High Court Punjab-Haryana High Court

Rakesh Kumar And Others vs Financial Commissioner/Revenue on 24 October, 2008

Punjab-Haryana High Court
Rakesh Kumar And Others vs Financial Commissioner/Revenue on 24 October, 2008
     IN THE HIGH COURT OF PUNJAB AND HARYANA AT

                          CHANDIGARH

                      C.W.P. No. 413 of 2008

              DATE OF DECISION: October 24, 2008

Rakesh Kumar and others

                                                        ...Petitioners

                               Versus

Financial Commissioner/Revenue, Punjab and others

                                                      ...Respondents

CORAM: HON'BLE MR. JUSTICE M.M. KUMAR

            HON'BLE MR. JUSTICE JORA SINGH

Present:    Mr. Arun Jain, Senior Advocate, with
            Mr. Amit Jain, Advocate,
            for the petitioners.

            Mr. Suvir Sehgal, Addl. AG, Punjab,
            for respondent Nos. 1 and 2.

            Mr. P.S. Dhaliwal, Advocate,
            for respondent Nos. 3 and 4.


1.    Whether Reporters of local papers may be             Yes
      allowed to see the judgment?

2.    To be referred to the Reporters or not?              Yes

3.    Whether the judgment should be reported in           Yes
      the Digest?

M.M. KUMAR, J.

The principal issue raised in the instant petition centers

around the power of respondent Nos. 3 and 4 to resume the property

purchased by the petitioners in the open auction under the terms and

conditions of the allotment letter as also under the Pepsu Townships
C.W.P. No. 413 of 2008 2

Development Board Disposal of Property Rules, 2003 (for brevity,

‘the Rules’)

Facts in brief are that the petitioners purchased site No.

106-A, Guru Nanak Colony, Rajpura, District Patiala, in the open

auction being the highest bidder. The offer of the petitioners was

accepted by the Pepsu Townships Development Board (for brevity,

‘the Board’). They deposited a sum of Rs. 6,32,000/- being 25% of

the sale price. The balance of Rs. 18,93,000/- was payable in six half

yearly instalments. On the issuance of acceptance letter on 19.4.2004

(P-1) they deposited the requisite charges required for sanction of

building plans, development charges, vide receipt dated 27.5.2004.

After sanction of the site plans they started raising construction on the

site in question. On 6.7.204, the Board issued a show cause notice to

the petitioners under Rule 22 of the Rules to show cause as to why

the building in question be not resumed alleging that the petitioners

had changed the land use of the site by constructing shops in

violation of the building plans approved by the Municipal Council,

Rajpura. The petitioners filed a detailed reply on 6.7.2004 (P-4).

However, the Board passed an order of resumption on 2.8.2004 (P-5),

which is the primary order challenged in the instant petition. The

appeal filed by the petitioners before the Divisional Commissioner,

Patiala Division, Patiala, was accepted and the order of resumption

dated 2.8.2004 (P-5) was set aside by holding that it was a non-

speaking order which has been passed in a hasty manner without

affording any opportunity to the petitioners to adduce evidence in

support of their plea reflected in their reply dated 6.7.2004 (P-4).
C.W.P. No. 413 of 2008 3

However, the Financial Commissioner-respondent No. 1 set aside the

order passed by the Divisional Commissioner by entertaining the

revision petition filed under Rule 13(2) of the Rules. The operative

part of the order dated 13.8.2007 (P-8) is being extracted for a ready

reference, which reads thus:-

“4. I have heard counsel for both the parties and gone

through the record of the lower courts. There is no

dispute that the plot No. 106-A in Guru Nanak Colony

Rajpura auctioned on 26.2.2004 is meant for residential

purpose only. The counsel for the petitioner has placed

on record photographs showing that the respondents

have constructed ten shops adjoining each other in a row,

whereas it is clearly provided under clause (iii) of

Acceptance Letter that the respondent will not use the

site for the purpose other than for which it has been sold

to them only for residential purpose. I fail to understand

why the Commissioner has ignored this sold proof of

photographs. I do not agree with the counsel for the

respondents that the Administrator passed resumption

order dated 02.08.04 without considering reply of the

respondents to the show cause notice. A cursory glance

over the Administrator’s order shows that the reply of

the respondents was very well considered before passing

final orders by Administrator. I, therefore, accept the

revision petition and set aside the impugned order dated

31.5.05 of the Commissioner and uphold the order dated
C.W.P. No. 413 of 2008 4

2.8.2004 of Administrator whereby of plot No. 106-A in

Guru Nanak Colony, Rajpura including structure built on

it was resumed and the initial amount deposited by the

respondents was forfeited.”

