JUDGMENT
G.S. Singhvi, J.
1. This is a petition for quashing the orders, Annexures P3, P13, P14 and P15 as well as the notice issued to the petitioner under Section 4(i) of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (hereinafter referred to as the ‘Act of 1971’) and for issuance of a writ of mandamus to the respondents to regularise the construction made by the petitioner over the disputed site.
FACTS:
2. An Industrial Plot measuring 528.125 square yards was allotted to Messrs Singhson, Radio and Sound Engineers, Chandigarh on 4.2.1967 for a sum of Rs. 4,230/-. In accordance with the conditions of allotment incorporated in the letter of allotment issued on 4.2.1967 the allottee was required to deposit 25% of the price before possession of the site could be given to it by the Estate Officer. The balance price was payable in lumpsum within 30 days without interest or in three equated instalments, with interest @ 6% per annum. This first instalment was payable at the expiry of one year from 4.2.1967. The allottee was also required to construct the building in accordance with the conditions laid down in the Zoning Plan and Architectural Control Sheet. The construction was to be completed within a period of one year from the date of allotment. As the allottee did not construct the building within the time specified in the allotment letter, notice dated 23.9.1967 (Annexure P2) was issued by the Assistant Estate Officer calling upon it to take steps for completion of the factory building. This having not been complied with the Estate Officer directed the resumption of the site vide order dated 27.7.1968 (Annexure P3) issued by him in exercise of the powers under Section 9 of the Capital of Punjab (Development and Regulation) Act, 1952 (for short ‘Act of 1952’). The appeal filed by the petitioner Under Section 10 of the Act of 1952 was dismissed by the Chief Administrator Chandigarh on 19.9.1968 and the revision petition filed by him was rejected by the Chief Commissioner, Chandigarh on 29.11.1969. Thereafter the petitioner filed six review petitions, none of which was maintainable under the Act of 1952 or the rules framed thereunder. All the review petitions were rejected on the following dates :-
First review petition was dismissed on 27.11.1971;
Second review petition was dismissed on 29.7.1971;
Third review petition was dismissed on 7.3.1973;
Fourth review petition was dismissed on 22.8.1973;
Fifth review petition was dismissed on 22.6.1979; and
Sixth review petition was dismissed on 8.2.1980.
In the meantime, proceedings were initiated against the petitioner under the Act of 1971. The Estate Officer issued notice dated 26.9.1977 (Annexure P13). However, no final order was passed by the Competent Authority under the Act of 1971.
Notwithstanding the fact that the order of resumption was passed as early as on 27.7.1968 (Annexure P3) and the appeal as well as the revision petition were dismissed on 19.9.1968 and 29.11.1969 respectively, the allottee continued to remain in unauthorised possession of the site. He also made certain constructions, some of which was found to be contrary to the Building Rules framed by the Administration. On 28.11.1995, the General Power of Attorney holder of the petitioner informed the Estate Officer that he had carried out the demolition of the unauthorised construction. After the lapse of another seven months he instituted the present petition and prayed for quashing of the orders, Annexures P3, P13, P14 and P15 and for regularisation of the construction made by him.
3. The main ground on which the petitioner has sought the relief is that the construction has already been made over the site in dispute in accordance with the building plan submitted to the Chandigarh Administration and there is no justification to now dispossess him on the basis of order Annexure P3.
4. The respondents have raised the objection of delay and laches. According to them, the writ petition filed in the year 1996 for challenging the orders passed in 1968-69 should not be entertained and at the most the petitioner may avail the remedy available to him by filing application under Rule 11-D of Chandigarh Sale of Sites and Buildings Rules, 1960.
5. The first contention of Mr. H.S. Toor, the learned counsel for the petitioner is that the order of resumption passed by the Estate Officer on 27.7.1968 should be declared as void because Section 9 of the Act of 1952 under which that order was passed has been struck down by the Supreme Court in Jagdish Chand Radhey Sham v. State of Punjab, AIR 1972 S.C. 2587. Learned counsel argued that even if the writ petition is held to be belated as against the order dated 27.7.1968, the petitioner should be given relief because the very source of power with reference to which the Estate Officer passed the order of resumption has been nullified by the Supreme Court. The second contention urged by Shri Toor is that even if the impugned orders are held to be beyond the pale of challenge on the ground of delay and laches, the respondents should be restrained from giving effect to the order of resumption after long lapse of time. On the other hand Shri Subhash Goyal submitted that the writ petition should be dismissed on the ground of delay and laches. Learned counsel pointed out that as against the original order and the appellate order, the writ petition has been filed after almost 28 years and as against the revisional order, the writ is belated by 27 years and in the absence of any explanation by the petitioner for such a long delay, his plea should be rejected solely on the ground of laches.
