Sardar Mender Singh And Another vs Union Territory Of Chandigarh And ...

on 13 August, 2009

Punjab-Haryana High Court

Sardar Mender Singh And Another vs Union Territory Of Chandigarh And ... on 13 August, 2009
CIVIL WRIT PETITION NO. 10773 OF 2009

-1-

IN THE HIGH COURT OF PUNJAB AND HARYANA AT

CHANDIGARH.

DATE OF DECISION : August 13, 2009.

Parties Name
Sardar Mender Singh and another
...PETITIONERS
VERSUS
Union Territory of Chandigarh and others
...RESPONDENTS

CORAM:

HON'BLE MR. JUSTICE JASBIR SINGH

PRESENT: Mr. Vijay Kumar Jindal,

Advocate, for the petitioner.

JASBIR SINGH, J. (oral)

ORDER:

In this writ petition, it is prayer of the petitioners that a writ of certiorari be issued to quash order
dated July 25, 1978 (P-2) directing resumption of SCO No. 47-48, Sector 17-C, Chandigarh. Further
challenge is to the order, passed on October 8, 2008 (P-3), dismissing appeal , filed by the
petitioners, and also to order dated May 20, 2009 (P-4) dismissing revision petition, filed by the
petitioners.
Petitioners purchased the property in question in the month of October, 1970. When sale deed was
executed, petitioners were residents of Malaysia. As per admitted case, petitioners came in
possession of the property in dispute through their tenants. After purchase of the property in CIVIL
WRIT PETITION NO. 10773 OF 2009 -2- the year 1970, petitioners started receiving the lease
amount from four tenants, who were sitting on the ground floor of SCO No. 47-48, Sector 17- C,
Chandigarh. Against terms and conditions of the allotment and the by- laws, the ground floor was
partitioned into four parts. Noting above said violation of the sanctioned building plan, a notice was
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Sardar Mender Singh And Another vs Union Territory Of Chandigarh And ... on 13 August, 2009

sent to the petitioners for making material changes in the building in violation of the provisions of
Capital of Punjab (Development and Regulations) Building Rules, 1952. When after service none
appeared, vide order dated July 25, 1978, by invoking the provisions of Section 8-A of the Rules, the
site was resumed and 10% amount of the price of the plot was ordered to be forfeited.
As per admission of the petitioners, even after passing of order of resumption in the year 1978, he
continued to receive the rent amount from the four tenants sitting on the ground floor contrary to
the provisions of the Rules.
It is case of the petitioners that they agreed to sell the property in dispute to Raj Bansal etc. on
March 14, 2005. Sale deed was to be executed on or before April 30, 2005, or within ten days from
the date of obtaining no objection certificate, which ever was latter. Petitioner moved an application
to get 'no objection certificate', which was declined on the ground that the property stood resumed.
It is further case of the petitioners that on moving above said application, their tenants stopped
making payment of lease amount, which is more than Rs. 45,00,000/-. Petitioner had filed an
ejectment application, against the tenants, for their ejectment for non-payment of rent etc. Record
reveals that the petitioners filed an appeal against the order dated July 25, 1978, which was
dismissed on October 8, 2008. Their CIVIL WRIT PETITION NO. 10773 OF 2009 -3- revision
petition also met the same fate on May 20, 2009. Hence this writ petition.
Counsel for the petitioners has vehemently contended that before passing impugned orders of
resumption, no opportunity of hearing was given to the petitioners. In view of that, appellate and
revisional authorities were not justified in dismissing appeal and revision , filed by the petitioners.
By making reference to the reports of the Process Serving Agency (P-5 and P-6), counsel contended
that notice issued before passing resumption order was never served upon the petitioners.
Petitioners at the relevant time were residing in Malaysia and this fact was within notice of the
officer, who passed the impugned order. Counsel further argued that it is a case of discrimination
with the petitioners. Regarding many other buildings, which were partitioned, contrary to the
sanctioned building plan, violations were condoned and resumption orders were withdrawn. To
claim relief, heavy reliance has been placed upon a Division Bench judgment of this Court in M/s.
Rajinder Kumar and Sons v. Union Territory of Chandigarh, AIR 2000 Punjab and Haryana 297. A
prayer has been made to set aside the orders under challenge and restoration of the site to the
petitioners.
Taking note of conduct of the petitioners, this Court is of the view that no relief can be granted to
them in this case. For progress in the Society, rule of law should prevail. Supremacy of law must be
accepted by all. A feeling should not come in the mind of the people that they can play with law and
thereafter by taking shelter under technicalities, can go scot free without any harm. The petitioners
have shown a scant respect for the terms and conditions of the allotment letter and provisions of the
rules, CIVIL WRIT PETITION NO. 10773 OF 2009 -4- under which site was allotted and purchased
by them. As per allotment letter, issued in favour of the original allottee (P-7), fragmentation of the
site was not permitted. It was further stipulated that in case of failure of the allottee, to comply with
any of the conditions of sale, the site shall be resumed and the whole amount paid, shall be forfeited
to the Government. It is apparent from the contents of the sale deed (P-8) that the site was
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Sardar Mender Singh And Another vs Union Territory Of Chandigarh And ... on 13 August, 2009

