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2005 DIGILAW 472 (PNJ)

Girdhari Lal v. State of Punjab

2005-03-31

HARJIT SINGH BEDI, VINEY MITTAL

body2005
JUDGMENT Viney Mittal, J. - This order shall dispose of Letters Patent Appeal Nos. 28, 29, 30 of 1994 and Letters Patent Appeal No. 169 of 1995 as all the aforesaid appeals have arisen from a common judgment dated March 23, 1993 passed by the learned Single Judge. Vide the aforesaid common judgment, the learned Single Judge has disposed of Civil Writ Petition Nos. 4798, 4840, 4956 and 4957 of 1982. For the sake of convenience, the facts are taken from Letters Patent Appeal No. 28 of 1994 arising out of Civil Writ Petition No. 4798 of 1982. 2. An auction of some plots was carried out by the Administrator, New Mandi Townships, Punjab in Mandi Township, Abohar on December 14, 1973. Plot bearing No. 112 was auctioned in favour of Girdhari Lal, who was the highest bidder for a consideration of Rs. 64,200/-. 25% of the bid amount was deposited by aforesaid Girdhari Lal on the date of auction. The balance amount was to be paid in six half yearly instalments along with interest at the rate of 6% per annum. Girdhari Lal did not pay any further amount after making the initial payment of Rs. 16,050/-. A notice was issued to him on September 8, 1975 by the Administrator, New Mandi Township, Punjab. He was asked to pay the amount due along with penalty of Rs. 9,564.20 on or before 30 days. Neither the amount was paid by them nor any reply was submitted to the aforesaid show- cause notice. A subsequent show-cause notice dated November 11, 1975 was again issued and Girdhari Lal was asked to deposit amount of Rs. 18,792.95. It was clarified that in default of the aforesaid payment, action to resume the plot and forfeit the amount already deposited by him would be taken. It was further mentioned in the said notice that the aforesaid property would be re-auctioned and if there was any loss while re-auctioning the plot, the same would be recovered from him. The aforesaid notice was acknowledged by Girdhari Lal. However, no action was taken by him. Consequently on May 24, 1976, the Administrator, New Mandi Township, Punjab, Chandigarh resumed the aforesaid site along with structure, if any, and forfeited the entire amount paid by him in respect of the aforesaid plot. The aforesaid notice was acknowledged by Girdhari Lal. However, no action was taken by him. Consequently on May 24, 1976, the Administrator, New Mandi Township, Punjab, Chandigarh resumed the aforesaid site along with structure, if any, and forfeited the entire amount paid by him in respect of the aforesaid plot. The aforesaid order was challenged by Girdhari Lal by filing the aforesaid writ petition being Civil Writ Petition No. 4798 of 1982. 3. Writ petitioner, Girdhari Lal in the Writ petition, pleaded that at the time of auction it was represented that proper amenities, light, road and some other amenities would be provided and inspite of repeated requests none of the aforesaid amenities including street light, water supply, roads, etc. have been provided. Accordingly, it was maintained that the plot which had been purchased by the writ petitioner could not be put to any proper use and the very purpose for which the same had been purchased, had been defeated. The non-deposit of the due instalment was said to be justified by the writ petitioner on the aforesaid ground. A challenge was also made to Section 13 of the Punjab New Mandi Townships (Development and Regulation) Act, 1960 (hereinafter referred to as the "Act"). It was claimed that aforesaid provision was ultra vires of the Constitution of India as was held by a Division Bench of this Court in Dharam Pal etc. v. State of Punjab, 1979 Punjab Law Journal 396. 4. The respondents in the writ petition contested the claim of the writ petitioner. It was claimed that the writ petitioner had defaulted in making the repayment of the due instalments and, accordingly, two show-cause notices had been issued to him calling upon him to make the payment. An opportunity of personal hearing was also granted but inspite of the aforesaid fact the writ petitioner had failed to make the payment. It was also maintained by the aforesaid respondents that the necessary amenities had been provided and, in any case, the providing of the aforesaid amenities was not a pre-condition for payment of the due instalments. 5. At this stage, it may be relevant to notice here that Section 13 of the Act was struck down as unconstitutional by a Division Bench of this Court in Dharam Pals case (supra). After the aforesaid judgment, an amended Act being Punjab Act No. 16 of 1981 had been enacted. 5. At this stage, it may be relevant to notice here that Section 13 of the Act was struck down as unconstitutional by a Division Bench of this Court in Dharam Pals case (supra). After the aforesaid judgment, an amended Act being Punjab Act No. 16 of 1981 had been enacted. As a result of the amendment, the existing provision of Section 12 of Act 2 of 1960 was omitted whereas Section 13 of the Act was re-framed and made operative with retrospective effect i.e. with effect from November 1, 1966. By virtue of provision of Section 8 of the amending Act, the legislation validated all the actions taken under the existing provisions of the principal Act. 6. The learned Single Judge took due notice of the amendment of the Act and re-validation of the action taken by the authorities. However, the challenge to the order of resumption (Annexure P-3 with the writ petition) was negatived by the learned Single Judge on the ground that there was sufficient compliance of the amended Act and no prejudice had been caused to the writ petitioner who had not cared at all and had not deposited the amount of instalments due. Consequently, the writ petition filed by the petitioner was dismissed. 