6. We find substantial merit in the submission of Shri Goyal and we are of the considered view that the petitioner is guilty of Laches. There is no dispute that the original order of resumption was passed by the Estate Officer 28 years ago. The appeal filed by the petitioner was also dismissed by the Chief Administrator almost 28 years ago. His revision petition was rejected by the Chief Commissioner 27 years before the filing of the writ petition. However, the petitioner did not, bother to challenge these orders for more than two decades and a half. Instead, he felt satisfied by filing review petitions, one after the other, all of which were dismissed as not maintainable. In our view, the petitioner cannot take advantage of the time spent by him in filing wholly untenable review petitions as also the time consumed in the decision of review petitions, because the Act of 1952 and the rules framed thereunder do not contain any provision for filing of review petition. We, therefore, hold that the unexplained delay of 28 years in filing of the writ petition qua the order, Annexure P3 is, sufficient to non-suit the petitioner.
7. Even if we were to adopt a benevolent approach and accept the petitioner’s explanation that he was pursuing the remedy of review till 8.2.1980, it is not possible to over-look the delay of another 16 years because the petitioner has not disclosed as to what he has been doing during the time gap of 16 years between the dismissal of the 6th review petition and the filing of the writ petition. Total absence of any explanation regarding this delay leads to an irresistible inference that the petitioner slept over the matter for over 16 years. He woke up from slumber only when the respondents took active steps to physically dispossess him. However, the petitioner cannot take advantage of the negligence or lapse of the competent authority to take steps for execution of the order, Annexure P3. The failure of the executive authorities to discharge their statutory duties cannot be a ground for overlooking the extra-ordinary delay in the filing of the writ petition. The petitioner cannot, at this stage, complain against the alleged illegality in the orders passed by the Estate Officer 28 years ago. We, therefore, hold that the petition suffers from inordinate delay and the petitioner is guilty of laches.
8. The plea of Shri Toor that the order of resumption should be treated as nullity on account of striking down of Section 9 of the Act of 1952 and relief should be given to the petitioner notwithstanding the fact that the writ petition has been filed after 28 years of the passing of the order of resumption has no substance whatsoever. Admittedly, the petitioner did not challenge the vires of Section 9 of 1952 Act. Rather, he felt satisfied by pursuing the remedies of appeal and revision and by filing untenable review petitions. At no point of time he pleaded that Section 9 of 1952 Act was ultra vires to the provision of the Constitution. Therefore, he cannot take advantage of the judgment of the Supreme Court in Jagdish Chand Radhey Sham v. State of Punjab (supra), and as the petitioner has failed to convince us to nullify the order of resumption on other grounds, he cannot get any relief merely because after about 4 years of the passing of the order of resumption and rejection of appeal and after about 3 years of the dismissal of revision petition, the Apex Court struck down Section 9 of the Act. The petitioner cannot get relief in the form of an injunction directing the respondents not to dispossess him till he succeeds in getting the relief of declaration of invalidity qua the order of resumption. The Court cannot give relief to the petitioner by assuming that the order of resumption is void.
9. We are further of the view that the striking down of Section 9 by the Apex Court in M/s. Jagdish Chand’s case (supra) does not have the effect of invalidating the actions taken and the orders passed by the competent authorities under Section 9 prior to the pronouncement of verdict by the Supreme Court. The judgment in Jagdish Chand’s case (supra) could not have the effect of automatic invalidation of all the proceedings taken under Section 9 qua. the persons who were not parties before the Supreme Court nor can it have the effect of nullifying the orders which attained finality. There is nothing in the judgment of Jagdish Chand’s case (supra) to show that the Apex Court intended to invalidate all the orders passed by the Competent Authorities prior to the date of its judgment. Therefore, the petitioner cannot take shelter of that judgment. The theory of prospective overruling/prospective effect of the judgment of the Supreme Court has been considered and applied in Golakh Nath v. State of Punjab, AIR 1967 S.C. 1643 and Managing Director, E.C.I.L. v. B. Karunakar, A.I.R. 1994 S.C. 1074. In Golakh Nath’s case (supra) majority of the eleven Judges Bench of the Supreme, Court held that its decision to overrule Shankri Parsad v. Union of India, A.I.R. 1951 S.C. 458 and Sajjan Singh v. State of Rajasthan, AIR 1965 S.C. 845 will apply prospectivcly and will not affect the pre-existing law. In Managing Director, E.C.I.L. v. B. Karunakar (supra), a Constitution Bench held that the judgment rendered by a three Judges Bench in Union of India v. Mohammad Ramzan Khan, AIR 1991 S.C. 471 holding that the supply of copy of enquiry report to the delinquent is necessary before punishing him even after the amendment of Article 311(2) will apply prospectively and will not affect the validity of the orders passed prior to 20th November, 1990, i.e. the date on which Mohammad Ramzan Khan’s case came to be decided.
