SUPREME COURT OF INDIA
Jyotsna Kohli
Vs.
Union Territory of Chandigarh
C.A.No.2577 of 2004
(S. R. Babu and P.Venkatarama Reddi JJ.)
20.04.2004
P. Venkatarama Reddi, J.
1. Leave granted.
2. The appellant's father was allotted a plot measuring 763 sq. yards in Sector
7-C, Chandigarh by the Chandigarh Administration by means of an auction sale
and a deed of conveyance was executed on 13.10.1970. Subsequently, the site was
transferred in favour of the appellant.
3. A showroom was constructed on the site and in the year 1974, the building
was let out to Allahabad Bank. Though it is claimed that the Estate Officer,
U.T., Chandigarh gave consent for such letting, no material has been placed
before the Court in support of this version.
4. In view of the infringement of the conditions of sale read with the Rules,
namely, Chandigarh (Sale of Sites and Buildings) Rules, 1960, the Estate
Officer by an order dated 25.11.1980 resumed the site on the ground of misuser
and also forfeited 10% of the cost of site. This was done after issuing
show-cause notice and opportunity of hearing to the appellant. The power of
resumption is conferred by Section 8-A of Capital of Punjab (Development and
Regulation) Act, 1952.
5. It appears that the appellant filed an injunction suit in the year 1982
against the Bank to restrain it from using the premises, but the same was
dismissed on the ground that the appellant had no locus standi. The Estate
Officer initiated eviction proceedings against the Bank and passed an order of
eviction on 7.11.1984. The appeal and revision filed by the Bank failed.
However, the revisional authority by an order dated 14.6.1989 granted two years’
time to the Bank to stop the misuser. It is the case of the appellant that even
thereafter the Bank did not vacate, and therefore, he filed a writ petition in
the High Court to direct vacation of the premises by the Bank. The writ
petition was disposed of on the basis of the undertaking given by the Bank to
vacate the premises on 31st December 1991. The Estate Officer took possession
on 18.12.1991 and sealed the building. The appellant then filed CWP No. 11596
of 1993 in the High Court of Punjab & Haryana praying for quashing the
order of resumption and for restoration of showroom. While dismissing the writ
petition, the High Court observed that if the appellant makes an application
under Rule 11-D of the Rules of 1960, such an application would be decided by
the appropriate authority within a month. Against this order of the High Court,
the appellant filed SLP (C) No. 23499 of 1994 which was dismissed as withdrawn
by an order dated 8.11.1995 subject to the observations made therein. The
following is the text of the order of this Court:-
"Mr. G.L. Sanghi, learned counsel appearing for the petitioner, states
that the petitioner will file an application in accordance with Rule 11(d) of
the Chandigarh (Sale of Sites and Buildings) Rules, 1960 within a period
of eight weeks from today and therein raises all the points agitated in the
present special leave petition. With the above statement, Mr. Sanghi seeks
permission to withdraw this Petition. The prayer is allowed.
In case any such application is filed within the period stipulated above, the
concerned authority will dispose of the same in accordance with law within two
months from the date of its receipt. Needless to say, if any order adverse to
the petitioner is passed on that application, the petitioner will be at liberty
to assail the same in the appropriate forum."
6. At this stage, a reference to Rule 11-D may be made:-
Rule 11-D:
(1) Where a site has been resumed under Section 8-A of Act No. XXVII of 1952
for any reasons, the Estate Officer may, on an application, re-transfer the
site to the outgoing transferee, on payment of an amount equal to 10 percent of
the premium originally payable for such property or one third of the difference
between the price originally paid and its value at the time when the
application for transfer is made, whichever is more.
xx xx xx
Provided that such transfer shall be permissible only if,
(i) Where the site has been resumed on ground of misuser, the misuser has
stopped;
(ii) Where the site has been resumed for non-payment of price, all outstanding
dues including forfeiture have been paid;
(iii) Where the site has been resumed for breach of any conditions of sale, the
breach has been remedied and conditions fulfilled.
Notwithstanding anything contained in the proviso above, when the site has been
resumed on ground of misuser or non- completion of the building on it within
the stipulated period; the Estate Officer may allow the retransfer on the
applicant agreeing to vacate or have the misuser vacated or the building
completed, as the case may be, within such reasonable period as the Estate
Officer may stipulate.
Explanation : x x x x x
(2) The retransfer under sub-rule (1) shall be in continuation of and subject
to all subsisting conditions but without prejudice to all the proceedings or
liabilities or subsisting penalties levied in respect of such property before
the date of the transfer.
(3) The prevailing price shall be assessed by the Estate Officer or such other
authority as may be prescribed by the Chief Administrator and in doing so the
Estate Officer or such other authority shall give the applicant reasonable
opportunity of being heard. The assessment made by the Estate Officer shall be
final."
7. It is clear from the perusal of Rule 11-D that on fulfillment of the clauses
in the proviso, the Estate Officer is empowered to re-transfer the site on
payment of the amount specified therein. Rule 11-D does not contemplate any
dispute being raised as to the legality or propriety of the resumption order.
The points raised in this special leave petition, turning on the merits of the
case, could not have been raised in an application under Rule 11-D. However, a
representation was made that all the points agitated in the special leave
petition will be raised before the Estate Officer in Rule 11-D application.
This Court did not grant any liberty to do so, but merely recorded the
representation made by the learned counsel on behalf of the appellant. The
Court merely directed the concerned authority to dispose of the application in
accordance with law.
