Singh Bains Vs. Union of India & Ors  INSC 1124
(11 September 1996)
Faizan Uddin, G.B. Pattanaik
Appeal Nos. 12932-35, 12955, 12936-49, 12951, 12953/1996 (Arising out of SLP
(C) Nos. 15376-77, 15393-94, 7960, 8118-19, 9174-79, 12491, 11578-79,
12389-90/90, 885, 1650 and 14-15) AND WRIT PETITION (C) NOS. 520/94, &
O R D
C.A. No. 12931/96 @ SLP No. 4559/93
& W.P. No. 520/96
for impleadment is dismissed.
granted in the special leave petition.
city of beauty, Chandigarh, carefully architectured and
meticulously executed as a model city in India by famous architect, Shri Le. Corbursier; when it was getting
desideration compounded by disfiguration of beauty and elegance, statutory
regulations stepped in to stamp out erosion and to restore its natural
environment. These cases are instances of blatant misusage of the buildings or
plots in the planned structures.
appeal by special leave arises from the order of the Division Bench of the
Punjab & Haryana High Court made on January 27, 1993 in C.W.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").
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).
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 to the appellant/petitioner for taking
possession of the land.
proceedings also ultimately culminated in the judgment of this Court made in
C.A. No. 3102/81 on March
this court had given an opportunity to appellant/petitioner to argue afresh on
merits of resumption but he could not point out any invalidity in the
resumption order. Accordingly, the resumption was upheld. Even on the ground of
eviction also this Court had upheld the order on merits thus :
counsel for the appellant was unable to point any infirmity whatsoever of order
passed by the Estate Officer under the Eviction Act. In view of the
circumstances, we find no force in this appeal and it is accordingly
dismissed." However, one year's time was given to the appellant/petitioner
to vacate the premises subject to his giving an undertaking. Since he had not
filed the undertaking within the prescribed time, it is not in dispute,
possession was taken. Thus the resumption order as well as order of eviction
became final and conclusive against the appellant/petitioner. His right, title
and interest in the said property stood divested and the Chandigarh
Administration became owner thereof. The appellant/petitioner then filed an
application on April 6,
1992 and April 9, 1992 under Rule 11-D of the Rules. The
Estate Officer dismissed the petition giving elaborate reasons in support
thereof. The High Court in the impugned order thereunder has pointed out that
the appellant/petitioner has not given any satisfactory explanation for the
delay of 13 years in filing the application and no fault could be found with
the order passed by the Estate Officer. Thus this appeal by special leave and
the writ petition.
the matter came up for hearing before a Bench of two learned Judges, by order
dated February 14, 1995 reference was made to a three-Judge Bench to consider
the validity of Section 8A of the Act and the question of resumption since is
has got a vital bearing on the right to property held by a defaulter. Thus
these cases have come up before this Bench.
been very strenuously argued by Shri Swaroop Singh, learned counsel for the
appellant with painstaking efforts, realising the tight spot in which the
appellant was placed that the appellant though had used the house partly for
non-residential purpose, (which we need not enter upon for adjudication)
Section 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.
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 interdicted by having him ejected from the premises, he had
challenged the eviction order which was ultimately upheld by this Court.
Thereafter, the appellant had availed of the right and remedy provided in Rule
11-D of the Rules and that, therefore, this was the proper explanation in
filing the application at a belated point of time. The Estate Officer and the
High Court have committed error of law in not considering the delay from this
proper perspective. He further contended that the appellant/petitioner having
invested huge money in construction of double-storeyed building, he cannot be
visited with the penalty of divestiture of title to and ejectment of him from
the said property. When penalty could be collected under Section 15, the
recourse for eviction was bad in law. So, he availed of the right as provided
in Rule- D of the Rules. The exercise of the power of the Estates Officer in
refusing to condone the delay and not re- transferring the property is vitiated
by manifest error of law warranting interference.
