Quashed

Vimlesh Garg and Ors. v. Ut of Chandigarh and Ors.

Punjab & Haryana HC15 Feb 2012CWP/1512/2009

Case brief

AI extract

What is this about?

This writ petition challenged resumption orders passed against freehold allottees for non-payment of installment amounts. The High Court quashed the orders, directing deposit of dues, citing the doctrine of proportionality and the hardship of forfeiture.

What did the court decide?

Resumption orders dated 24.8.2006, 13.8.2008, and 5.11.2008 set aside pending deposit of dues by the petitioners.

Vimlesh Garg and Ors. Vs Ut of… — Pension and Retirement Benefits | Punjab & Haryana HC (2012)

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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Date of decision: 15.2.2012 CWP No. 1512 of 2009

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Smt. Vimlesh Garg and ors

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.....Petitioners

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vs.

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U.T. Administration and ors .....Respondents

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Present: - Mr. Puneet Bali, Advocate for the petitioners.

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Ms. Deepali Puri, Advocate for respondents No. 2, 5 and 6.

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CORAM: -HON’BLE MR. JUSTICE HEMANT GUPTA HON’BLE MR. JUSTICE A.N.JINDAL

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HEMANT GUPTA, J

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Challenge in the present writ petition is to the orders dated 24.8.2006 (Anneuxre P-9) passed by the Estate Officer-cum-Additional Commissioner; dated 13.8.2008 (Annexure P-12) passed by Chief Administrator and the order passed by Adviser to the Administrator dated 5.11.2008 (Annexure P-14) resuming site purchased by the petitioner in auction.

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SCF site No. 1019, situated in Motor Market & Commercial Complex, Manimajra, Chandigarh was auctioned by the Municipal Corporation. The said site was allotted on freehold basis to Shri Surinder Sachdeva on 10.10.1996 (Annexure P-1). The said SCF site was transferred in the name of the petitioners vide the letter dated 31.3.1997 (Annexure P- 2). As per the allotment of letter, the balance 75% of the bid

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CWP No. 1512 of 2009

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amount was to be paid in three yearly installments. The Petitioners failed to make payment of the said amount. The proceedings of resumption of the site were initiated under Section 8-A of the Capital of Punjab (Development & Regulation) Act, 1952 (for short the 'Act'). The resumption orders were passed by the authorities for non payment of the due amount. The petitioners filed a Civil Writ Petition No. 10210 of 2003, Smt. Vimlesh Garg and ors vs. U.T. Administration and ors . challenging the order of resumption passed. The same was disposed of on 17.4.2006 along with other writ petitions to enable the allottees, such as the petitioners, to submit the representation which was to be decided by the competent authority after taking into consideration the law laid down by the Apex Court in Municipal Corporation, Chandigarh and ors vs. M/s Shantikunj Investment Pvt. Ltd and ors, 2006(4) SCC 109.

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It is not disputed that the petitioners failed to submit representation in terms of the orders passed by this Court on 17.4.2006, which led to passing of the resumption orders, the subject matter of challenge in the present writ petition.

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Learned counsel for the petitioners argued that nonpayment of the installments carry interest as well as the penalties and that the petitioners have since deposited the entire amount of installments, interest and penalty and is still ready to deposit any amount which is due and payable but the

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CWP No. 1512 of 2009

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non filing of the representation should not be taken as a circumstance for maintaining the resumption orders in respect of the site in question. The stand of the petitioners is that as per the order passed by the Estate Officer dated 10.5.2007 (Annexure R-1), an amount of Rs. 13,46,314/- has been deposited as on 3.11.2008 and if still any more amount is due and payable, the petitioners are ready to deposit the same.

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A Full Bench of this Court in Ram Puri, Chandigarh vs. Chief Commissioner, Chandigarh, AIR 1982 P & H, 301 and Hon'ble the Supreme Court in Teri Oat Estates (P) Ltd vs. U.T. Chandigarh and ors, (2004) 2 SCC 130 , has held that the orders of resumption of a building is a last resort. It observed:

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“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 therefor. 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 must be viewed from the angle as to whether the same attracts the wrath of Article 14 of the Constitution of India or not.

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In terms of the provisions of the Act, the respondents are entitled to: ( 1 ) resumption of the land, ( 2 ) resumption of the building, and ( 3 ) forfeiture of the entire amount paid or deposited. Having regard to the

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CWP No. 1512 of 2009

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extreme hardship which may be faced by the parties, the same shall not ordinarily be resorted to.

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The situation, thus, in our opinion, warrants application of the doctrine of proportionality.

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The said doctrine originated as far back as in the 19th century in Russia and was later adopted by Germany, France and other European countries as has been noticed by this Court in Om Kumar v. Union of India, (2001) 2 SCC 386.

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By proportionality, it is meant that the question whether while regulating exercise of fundamental rights, the appropriate or least restrictive choice of measures has been made by the legislature or the administrator so as to achieve the object of the legislation or the purpose of the administrative order, as the case may be. Under the principle, the court will see that the legislature and the administrative authority

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“maintain a proper balance between the adverse effects which the legislation or the administrative order may have on the rights, liberties or interests of persons keeping in mind the purpose which they were intended to serve”.

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xxx xxxx xxx

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The land in question for all intent and purport had been transferred in favour of the appellants. They were merely to pay the balance amount of 75% of the consideration amount in instalments. The rate of interest, as noticed hereinbefore, had been increased from 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.

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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

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CWP No. 1512 of 2009

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resorted to. 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 allottee 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.

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The entire claim of the respondents arises on account of non-payment of the amount of installments within the time in terms of the letter of allotment. It is also not disputed that the rules contemplate charging of interest and penalties in case that amount is not paid within time allowed. The Petitioner has shown their bona-fides in depositing the amount due as well. Therefore, we find that the interest of justice would be satisfied if all the due amounts as are leviable in terms of the rules applicable to the site in question are claimed from the petitioners and are deposited by the Petitioner as the resumption of site for non payment of amount seems to be harsh.

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In view of the said fact, we set aside the orders of resumption dated 24.8.2006 (Annexure P-9); dated 13.8.208 (Annexure P-12) and dated 5.11.2008 (Annexure P-14), subject to the condition of deposit of any other due by the petitioners.

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The respondents shall communicate within one month from today, if any other amount is due and payable by the petitioners. A copy of the said communication be

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CWP No. 1512 of 2009

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communicated to learned counsel for the petitioners as well.

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The petitioners shall deposit the amount within a period of one month. If the petitioners deposit the whole amount, the resumption orders as mentioned above shall be deemed to be set aside.

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Disposed of, in the above terms.

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(HEMANT GUPTA) JUDGE

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(A.N.JINDAL) JUDGE

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15.2.2012 preeti

Vimlesh Garg and Ors. v. Ut of Chandigarh and Ors.

Case brief

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Vimlesh Garg and Ors. v. Ut of Chandigarh and Ors.

Case brief

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