8. In the 11-D application filed by the appellant before the Estate Officer,
the correctness of the resumption order itself was questioned. Apart from
contending that there was no misuse in the real sense of the term, the
appellant quoted certain instances in which the resumption orders were set
aside and the sites restored to the allottees by the appellate or revisional
authorities. The Estate Officer rightly observed that it is not open to him to
go behind the resumption order which had become final. The cases cited by the
appellant were distinguished on facts. The Estate Officer, however, allowed the
application under Rule 11-D subject to the payment of the amount as per the
Rule. The Estate Officer passed this order on 27.2.1996. The appeal to the
Chief Administrator was rejected on 8.9.1998. The appellate authority reaffirmed
the view of the Estate Officer. The revision petition filed before the Chief
Administrator was dismissed as not maintainable. In fact, no appeal or revision
is provided under the Rules against the order passed under Rule 11-D. The
appellant then filed Writ Petition No. 10342 of 2001 which was dismissed by the
High Court by the impugned order dated 19.7.2001. The Division Bench of the
High Court observed:-
A reading of this rule makes it clear that the offer of retransfer can be made
only after the order of resumption has become final. The petitioner is now
seeking to challenge the order of resumption, which we are afraid, cannot be
allowed in these proceedings. In pursuance of the observations made by the Apex
Court, the Chandigarh Administration made an offer to the petitioner to have
the property transferred in her name subject to the payment determined. The
offer is fair and reasonable in the circumstances of the case and we find no
ground to interfere."
9. It is against the said order this SLP is filed. It is firstly contended by
the learned counsel for the appellant that this Court, while dismissing the
earlier SLP, must be deemed to have granted liberty to seek cancellation of
resumption order and that in any event the appellant should not be prejudiced
on account of the representation made by the counsel under the bona fide
impression that the resumption order could be revoked even at that stage. This
contention has no force whatsoever, viewed in the light of the order of this
Court as well as the scope and ambit of Rule 11-D.
10. In any case, this contention need not detain us further in view of the fact
that the main contention urged by the appellant was negatived on merits also.
The Estate Officer as well as the Chief Administrator found that the instances
referred to by the appellant are not comparable, but they are distinguishable
on facts and, therefore, the same treatment cannot be accorded to the
appellant.
11. The learned counsel for the appellant has sought to rely upon some more
recent instances in which the resumption order was set aside, in a bid to
persuade us to direct de novo consideration. It is not possible for us to
embark on an enquiry into the relevance of the orders in the alleged comparable
cases. Moreover, it will not be legal and proper to reopen the issue of
resumption which had become final long back. The propriety or otherwise of the
order passed by the Estate Officer can only be examined from the stand point of
Rule 11-D. So also, the question whether the procedure under the provisions of
Public Premises Act was duly followed, cannot be gone into in this appeal at
this stage. Broadly speaking, we find no legal infirmity in the order
passed by the Estate Officer.
12. It is then contended by the learned counsel for the appellant that the
misuser pertained only to a part of the premises and therefore it is not fair
and reasonable to call upon the appellant to deposit the value of the entire
site.
13. As rightly pointed out by the learned counsel for the respondents, this
plea was not raised in the earlier proceedings. Even in the SLP, it is not
raised in specific terms though there is an averment in the synopsis of dates
and events (vide pages 'B' and 'E') that most of the premises has been used for
authorized purpose but what was let out to the Bank in the year 1974 was only
the front portion of the building. We consider it just and proper to direct the
Estate Officer to examine whether this assertion is factually correct and if
so, whether any proportionate relief can be granted or not on this basis. It is
open to the appellant to furnish the necessary details with supporting evidence
if any to substantiate her version in this behalf. The other question that
remains to be considered is the date which ought to be taken into account for
the purpose of computing the value in terms of Rule 11-D. Going by the strict
terms of Rule 11-D, the value has to be assessed with reference to the date on
which the application was made. In this case, the application was made soon
after the SLP was dismissed on 8.11.1995. Hence, according to the strict
interpretation of the rule, the value prevailing in 1996 should in the normal
course be taken into account.
14. However, we are of the view that in the peculiar circumstances, the rigour
of the Rule has to be relaxed and some relief has to be granted to the
appellant. The fact remains that the misuse of premises came to an end with the
Bank vacating it towards the end of 1991. The appellant herself took some
active steps to evict the Bank with a view to put an end to the misuser. But,
the various proceedings consumed lot of time. The revisional authority granted
two years’ time to the Bank to vacate while dismissing the revision. After the
Bank had vacated and the appellant made sure that the misuser ended, it questioned
the resumption order in High Court by filing a writ petition in 1993. The High
Court dismissed the writ petition with an observation that the petitioner may
make an application under Rule 11-D. Thereafter, the SLP was filed in this
Court which was dismissed subject to the direction that the application if
filed will be disposed of according to law.
15. We have no doubt that the appellant was bona fide pursuing litigation. She
did not file the application earlier for the various reasons mentioned above.
16. In the circumstances, the ends of justice will be met by directing the
respondent-Estate Officer to treat the application under Rule 11-D as having
been filed in the year 1992 and assess the value on that basis. This is without
prejudice to any relief that may be granted to the appellant in terms of the
direction supra to examine the question of granting proportionate relief while
fixing the value.
17. The appellant shall deposit the amount fixed in the light of the above
directions on the receipt of the communication working out the figures. The
amount shall be paid within the time and in the manner laid down in sub-rule
(4) of Rule 11-D. In case of default in payment, it is open to the Estate
Officer to reject the application. On payment of the full amount determined, it
is open to the appellant to apply for change of user, if it is permitted under
the Rules and Orders in force.
18. The appeal is disposed of accordingly without costs.