7. The writ petitioner has approached this Court through the present Letters Patent Appeal under Clause X. 8. We have heard Shri Heman Bassi, learned counsel for the appellant and Ms. Rita Kohli, learned Deputy Advocate General, Punjab for the respondents and with their assistance have also gone through the record of the case. 9. Shri Hemant Bassi, learned counsel for the appellant has vehemently argued that the provisions of the principal Act of 1960 had been declared as ultra vires of the Constitution of India in Dharam Pals case (supra). After the aforesaid judgment the principal Act had been amended vide Act No. 16 of 1981. Section 13 of the principal Act had been substituted by a new Section 13. On that basis, it has been contended by the learned counsel that the action of resumption of the plot in question taken by respondent No. 2 was required to be examined in view of the new amended provision of Section 13, as substituted by Act No. 16 of 1981. On that basis, it has been contended by the learned counsel that the action of resumption of the plot in question taken by respondent No. 2 was required to be examined in view of the new amended provision of Section 13, as substituted by Act No. 16 of 1981. Learned counsel has brought to our notice the aforesaid provision of Section 13 and has contended that in case of failure of a transferee to pay the consideration or any instalment thereof, on account of sale of any site etc., the Administrator is required to serve a notice in writing calling upon the transferee to show-cause why a penalty be not imposed upon him. On consideration of the reply received of the transferee, the Administrator was required to pass an order in writing imposing a penalty with a direction to the transferee to make the payment of the aforesaid penalty within a stipulated period. it was only in a situation, when the transferee fails to say the amount of penalty that a fresh show-cause notice was required to be issued by the Administrator, calling upon the transferee as to why an order of resumption of site or building, as the case may be, be not passed with a further stipulation that in such a situation forfeiture of the whole or any part of the money could be ordered. Thus, the learned counsel maintains that the procedure followed by respondent No. 2, the Administrator, was not in consonance and in conformity with the provisions of Section 13 of the amended Act. Learned counsel in support of the aforesaid contention has placed reliance upon a Division Bench judgment of this Court in LPA No. 672 of 1996 decided on September 9, 2004 (Jagmohan Singh v. State of Punjab and others). 10. Ms. Rita Kohli, learned Deputy Advocate General appearing for the respondents has refuted the contentions of learned counsel for the appellant. Ms. Kohli has argued that the present appellant had not bothered to make any payment after the initial payment of Rs. 16,050/- being 25% of the total amount of consideration. The aforesaid payment had been made by the writ petitioner at the time of auction. Ms. Kohli has argued that the present appellant had not bothered to make any payment after the initial payment of Rs. 16,050/- being 25% of the total amount of consideration. The aforesaid payment had been made by the writ petitioner at the time of auction. After the aforesaid default, two separate show-cause notices dated September 8, 1975 and November 11, 1975 had been issued by the Administrator to the aforesaid transferee but even thereafter the said transferee (with petitioner) failed to make the payment. On that account, it has been argued that the order of resumption was rightly and validly passed by the Administrator. 11. We have given our due consideration to the rival contentions of the learned counsel for the parties. 12. It is not in dispute that the writ petitioner (present appellant) had not bothered to make the payment of the due instalments after making the initial payment of 25% of the amount at the time of auction. However, we are not commenting upon the aforesaid fact as to whether he was, in any manner, justified or not for not paying the due instalments. The only controversy which we are called upon to examine is as to whether the Administrator while passing the order dated May 24, 1976, resuming the site in question had acted in conformity with the provision of Section 13 of the amended Act or not. 13. Some observations made by the Division Bench in Jagmohan Singhs case (supra) may be noticed at this stage : "Perusal of unamended and amended Section 13 of the Act, as reproduced above, would clearly manifest that whereas, under unamended provisions of Section 13 of the Act, on account of failure to pay the sale price or lease money of the site or building, same could be resumed straightaway, as per the amended provisions of Section 13 of the Act, in case of failure to pay the consideration money, in the first instance, the transferee has to be called upon to show-cause within a period of thirty days, why a penalty be not imposed upon him. The first notice in the event of failure to pay the amount due, thus, calls only for a show-cause so as to impose a penalty. The first notice in the event of failure to pay the amount due, thus, calls only for a show-cause so as to impose a penalty. By virtue of the provisions contained in sub-section (2) of amended Section 13 of the Act, if the Administrator is not satisfied with the reasons given by the allottee, he would