purchased by the petitioners subject to all the terms and conditions, which were imposed in the
allotment letter. After purchase of the property in the year 1970, showing total disrespect to the law,
petitioners started getting rent from the four tenants , who were made to sit on the ground floor
after making partition of the same, contrary to the rules. Above said act appears to have been done
to get more money. Had the property been let out as one unit, it was bound to fetch less amount of
money towards rent. To fill their pocket, the petitioners committed violation of the law and inducted
four tenants on the ground floor. Admittedly, their action was contrary to the sanctioned building
plan and provisions of the Act and the Rules, which they were bound to comply in terms of the
allotment letter and stipulations made in the sale deed. Their site was resumed in the year 1978. In
this writ petition, they have specifically stated that they were owners in possession through their
tenants. The tenants continued to pay rent to them till March, 2005. If that is so, petitioners'
showing ignorance to passing of the resumption order appears to be an after-thought.
Not only this, as alleged by counsel for the petitioners, order of resumption (P-2) was not an ex parte
order. When building violation was noticed by the authorities, a notice was sent to the petitioners at
SCO No. 47-48, Sector 17-C, Chandigarh. In the service report dated June 16, 1978, CIVIL WRIT
PETITION NO. 10773 OF 2009 -5- it was reported that a Process Server had visited the site and the
tenants told him that petitioner Mender Singh was residing out of India. Then the permission was
sought to serve the petitioners through pasting notice on the premises in question and accordingly
as per report dated June 23, 1978, the notice was got pasted at the site in question.
This Court is of the view that the service is perfectly as per law. As per Rule 2 of the Capital of
Punjab (Development and Regulations ) (Service of Notice) Rules, 1974, it is permissible that if the
person concerned is not in Chandigarh, then service can be effected by affixing a copy of the notice
on some conspicuous place or near the building or the site to which the notice relates. Admittedly,
petitioners were not residing in India and as per Rules, service by pasting a notice at the site is
perfectly justified. Not only this, in Process Server's report dated June 16, 1978, it is coming out that
the Process Server had met the tenants of the petitioners and they had informed him that the
petitioners were residing in Malaysia. It is specific case of the petitioners that they continued to
receive rent from their tenants upto March, 2005. The petitioners have nowhere stated that after
purchase of the property in the year 1970, they had never visited this country and had never gone to
the site in question. If they had been receiving rent continuously from the tenants and their relations
were not strained, then it can reasonably be presumed that the tenants might have told the
petitioners regarding notice of resumption from the Estate Officer.
Be that as it may, as per admission of the petitioners, ground floor of the site was partitioned into
four parts. If that was so, the petitioners would not have been in a position to put up any defence, to
the notice issued by the authorities. Admittedly, in the year 1978, there was no CIVIL WRIT
PETITION NO. 10773 OF 2009 -6- rule in existence to compound the violations regarding partition
of the site, done contrary to the sanctioned building plan. It appears that the petitioners took a
chance, continued to wait so that if in future any change is made in the Rules, they may get benefit
of the same. Such like violators of law cannot be encouraged by giving them benefit of the rules and
regulations, which came subsequent to the passing of the order against them. When site was
resumed, there was only one violation, i.e., partition of the ground floor of the site in question.
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When the matter was heard by the appellate authority, it was noticed that the violations have
increased upto eight. To know above this fact, the revisional authority ordered inspection of the site
and as per report dated May 20, 2009, the petitioners had committed six more building violations
and most of those violations were neither sanctionable nor compoundable. Counsel for the
petitioners has failed to show that at any time, between 1972 upto the sale of the property in the year
2005, the petitioners made any effort to remove building violations or in the alternative, moved any
application to get violations compounded if permissible as per law. Petitioners remained happy with
the violations because they were getting huge amount towards lease from the four tenants., who
were made to sit in the building, after committing violations of law.
Further contention of counsel for the petitioners, is that in compounding the building violations,
discrimination has been done to the petitioners because in similar circumstances, in many other
buildings in that very Sector, violations were compounded and to say so, reliance has been placed
upon a Division Bench judgment of this Court in M/s. Rajender Kumar and Sons' case (supra).
For this argument, no relief can be given to the petitioners. In CIVIL WRIT PETITION NO. 10773
OF 2009 -7- this writ petition, not a single word has been mentioned as to how orders, passed are
discriminatory to the petitioner. No detail has been furnished as to which building violations were
compounded.
At the time of arguments, by making reference to the grounds of revision, an attempt was made to
show that discriminatory treatment has been meted out to the petitioner. Once the petitioners have
not raised any ground in this writ petition, no benefit of that argument can be extended to them.
Otherwise also, it has come on record that as on today, not one but eight building violations are in
existence. Revisional authority has specifically stated that most of the building violations are noncompoundable. If that is so, it was not possible for the authorities to give any benefit of
compounding of violations to the petitioners. Facts in M/s. Rajinder Kumar and Sons' (supra) were
altogether different. In that case, before order of resumption was passed, the owner had already
submitted the revised building plan, with an application to compound the violations. However, the
revised Building Plan was not approved, without any justification.
In the present case, position is altogether different. The petitioners themselves have committed
violation of partitioning the site in dispute, continued to get rent from four tenants and made no
attempt to remove the violations or get those compounded as per law. They woke up only when for
sale of the site, 'no objection' was not given by the authorities. Furthermore, the site has been
resumed for non-compliance of contractual obligation. In such like cases, writ petition is not
competent unless it is proved on record that action of the authorities was unreasonable and
unjustified , which is not so in this case. Jurisdiction under Article 226 CIVIL WRIT PETITION NO.
10773 OF 2009 -8- of the Constitution of India is extra-ordinary one. This Court is of the firm
opinion that discretion cannot be used for giving protection to a person, who has deliberately and
knowingly violated the provisions of law. Majesty of law cannot be tinkered with simply on the basis
of any technical defect in the order passed.
Dismissed.
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Sardar Mender Singh And Another vs Union Territory Of Chandigarh And ... on 13 August, 2009

( Jasbir Singh ) Judge August 13, 2009.

DKC

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