In the written statement filed by respondent Nos. 3 and 4

the stand taken is that there was flagrant violation of the letter of

allotment and the Rules. It has been pointed out that construction of

shops at the site was in clear violation of clause (iii) of the

Acceptance Letter (P-1). It has also been asserted that before passing

the order of resumption, the principles of natural justice have been

complied with by affording opportunity to the petitioners to show

cause. Respondent Nos. 3 and 4 have also placed reliance on the

photographs of the structure to substantiate their view that on the site

in question no residential accommodation has been constructed but

10 shops have been constructed there.

Mr. Arun Jain, learned Senior counsel for the petitioners

at the outset has made an offer that the petitioners undertake to

demolish the whole construction and to further construct the building

strictly in accordance with the sanctioned building plans. On merit,

learned counsel has argued that the order of resumption cannot be

passed so easily and if there was any violation of sanctioned building

plans then notice for demolition of illegal structure should have been

issued. He has also submitted that the respondents were under

obligation to adopt the fair procedure before resuming the property of

the petitioners and passing order of forfeiture of the amount. In

support of his submission, learned counsel has placed reliance on a
C.W.P. No. 413 of 2008 5

Full Bench judgment of this Court in the case of Ram Puri v. Chief

Commissioner, Chandigarh, AIR 1982 P.& H. 301. He has

maintained that the power of resumption is only a remedial power

and, therefore, this power should not be used arbitrarily and

whimsically. Mr. Jain has also submitted that for a small violation

the extreme step of resumption would be wholly unwarranted and

violate the principles of proportionality. He has then placed reliance

on Rule 22 of the Rules which does not provide for resumption of the

site on the ground of violation of site plans.

Mr. P.S. Dhaliwal, learned counsel for the Board has

supported the impugned orders and argued that in the allotment letter

a number of conditions have been laid down. According to the

learned counsel clause (iii) of the allotment letter clearly stipulates

that the petitioners were not to use the site in question for a purpose

other than for which it has been sold to them. He has then placed

reliance on clause (ix) dealing with resumption of property and

argued that resumption can be resorted to not only for non-payment

of dues to the Board in accordance with the Rules but also in case of

violation of any provision of the Pepsu Townships Development

Board Act, 1954 (for brevity, ‘the Act’). In such a case the Board

could refund the amount by forfeiting initial deposit and recover a

penalty @ 15% per annum.

After hearing learned counsel for the parties and perusal

of the paper book with their able assistance we are of the considered

view that this petition deserves to succeed. The petitioners had

succeeded in the Open Auction for purchase of site No. 106-A, Guru
C.W.P. No. 413 of 2008 6

Nanak Colony, Rajpura, District Patiala, for a sum of Rs. 25,25,000/-

on 19.4.2004. They have already paid substantial amount. They

commence raising of construction which is found to be in violation of

the site plans sanctioned by the Municipal Council. The site plan was

sanctioned on 10.6.2004 and the petitioners started raising

construction thereafter. It was on 6.7.2004 that a show cause notice

was issued to the petitioners (P-3) for resumption of the site by citing

violation of Rule 22 of the Rules. It was also alleged that the

petitioners have violated condition No. (iii) of the letter of acceptance

by changing the use of the site. Accordingly, order of resumption

was passed on 2.8.2004 (P-5) by exercising power under Rule 22 of

the Rules and also the initial amount deposited by the petitioners was

forfeited. It would be appropriate to read Rule 22 of the Rules and

condition No. (iii) of the letter of acceptance, which are as under:-

“Rule 22 of the Rules:

22. Resumption of property.- In case, the transferee

fails to make payments due to the Board in the manner as

specified in these rules or violates any provision of the

Act or these rules, such property may be resumed by the

Board. The Board shall refund the amount, which may

have been made by the transferee after forfeiting initial

deposit and recovering a penalty at the rate of fifteen per

cent per annum on defaulted amount. If for any reason

the amount deposited by the transferee falls short, the

same shall be recovered from the transferee as arrears of

land revenue.”

C.W.P. No. 413 of 2008 7

xxx xxx xxx

Condition No. (iii) of letter of acceptance:

“(iii) Use of site: You will not use the site for a purpose

other than for which it has been sold to him and

shall keep the property in good condition.”

