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CASE NO.: Appeal (civil)  2577 of 2004

PETITIONER: Jyotsna Kohli    

RESPONDENT: Union Territory of Chandigarh &   Ors.

DATE OF JUDGMENT: 20/04/2004

BENCH: S. Rajendra Babu & P. Venkatarama Reddi.

JUDGMENT: J U D G M E N T

[Arising out of SLP (C) No. 19095 of 2001]

P. Venkatarama Reddi, J.         Leave granted.         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.               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.         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.         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

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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."

       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 \026\026 (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.

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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."

       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.         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

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the case and we find no ground to interfere."

       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.       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.         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.         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.    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.  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 misuser 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

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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.       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.         In the circumstances, the ends of justice will be met by  directing the respondent \026 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. 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. The appeal is disposed of accordingly without costs.