first pass an order, for the reasons to be recorded in writing, regarding imposition of penalty and would direct that the amount with penal interest shall be paid within such period as may be specified in the order. It is only, if the order passed under sub-section (2) of amended Section 13 of the Act is not complied with, that a second show- cause notice would be given to the allottee calling upon him to show cause within a period of thirty days as to why an order of resumption of the site or building be not passed and the money already paid by him be not forfeited, full or in part, and it is only after considering the cause, if any, shown by the allottee, that the same may not have been reasonable, that an order of resumption under sub-section (4) of amended Section 13 of the Act may be passed. The significant departure in the procedure under the unamended and amended Section 13 is that whereas, under the unamended provisions of Section 13, on account of non-payment of the money due, a notice with regard to penalty and resumption could straightaway be issued and after considering the reply, and if the same was not found to be satisfactory, an order for resumption as also forfeiture of money already paid could be passed, under the amended provisions of Section 13 of the Act, on account of non-payment of money, first a notice with regard to imposition of penalty has to be issued. It is only when order is passed imposing the penalty, which is not paid along with the money due, that a second show-cause notice for resumption can possibly be issued. It is only when order is passed imposing the penalty, which is not paid along with the money due, that a second show-cause notice for resumption can possibly be issued. As to whether the procedure prescribed under the unamended Section 13 of the Act is followed in the present case is, thus, the question that arises for determination." From the language of the amended provision of Section 13 of the Act and from the interpretation thereof by the Division Bench in Jagmohan Singhs case (supra), it is apparent that on the failure of a transferee to pay the sale price, the Administrator is required to issue show-cause notice calling upon the transferee to show-cause within a period of 30 days why a penalty be not imposed upon him. The law requires the aforesaid notice to be the first notice to the transferee and authorises the Administrator to impose penalty for the aforesaid default in making the payment of instalments. It is only in case when the aforesaid penalty is not deposited by the transferee within the stipulated period that a second show-cause notice is required to be served in terms of Section 13(3) of the Act. The second show-cause notice requires the transferee to show-cause, within a period of 30 days, as to why the resumption of the site or building, as the case may be, but not ordered and as to why the amount already deposited be not forfeited. The perusal of the facts as contained in the pleadings of the partis and as noticed by the learned Single Judge does not show that the aforesaid procedure had at all been followed by the Administrator. Both the show-cause notices i.e. dated September 8, 1975 were merely in terms of Section 13 of the original Act. The said show-cause notices cannot be treated to be notices in conformity with the provision of Section 13 of the amended Act. Thus, obviously the order dated May 24, 1976 (Annexure P-3 with the writ petition) cannot be legally sustained. The same is liable to be quashed. 14. The said show-cause notices cannot be treated to be notices in conformity with the provision of Section 13 of the amended Act. Thus, obviously the order dated May 24, 1976 (Annexure P-3 with the writ petition) cannot be legally sustained. The same is liable to be quashed. 14. At this stage, we may also notice certain further observations made by the Division Bench in Jagmohan Singhs case (supra) as follows : "Coming now to the only contention raised by learned Additional Advocate General, Punjab, we may mention here that we are not called upon to comment and decide the matter on merits, as to whether the petitioner was justified or not in not paying the due instalments and in these proceedings it shall be difficult for us to go into the question raised by learned Additional Advocate General. That apart, the State must follow the procedure as laid down by law and if such a procedure is not followed, action taken in violation thereof has to be adversely commented and if any order that might have been passed, same has to be set aside. In such cases conduct of the parties does not remain of much significance. However, in the proceedings that may be now initiated against the petitioner by following the correct procedure, it shall be for the State to find out if the petitioner had justifiable reasons so as not to pay instalments towards payments and pass appropriate orders accordingly." Accordingly, we allow Letters Patent Appeal Nos. 28, 29 and 30 of 1994 and Letter Patent Appeal No. 169 of 1995 and after setting aside the judgment of the learned Single Judge, set aside order regarding resumption of plot and forfeiture of money already paid. However, the respondents are granted a liberty to initiate penalty and resumption proceedings against the appellant, in accordance with law. While initiating the aforesaid proceedings, it shall be open to the respondents, even if they come to the conclusion that there was some justification in not paying the installments by the appellant, to charge interest from him for having not paid the instalments for such a long time. There shall be no order as to costs. Appeals allowed.