Jaiswal, learned counsel for the respondent, has argued that the resumption and
eviction order having become final, it is no longer open to the
appellant/petitioner to challenge the validity of Section 8A. In fact, the
validity of Section 8A was dealt with and upheld by majority of the Full Bench
of the High Court in 301]. When this Court had given an opportunity to the
appellant/petitioner to point out illegality, if any, in the action taken under
Section 8A of the Act, he could not satisfy this Court as to any invalidity
thereof. Under these circumstances, he cannot be permitted to raise these
contentions in the writ petition. He is not entitled to challenge the validity
of Section 8A in the writ petition since his remedy has already been closed by
the orders of this Court. She also contended that the action for resumption was
taken to maintain the ecology sanitation and beauty of the city constructed as
per the design and planning, as a model city. Contravention of the scheme
renders the beauty of the city irreversible. The appropriate course open to the
authorities is to resume the land and prevent such misuser. The
appellant/petitioner having allowed all the options closed to him, it is no
longer open to him, now to challenge the validity of Section 8A of the Act at
this belated 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 High Court also has given cogent
reasons for refusing to grant the relief sought for. Accordingly, no case has
been made out warranting interference.
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 Bench of two learned Judges,
we would have straightaway held that the doors to a litigant citizen under
Article 32 of the Constitution are closed fast and writ petition is not
maintainable since it amounts to reviewing the order passed by this Court in C.A.No
3102/81 March 13, 1992. It is settled law that once an order passed on merits
by this Court exercising the power under Article 136 has become final, no writ
petition under Article 32 on the self-same issue is maintainable. Though the
resumption order was not challenged, this Court had permitted the appellant to
convince this Court had permitted the appellant to convince this Court as to
the invalidity of the resumption order passed under Section 8A but he could not
point out any invalidity nor did he raise any contention as regards the
validity of Section 8A. Therefore, the principle of constructive res judicata
stands fast in his way to raise the same contention once over. However, since
the two-Judge Bench has made the reference in this behalf, it is necessary to
briefly deal with the contentions raised by Sri Swaroop Singh learned counsel
for the appellant.
unsuccessful challenge to Section 9 of the Act under Article 226 before the
Full Bench of the Punjab & Haryana High Court, on appeal, this Court in Jagdish
Chand Section 9 was invalid since the purchaser had already paid the entire
consideration amount and thereafter the power under Section 9 was not available
for resuming the property.
the Parliament amended the Act and introduced Section 8A deleting Sections 9
and 11 of the Act. The statement of Objects in that behalf read as under :
Supreme Court in Jagdish Chand Radhey Shyam V. State of Punjab, (Civil Appeal
No. 1099 of 1967) declared Section 9 of the Capital of Punjab (Development and
Regulation) Act, 1952 (Punjab Act XXVII of 1952), as is in force in the Union
Territory of Chandigarh, as being violative of Articles 14 and 19 (1) (f) of
the Constitution and held that the Central Government is not entitled to resume
the site or building transferred under Section 3 of that Act, or to forfeit the
money paid in respect of such transfer under the said Section 9. The main
ground on which the Supreme Court had based its conclusions was that there is
nothing in the Act to guide the exercise of power by the Government 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
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.)
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. Therefore, it necessitated to
amend the Act and bring on statute Section 8A for of the property used in
violation of the conditions of the sale, provisions of the Act and the Rules
made in that behalf. Majority of the Full Bench in Ram Puri's case [supra] had
considered the effect of Section 8A and held in paragraph 66 thus ;
Adverting specifically to Sec.8A the restrictions for the exercise of the
powers vested thereby exist not only in the express provision thereof, but are
equally discernible from the larger purpose of the Act, its preamble as also
the other sections thereof when read with the statutory rules framed thereunder.
The larger purpose of the planed development and regulation of the new capital
city, as spelled out in the preamble of the Act, is the fixed Pole the power of
resumption under Section 8A is hitched. What deserves highlighting herein is
that this power of resumption under Section 8-A is merely a discretionary and
an enabling power. The statute does not lay down any mandate that it must
necessarily be exercised in a particular situation. In sub- section (1) thereof
it is first in the discretion of the Estate Officer that he may issue a notice
to show cause why an order of resumption of site or building may not be made.
