the misuser within six months form today and pay reasonable penalty levied by Estate Officer on misuser. They should file an undertaking before the Estate Officer within one month from today that they would stop the misuser with six months from today. On expiry of six months, it would be open to the Estate Officer to verify whether the appellants have stopped the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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