In a judgment having far-reaching consequences, the High Court remarked that “every such action (levy of penalty or demolition of encroachments) shall have to be expressly disclosed in the show-cause notice for initiating the resumption proceedings”. If not complied with the directions, the court has observed that “the non-compliance whereof shall vitiate the resumption proceedings besides other consequences”.
Expressing deep concern on the future of City Beautiful, the High Court has held that the Act under which Chandigarh was established needs “revamp and updation to meet the modern day challenges”. The full bench comprising Justices Surya Kant, Augustine George Masih and R P Nagrath has slammed the Chandigarh Administration for not coming out with “concrete” proposals but going in for “ad hoc solutions”.
The detailed judgment running into 103 pages reads, “The Executive in this case has failed to live up to the expectations of the residents as instead of approaching the Ministry concerned with a concrete proposal on data-based information for onward consideration of the Legislature to rejuvenate the Capital of Punjab (Development & Regulation) Act, 1952 and make it more vibrant, it has gone for ad hoc solutions.”
Expressing surprise, the court has noted that “strangely, the amount of penalty or fine (on account of violation) fixed by the Legislature in the year 1952 has not been got revised even after the expiry of 60 years”.
Emphasising the need to revamp the 1952 Act, the High Court said that “we cannot refrain from observing that the 1952 Act may need revamping and updation to meet the modern day challenges some of which are incidental to the steep hike in the value of real estate and an unprecedented pressure of population mounted on Chandigarh”.
The judgment reads, “It is the Executive, therefore, who has an onerous duty to apprise, suggest and put up before the Legislature a proposal along with facts and figures justifying the changes that may be brought into an enactment.”
However, the court has made it clear that the 1952 Act has “become neither obsolete nor redundant and it shall continue to operate until repealed expressly or by implication by the competent Legislature”.
On the issue of resumption, the court has ruled that the estate officer has to determine whether “the breach of terms and conditions of allotment or violation of any building byelaw by the allottee is ‘wilful’ and ‘deliberate’ or it has occurred for the reasons beyond his control”.
If it is beyond one’s control then it “shall not be possible (for the estate officer) to invoke the power mechanically and resume the property”.
Citing an instance, the bench has held that “if an allottee indisputably rents out his premises to a tenant for residential purposes only and the tenant starts misusing the premises for commercial purposes against whom the landlord, without any inordinate delay, initiates eviction proceedings”, the allottee cannot be penalised.
“The only recourse in such an eventuality available with the Estate Officer shall be to keep the resumption proceedings in abeyance till the eviction proceedings are decided though he must keep track of the status of eviction proceedings from time to time,” reads the order.
On the contrary, the bench added, “If premises is being misused by the tenant with a tacit understanding or in connivance with the landlord and the so-called eviction proceedings are a ruse to defy and defeat the action, the Estate Officer shall be well within his right to return such a finding of fact on appreciation of evidence on record, and hold that the misuse of premises by the tenant shall be deemed to be violation of Building Byelaws by the allottee-cum-landlord.”