Equally under sub- section (2) after considering the cause shown against such a
notice it is optional for the Estate Officer to order such resumption or not.
The word used in both the sub-sections is 'may' and not 'shall'. Mr. Anand Swaroop
rightly pointed out that this power of resumption is indeed the last arrow n
the quiver of a number of sanctions to enforce the planned development and the
regulation of the capital and to be only resorted to in a situation
commensurate with its necessary exercise. To put it in plain language it is not
mandatory for the authority to order resumption, but only in extreme cases it
enables it to do so when the other powers and sanctions to enforce the purpose
of the Act have failed, or in the circumstances it is the only remedial power
which can be applied. Therefore, it is farcical and imaginary to assume that
the authority would necessarily use this power arbitrarily and whimsically and
that they will use this hammer to swat a fly. As Section 8-A now stands (in
sharp distinction to the deleted Section 9) it mandatorily required a notice to
show cause 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.
in a proper case, the right to approach the Court under Article 226 of the
Constitution of India is equally open.
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 and is,
therefore, in no way violative of Article 19 (1) (f)." Accordingly, the
Full Bench had held that Sections 8-A was brought on statute with a view to
bring it in conformity with the purpose the Act seeks to subserve.
counsel for the appellant relied upon the minority judgment of learned Judge.
It would, however, appear that the learned Judge, with due respect, sought to
set the clock back to the Amendment by constructing the meaning of the words
'forfeiture' and 'resumption' and the consequential effect on general
principles of law without giving needed effect to the object of the Amendment.
Once the statute occupied the field and gave power to resume the land or
building subject to the conditions mentioned therein, the general principles of
resumption and other principles considered therein absolutely remained no more
relevant. The majority judgment has rightly focussed the question in the
correct perspective and had held that Section 8-A is valid in law and,
therefore, not violative of Article 14. In Northern India Caterers (Pvt.) Ltd. vs. State of Punjab & Anr. [AIR
1967 SC 1581], this Court had held that when there are two modes of procedure,
one being more drastic and harsher than the other without any guidelines,
invocation of the former was violative of Article 14 which was reversed by a
larger Bench in Maganlal Chhagganlal [P] Ltd. vs Municipal Corporation of
Greater Bombay & Ors. [AIR 1974 SC 2009] knocking the bottom of the plea of
constitutional invalidity of Section 8-A on the anvil of Article 14. Though
softer course under Section 15 was available, Section 8A does not become
invalid on that score.
9 has been deleted and procedural safeguards have been provided in Section 8-A.
Therefore, Section 8A, having provided fair procedure, does not become
arbitrary and violative of Article 14.
these reasons and also for the reasons given in the majority judgment, we are
of the view that Section 8-A is not violative of Article 14 since it has
prescribed an in- built procedure of giving an opportunity and right to adduce
evidence and consideration thereof by the Estate Officer before resumption and
to pass a reasoned order in support thereof. The order is also subject to an
appeal before the Chief Administrator. If permissible, within circumscribed
parameters, appellate order may be subject to judicial review 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.
we do not find any invalidity in Section 8-A.
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 Officer
becomes final, the allottee has no right to the allotment of the site or
building. Rule 11-D deals with only discretionary power given to the Estate
Officer. It does not clothe the former allottee with any right to reallotment.
power under Rule 11-D is only discretionary; he may give the benefit to the
former transferee subject to fulfillment of the conditions mentioned therein
which includes power to refuse to order reallotment. In fact, this Court has
doubted the wisdom behind Rule 11-D of reopening the issue once over through
back door entry under Rule 11-D, after the entire process of resumption has
become final and received quiteous. It would be a constant sprout of corruption
and abuse of Rule 11-D for diverse reasons which in the interest of smooth
administration need to remove the irritant.
we need not dwell upon it any further as it is not necessary for the purpose of
deciding the question in this case. Suffice it to state that Rule 11-D is only
an enabling provision to make an application. The Estate Officer has discretion
to re-grant the land or building which stood already resumed and vested in the
State. Of course, he cannot arbitrarily reject the petition; he has to give
reasons in support thereof as contemplated in Rule 11-D itself.
considered, the High Court has rightly pointed out that the appellant has not
given any proper explanation for inordinate delay of 13 years in not making the
true that the appellant was carrying on the litigation but was not properly
advised at the appropriate stages to avail the remedies; he landed himself in
trouble on account of his own conduct. Considered from this perspective, having
regard to the facts in this case, we do not think that it is a case warranting
appeal and the writ petition accordingly stand dismissed. No costs.
