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PETITIONER: CHANDIGARH ADMINISTRATION THROUGH THEESTATE OFFICER, UNION T

       Vs.

RESPONDENT: M/S. JOHNSON PAINTS & VARNISH CO.

DATE OF JUDGMENT:       22/03/1996

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. G.B. PATTANAIK (J)

CITATION:  JT 1996 (4)   375        1996 SCALE  (3)680

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      Leave granted.      This appeal  by special  leave arises from the order of the High  Court of  Punjab and  Haryana in Writ Petition No. 2677/93, dated November 4, 1993. The admitted facts are that the site  bearing No. 187-B, Industrial area, Chandigarh was alloted to  his. Johnson Paints & Varnish Co. For industrial use. The  allottee was  Kulraj Singh Paul, S/o Sardar Gurbax Singh. The  allotment came  to be made in the year 1965 at a concessional  rate   of  Rs.10/-   per  sq.yd.  Default  was committed in  payment of  the instalments. Consequently, the site was  resumed on  April 26,  1967. On with penal amounts prescribed under  the Rules  the property  was  handed  over again to  the  respondent.  Thereafter,  since  it  was  not constructed, the  property was  again resumed  in  the  year 1981. The  respondent filed  the writ  petition,  which  was dismissed. LPA  was also  dismissed and  when  the  SLP  was filed, this Court confirmed the order of dismissal. Thus the entitlement  to   the  allotment   became  final   and   the controversy became quiteous.      Subsequently, the respondent filed an application under Rule 11-D  of the  Chandigarh (Sale  of Sites  and Building) Rules 1960 (For short, the ’Rules’). Rule ll-D {i) envisages that where  a site has been resumed under Section 8-A of Act 27 of  1952 for  any reason,  the Estate  Officer may, on an application, retransfer the site to the out-going transferee on payment  of an amount equal to 10 per cent of the premium originally  payable  for  such  property  or  1/3rd  of  the difference between  the price  originally paid and its value at the  time when  the application  for retransfer  is made, whichever is  more. The  other clauses  are not relevant for the purpose  of this  case including the proviso which bears relevance provided sub-clause (l) of Rule 11-D is satisfied. Hence they  are omitted.  The Estate  Officer had refused to make  retransfer of allotment and the petition was rejected. Consequently, the  respondent filed  a writ  petition in the

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High Court  which was  allowed directing  the  appellant  to allot the  site to  the  respondent.  Thus  this  appeal  by special leave.      Shri Arun Jaitley, learned senior counsel appearing for the appellant,  contended that  it  would  appear  from  the circumstances in  this case that the respondent Kulraj Singh Paul is  only acting  for the  benefit of Tejpal Singh Brar, Narindra Brar  and Gurinder Brar, ss/o Sardar Gursewak Singh Brar r/o    5997,  Sector  18,  Chandigarh.  Therefore,  the respondent   is not  a transferee. The Estate Officer is not obliged to  order retransfer  to the  allottee Kulraj  Singh Paul. In  support thereof,  he read  out the recitals in the general power  of attorney,  the conditions of allotment and also the  recitals in  the Will  purported  to  have    been executed by  Kulraj singh  Paul in  favour of  the aforesaid three individuals.  Shri M.L.  Verma, learned senior counsel appearing for  the respondent  contended that  the condition precedent for rejection of the claim is that the third party right is  created by  Kulraj Singh  Paul in  favour of third parties. There  is no  evidence to  establish that any third party rights  have been  effected by  Kulraj Singh paul. The original order  of rejection  does not  contain any reasons. The High Court has given valid reasons in directing re-allotment under Rule ll-D of the Rules. Therefore, it is not a case warranting interference.      The only  question is:  whether the  High  Court    was justified in  directing re-allotment  of the industrial site to  the   respondent?  After  looking  into  the  facts  and circumstances and  the material  before us,  we are  of  the considered view  that the  High Court  was not  justified in giving the direction. It would appear that Kulraj Singh Paul is not  acting for himself as a transferee. He appears to be acting for  and on  behalf of  Shri Tej  Paul Brar, Narinder Brar and Gurinder Brar, ss/o Shri Gursewak Singh Brar. It is an submitted fact that Kulraj Singh Paul is now staying with Gurusewak Singh Brar. If he really is staying as such, there is no  need for  him to  mention in  his rejoinder affidavit filed in  this Court  his  factory  number  instead  of  his residential number  as residence.  In the Power of Attorney, one  would   generally  come  across  giving  the  power  to specified individual  to act  for and    on  behalf  of  the principal. It  would be  redundant to give power of attorney in favour of three persons instead of a single individual to deal with  a single  industrial site  which is a the subject matter of  the proceedings.  Unless there is a right created in him,  there would  be no  need  to  execute  a  power  of attorney of  the very  self-same property. We can understand if there is any allotment made and he became the owner; then he may legitimately be entitled to entrust its management to any of  his agents  in whom he has confidence. It is not the situation available  under the  record. It  would further be clear that  a Will  is purported  to be created in favour of three parties, namely, the self-same three persons. When the Will and the General Power of Attorney are read together, it would be clear that he is purporting to act not for himself, but on  behalf of  the aforesaid  three persons mentioned in the General  Power of  Attorney who  do not appear to have a confidence in  each another  to  obtain  the  property  from Kulraj Singh.  The entitlement  appears to  be on  behalf of their joint  family. Although  it was  to pre-empt  possible claim by  any one  as his  individual property, the power of attorney was  executed in  their favour,  the  question  is: whether the  appellant is required to regrant the industrial site to the said person?      It is  seen that  once the  original  allotment  stands

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cancelled and  the resumption became final, the allottee was no right  in the  allotted site.  Rule ll-D  deals with only discretionary power  given to  the Estate  Officer. The only right the  erstwhile outgoing  transferee had was to make an application. On  making the  application, he  has to satisfy the criteria  laid down  under the  Rule. We  doubt the very bona fides  in introducing  Rule ll-D to provide a back door entry from  the lost  rights. But on the facts in this case, it is  not necessary  to go  into the  wisdom of introducing Rule ll-D.  Suffice it  to state that it does not clothe him with any  right to  the allotment  as of  right. It  being a discretionary benefit  sought to  be given  to the  outgoing transferee  in  the  language  of  the  rule,  the  outgoing transferee must,  in fact  and  in  reality,  be  the  real, genuine and  bona fide  transferee and  for  him  alone  the benefit may be given for consideration under Rule 11.      On the  facts in  this case  and for  the circumstances narrated above, it is clear that he is not a transferee. But he is acting for an on behalf of the aforesaid three person. Under those  circumstances, the  High Court was wholly wrong in giving  the direction  to the  appellant to  exercise the power under Rule ll-D and to reallot the site.      The appeal is accordingly allowed with costs quantified at Rs. 10,000/-.