10. Reference may also be made to the Constitution Bench decision in Tarlok Chand Moti Chand v. H.B. Munshi, A.I.R. 1970 S.C. 898. While rejecting the claim of the petitioner for the refund of the tax deposited by it on the ground that the law under which the tax had been deposited was subsequently declared unconstitutional, the majority of the Constitution Bench held that the judgment rendered in the case of some other person by which the provisions of law under which the recovery had been made from the petitioner were declared unconstitutional cannot be made the basis for directing the refund of the amount to the petitioner. Expressing his opinion on the subject, Hidayatullah, C.J., observed
“The petitioner moved the High Court for relief on the ground that the recovery from him was unconstitutional. He set out a number of grounds but did not set out the ground on which ultimately in another case recovery was struck down by this Court. That ground was that the provisions of the Act were unconstitutional. The question is: can the petitioner in this case take advantage, after a lapse of a number of years, of the decision of this Court? He moved the High Court but did not come up in appeal to this Court. His contention is that the ground on which his petition was dismissed was different and the ground on which the statute was struck down was not within his knowledge and therefore he did not know of it and pursue it in this Court. To that I answer that law will presume that he knew the exact ground of unconstitutionality. Everybody is presumed to know the law. It was his duty to have brought the matter before this Court for consideration. In any event, having set the machinery of law in motion he cannot abandon it to resume it after a number of years, because another person more adventurous than he in his turn got the statute declared unconstitutional and got a favourable decision. If I were to hold otherwise, then the decision of the High Court in any case once adjudicated upon and acquiesced in may be questioned in a fresh litigation revived only with the argument that the correct position was not known to the petitioner at the time when he abandoned his own litigation. I agree with the opinion of my brethren Bachawat and Mitter, JJ. that there is no question here of a mistake of law entitling the petitioner to invoke analogy of the Article in the Limitation Act. The grounds on which he moved the Court might well have impressed this Court which might also have decided the question of the unconstitutionality of the Act as was done in the subsequent litigation by another party. The present petitioner should have taken the right ground in the High Court and taken it in appeal to this Court after the High Court decided against it. Not having done so and having abandoned his own litigation years ago, I do not think that this Court should apply the analogy of the Article in the Limitation Act and give him the relief now.”
11. In Mafatlal Industries Ltd. etc. etc. v. Union of India etc. etc., JT. 1996(11) SC 283, a nine Judges Bench of the Supreme Court examined the various facets of the claim of refund made by an assessee in the context of Section 11-B of the Central Excise and Customs Law (Amendment) Act, 1991, and Section 72 of the Contract Act, 1872 as well as the provisions of the Limitation Act, 1963. By a majority of 6:3, the Supreme Court upheld the constitutional validity of Section 11-B. The majority judgment also approved the observations made by Hidayatullah, C.J. in Tarlok Chand Moti Chand v. H.B. Munshi (supra), which have been quoted above.
12. In view of the above legal position, we reject the plea of Shri Toor that the order of resumption passed in the case of the petitioner should be treated as nullity in view of the striking down of Section 9 of the Act of 1952 in Jagdish Chand Radhey Sham v. State of Punjab (supra).
13. There is also no substance in the argument of Shri Toor that the respondents should be directed to regularise the construction made by the petitioner. Admittedly, the construction was made after the passing of the order of resumption and dismissal of his appeal as well as the revision petition. What the petitioner wants is to take advantage of his own illegal act. in our opinion, he is not entitled to do so. The plot in question vested in the respondents immediately on the passing of the order of resumption, In any case, vesting was complete with the dismissal of the revision petition filed by the petitioner. The petitioner cannot take advantage of his own wrong. Hence we reject the plea of the petitioner for regularisation of the construction made by him.
14. For the reasons mentioned above, we hold that the challenge to the orders, Annexures P3, P13, P14, and P15 is without substance and the writ petition is liable to be dismissed. The prayer made by the petitioner for directing the respondents to regularise the construction also deserves to be rejected. However, having regard to the fact that the petitioner has spent substantial money for raising the construction over the disputed land, we deem it proper to give one opportunity to the petitioner to retain the possession by making an application for re-allotment of the plot, subject to the fulfillment of conditions laid down by the Administration. Accordingly, we dismiss the writ petition subject to the following directions :-
(i) the petitioner may apply to the respondents for re-allotment of plot and seek regularisation of his possession and construction on payment of prevailing market price fixed by the administration for allotment of similar plots;
(ii) if the petitioner makes such an application within two months, then the respondents shall consider the same sympathetically and decide it within next one month. This shall be subject to the payment of price by the petitioner in terms of part (i) above;
(iii) in case the petitioner applies for re-allotment of the plot, then the status quo regarding his possession shall be maintained for a period of two months;
(iv) in the event of re-allotment of plot to the petitioner, the competent authority shall sanction the building plan in accordance with rules and regulation so that the construction made by the petitioner gets regularised,
(v) in case the petitioner fails to apply for re-allotment within one month, then the competent authority shall take appropriate steps for securing possession of the property in dispute