Mai Ram Jain vs Union Territory, Chandigarh

Jai Singh Sekhon and S.S. Kang, JJ.

The petitioner was running his business of repairing and manufacturing trunks at Site No. 24E, Bajwara, Chandigarh. In the year 1975 the Administration of Union Territory of Chandigarh had framed a Bajwara Liquidation Scheme vide which all these shops and sites of many persons, including the petitioner were resumed. In order to compensate the petitioner and the other oustees, the Administration allotted booths in Sector 47C. The petitioner was allotted booth site No. 16 in Sector 47C, Chandigarh vide allotment letter dated Sept. 27, 1975, copy Annexures P1. Clause 14 of the allotment letter provided the completion of the construction of the booth within three months from the date of the issuance of the allotment letter and handing over the possession of the site in Bajwara market within three months positively failing which the allotment of the alternative site will be considered as cancelled and the amount already paid shall be forfeited. The petitioner paid the entire amount of Rs. 5874/ by selling stock of his Bajwara shop, but due to financial stringency as a result of displacement of his business, he failed to construct the booth. The Estate Officer, Chandigarh respondent No. 3 issued notice under Section 8A of the Capital of Punjab (Development and Regulation) Act, 1952 (hereinafter referred to as the Act) for resuming the booth on the ground of its nonconstruction. In answer to the said notice, the petitioner appeared before the Estate Officer and requested for time for filing the written reply besides to take the assistance of an Advocate, but the Estate Officer did not allow him to do so and passed the resumption order copy Annexure P2, on that very day, i.e. November 6, 1978, under Rule 12 of the Chandigarh (Sale of Sites) Rules, (hereinafter referred to as the Rules). The petitioner challenged this order before the Chief Administrater, Chandigarh, through an appeal contending that the Estate Officer has not passed a speaking order. The Chief Administrater partly accepted the appeal and allowed six months'' time for completion of the construction. He, however, forfeited an amount of Rs. 587.40 representing 10% of the price of the plot vide order Annexure P.3 dated August 5, 1980. The petitioner alleges that this order was conveyed to him on October 15, 1981, i.e. after the expiry of six months. The petitioner then filed a revision petition before the Advisor to the Administrater (Exercising the powers of Administrater), Chandigarh, which was dismissed on August 23, 1988, copy Annexure P4 on the ground of being barred by time.

The petitioner challenges the above referred orders, Annexures P2, P3 and P4 being illegal and ultra vires the provisions of the Act, besides against the principles of natural justice, contending that Clause 14 of the allotment letter in fact provided time of three months for vacating the site at Bajwara market as it is not specifically mentioned therein that the site in dispute shall be resumed if the booth is not constructed within three months. It was also stressed that due to financial stringency resulting from the loss of the business of the petitioner he had failed to construct the booth. The impugned order of the Estate Officer was also contended to be bad in law being violative of the mandatory provisions of Section 8A of the Act, providing a reasonable opportunity of hearing to the concerned party. The petition was resisted by the respondents contending the rule 12 of the Rules allows a party to agree to a particular period for construction of the building. Thus in the present case, Clause 14 of the allotment letter providing three months'' time was perfectly valid as the petitioner had accepted the allotment. It was further maintained that the petitioner were deliberately not constructing the booth and that the order of the Estate Officer was speaking order. It was also stressed that the order dated August 5, 1980 of the Chief Administrater was conveyed through letter dated October 28, 1980 under registered cover.

There is considerable force in the contentions of the learned counsel for the petitioner that the resumption of the site should be used as ultimate civil sanction by the Authorities in order to enforce the vacation of the site at Bajwara market and construction of the booth. Similar controversy came up for consideration before the Full Bench of this Court in Shri Ram v. The Chief Commissioner Chandigarh and others, 1982 P.L.R. 388. After elaborate discussion, S.S. Sandhawalia, C.J. (as his Lordship then was) by a majority judgment held the power of resumption is the ultimate civil sanction and must therefore be a weapon of last resort. It was further held that it should be used with great caution and circumstances. This view was again followed by M.R. Agnihotri, J. in Shri Brij Bhushan v. The Union Territory Administration, Chandigarh and others, 1987(1) P.L.R. 598 : 1987 Recent Revenue Reports 286. Obviously the intent of the Legislature in enlacing Section 8A of the Act was to ensure regulated and prompt development and growth of the building activities for the creation of the Capital in the State of Punjab. After the creation of Union Territory of Chandigarh on Ist November, 1966, Chandigarh became capital of twin sister States i.e. the State of Pb. and Haryana. The Administration must be hard pressed in ensuring prompt construction activity in order to meet the requirement of both the States besides the growth of population. The future of the City whether it will go to Punjab or Haryana being uncertain, the construction of building activity must have come to a standstill as persons settled in this town were unsure about the future prospects of their business. Under these circumstances, it appears that the Authorities had overreacted on the situation and straightaway resorted to invoke the extreme action of resumption of booth site and forfeiture of the amount of the persons due to nonconstruction of the booth within the stipulated period.