(C) No. 412/96 The writ petition is dismissed as withdrawn.
C.A. Nos. 12936-37/96 (@ SLP(C) Nos
appeals by special leave arise from the judgment and order of the High Court of
Punjab and Haryana at Chandigarh made on January 25, 1990 and March
16, 1990 in Review
Petition No. 45 of 1990 and CWP No. 8266 of 1988.
the appellants though doctors, are using the premises for nursing home/clinic.
Admittedly, the premises are located in residential zone. Therefore, it would
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.
appeals are accordingly disposed of. No costs.
12932-33/96 (@ SLP (C) Nos. 15376-77/90) Application for intervention is
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.
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 property
from residential to non-residential. The action taken by the authorities is
perfectly legal. However, we give six months time to the appellant to stop the misuser.
He should give an undertaking to the Estate Officer within one month from today
that he would stop misuser within six months from today. If he continues the misuser
even after the expiry of six months form today or any time thereafter, the
Estate Officer is at liberty to resume the property without any further order
or proceedings. Similarly the Estate Officer is at liberty to impose any
reasonable penalty for misuser which the appellant shall pay over.
appeals are accordingly ordered. No costs.
C.A. NO. /96 (@ SLP (C) No. 12491/90).
appeal by special leave arises out of the judgment and order of the High Court
of Punjab & Haryana made on March 16, 1990 in Review Petition No.47/90 and
W.P. No.5576/88. The appeal filed against the main writ petition has already
been disposed of by this Court in R.C. Chawla vs.State of Haryana & Ors. [J]
1996 (1) SC 633].
appeal is disposed of in terms of decision in R.C. Chawla's case. No costs.
C.A. NOs. 12947-48/1996 of 1990 (@ SLP
(C) Nos. 12389-90/ 1650/ and C.A. Nos.
12952-53/96 @ S.L.P (C) Nos. 14-15/91
appeals by special leave arise out of the judgment and order of the High Court
of Punjab and Haryana made on March 16, 1990
and January 25, 1990 in Review Petition No.46/90 in
W.P.5288/88 and other matters.
the appellants were using the premises for non-residential purpose in a
residential area. Therefore, the authorities were well within their power to
issue notice for resumption of the properties. However, pending disposal of
these matters, the appellants have stated that they had already stopped misuser
an year ago. The appellants should file an affidavit before the Estate Officer
stating that they have already stopped misuser of the premises. On such an
affidavit being filed, it would be open to the Estate Officer to have it
verified whether they have already stopped the misuser. If they have already
stopped misuser, the order of resumption may be revoked. If they have not, the
order passed by this Court would not be of any help to the appellants. The
order of resumption would stand upheld.
Estate Officer may fix any reasonable penalty for misuse and the 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.
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- 79/90
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.
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 misuser. If they would have not,
the resumption order would get revived and thereafter it would be open to the
Estate Officer to deal with the property in accordance with law without further
reference to the appellants or taking any further action in this behalf.
misuser is repeated, he would free to resume the property without further
proceedings. Reasonable penalty may be fixed and the appellants shall pay over
appeals are accordingly disposed of. No costs.
250/96 This writ petition filed by the petitioners challenging the resumption
orders passed by the Estate Officer for contravention of the conditions of the
sale. Therefore, it would be open to the petitioners, to avail of remedy, if
any, available under the law.
writ petition is accordingly dismissed. One month's time is given to the
petitioner to approach the High Court.
meanwhile, status quo on today shall be maintained.