A perusal of Rule 22 of the Rules would show that in

case an allottee fails to make payment due to the Board then the

property allotted to him can be resumed by the Board. Likewise, if

there is a violation of any of the conditions of allotment then

resumption can be made. The provision regarding resumption can be

invoked as per clause (ix) of the letter of acceptance, which reads

thus:-

“(ix) Resumption of Property:- In case you fail to

make payment due to the board in the manner as

specified in the Pepsu Townships Development

Board Disposal of Property Rules 2003 or violate

any provision of the Act or these rules such

property may be resumed by the Board. The

Board will refund the amount which may have

been made by you after forfeiting initial deposit

and recovering a penalty at the rate of fifteen

percent per annum on defaulted amount. If for any

reasons the amount deposited by you falls short,

the same shall be recovered from you as arrears of

land revenue.”

C.W.P. No. 413 of 2008 8

The case of the respondents is that since there was

violation of clause (iii) as the use of the site for a purpose other than

for which it was sold, has been changed it was liable to be resumed.

In somewhat similar circumstances a Full Bench of this

Court considered the provisions of Section 8-A of the Capital of

Punjab (Development and Regulation) Act, 1952 (for brevity, ‘the

1952 Act’), which clothed the Estate Officer with the power to

resume building or site and to forfeit the money paid by the allottee.

Section 8-A of the 1952 Act in sum and substance postulate a similar

situation as has been provided by Rule 22 of the Rules. The Full

Bench came to the conclusion that although it does not violate

fundamental rights of a citizen guaranteed under Article 19(1)(f) of

the Constitution, however, the same has to be used as a measure of

last resort (See paras 86 and 87 of the judgment). A similar issued

has arisen before Hon’ble the Supreme Court in the case of Teri Oat

Estates (P) Ltd. v. U.T. Chandigarh, (2004) 2 SCC 130. In that

case also the view taken by the Full Bench of this Court in Ram

Puri’s case (supra) has been approved. In para 57 it has been

observed that the drastic step of resumption should be taken as a last

resort. Hon’ble the Supreme Court also placed reliance on the

principle of proportionality which have been applied to legislative

and administrative action in India and went on to observe in para 49

as under:-

48. Ever since 1952, the principle of proportionality

has been applied vigorously to legislative and

administrative action in India. While dealing with the
C.W.P. No. 413 of 2008 9

validity of legislation infringing fundamental freedoms

enumerated in Article 19(1) of the Constitution of India,

this Court had occasion to consider whether the

restrictions imposed by legislation were disproportionate

to the situation and were not the least restrictive of the

choices. In cases where such legislation is made and the

restrictions are reasonable; yet, if the statute concerned

permitted administrative authorities to exercise power or

discretion while imposing restrictions in individual

situations, question frequently arises whether a wrong

choice is made by the administrator for imposing the

restriction or whether the administrator has not properly

balanced the fundamental right and the need for the

restriction or whether he has imposed the least of the

restrictions or the reasonable quantum of restrictions etc.

in such cases, the administrative action in our country

has to be tested on the principle of proportionality, just

as it is done in the case of main legislation. This, in fact,

is being done by the courts. Administrative action in

India affecting the Fundamental Freedoms has always

been tested on the anvil of the proportionality in the last

50 years even though it has not been expressly stated that

the principle that is applied in the proportionality

principle. [See Om Kumar v Union of India (2001) 2

SCC 386)].”

C.W.P. No. 413 of 2008 10

As a sequel to the above discussion, this petition is

allowed. The impugned orders dated 2.8.2004 (P-5) and 13.8.2007

(P-8) are set aside. Consequently the Site No. 106-A, Guru Nanak

Colony, Rajpura, District Patiala, is restored back to the petitioners.

The petitioners as per their undertaking given through their counsel,

shall demolish the illegal construction and raise construction of the

building strictly in accordance with building plans sanctioned by the

Municipal Council, Rajpura within a period of six months. The

instalments payable by the petitioners are over due as they were to

pay the balance amount in six half yearly instalments commencing

from 2004. The petitioners shall make the payment of balance

amount in four half yearly instalments with simple interest at the rate

of 8% per annum from the date amount was payable in 2004 till the

date of payment.

The writ petition stands disposed of in the above terms.




                                             (M.M. KUMAR)
                                                JUDGE




                                              (JORA SINGH)
October 24, 2008                                 JUDGE
Pkapoor