The question then arises as to whether the parties have agreed mutually to complete the construction of the booth within a period of three months. The respondent had relied upon Clause 14 of the allotment letter in order to persuade the Court that the petitioner had agreed to complete the construction of the booth within a period of three months from the date of the issuance of the allotment letter. Clause 14 reads as under :

"The building on the site, in case of shopcumflat shall be completed within six months from the date of issue allotment letter and in case of booth or cheap booths the construction of building shall be completed within three months from the date of issue of allotment letter and no rebate shall be given even if the construction is completed earlier. You should hand over the vacant possession of your present premises to Bajwara Liquidation Inspector positively within the above stated period and pay rent upto the date of delivery of possession failing which the allotment of the alternative site will be considered as cancelled and amount already paid shall be forfeited and you will be ejected from both the sites with or without the help of the police."

A perusal of this clause leaves no doubt that the stress is more on the vacation of the site at Bajwara within a period of three months of the issuance of the allotment letter than on the construction of the booth at the site in dispute within this period as the authorities were more concerned with the planned development of the Bajwara market under the Bajwara Liquidation Scheme. There is no specific mention in this clause regarding the resumption of the site in dispute, although it pertains to the cancellation of the allotment. Keeping in view that the case of a person ousted from the site or shop resulting in uprooting his business cannot be equated with that of a person who had purchased the plot in an open auction there is no option but to conclude that the stipulation regarding the completion of the building within a period of three months and payment of Rs. 5874/ was certainly harsh and arbitrary, especially when it is not the case of the respondents that the petitioner failed to vacate the shop in Bajwara market within a period of three months of the issuance of the allotment letter. Under these circumstances, the provisions of Rule 12 of the Rules regarding the contractual aspect of the matter are not attracted to the case in hand, especially when the ordinary period for the completion of such buildings is five years under this rule. Rule 12 of the Rules runs as under :

"Time within which building is to be created : In the case of sale of site the transferee shall complete the building within five years from the date of issue of allotment order in accordance with the rules regulating the creation of buildings, unless otherwise it is mutually agreed upon that the construction shall be completed within any period less than five years. This time limit may be extended by the Estate Officer, if he is satisfied that the failure to complete the building within the said five years, or the period actually agreed upon, was due to causes beyond the control of the transferee."

This rule also provides for extension of time for completion of the construction by the Estate Officer on showing a sufficient cause for its nonconstruction. Unfortunately in the present case, the Estate Officer had not only issued notice under Section 8A of the Act just after the expiry of two years of the allotment of the site in dispute but had also passed the resumption order, copy Annexure P2, on November 6, 1978, i.e. well before the expiry of five years of the site on dispute.

The matter does not rest here, as the perusal of the resumption order, Annexure P2, of the Estate Officer clearly shows that even the substance of the verbal reply of the petitioner was not discussed while holding it as not satisfactory. According to Section 8A, the Estate Officer is required to consider the cause, if any, shown by the transferee in pursuance of a notice of resumption and any evidence produced by the transferee in support of his claim. It has been made further incumbent upon the Estate Officer to pass an order of resumption after recording reasons in writing. Thus, the impugned order to the Estate Officer is certainly violative of Section 8A of the Act, as the petitioner was not afforded an opportunity to lead evidence or file a written reply.

The Chief Administrater in his order Annexure P3 had simply extended the time for completion of the construction within period of six months without discussion whether the impugned order of the Estate Officer was legal or not on the ground of nonaffording the transferee full opportunity to show cause as to why he failed to complete the construction within the stipulated period. Under circumstances, the rejection of the revision petition of the petitioner by the Chief Administrater of Union Territory of Chandigarh vide Annexure P.4 on the ground of its being barred by time is not of much consequence, especially when the original order of the Estate Officer has no value in the eye of law being illegal and against the principles of natural justice.

For the foregoing reasons, the orders Annexures P2, P3 and P4 passed by the respondents are set aside by accepting this writ petition. In order to ensure the prompt construction of the booth, the petitioner is directed to move the Authorities for sanctioning of the plan etc. within a period of one month of this order. The Administration is directed to give him the sanctioned plan within a period of one month thereafter. The petitioner shall complete the construction within one year of the sanction of the plan. In case he fails to do, the Authorities shall be at liberty to institute resumption proceedings in accordance with law. There is, however, no order as to costs in view of the peculiar circumstances of the case.