PROMILA DEVI Vs. UNION TERRITORY, CHANDIGARH AND OTHERS

JUDGEMENT

(1.) Challenge in the present writ petition is to the order dated 02.05.1991 (Annexure P-22) passed by the Estate Officer, Chandigarh; order dated 30.04.2008 (Annexure P-11) passed by the Chief Administrator, Chandigarh and the order in revision dated 20.08.2008 (Annexure P-12) passed by the Advisor to Administrator, U.T. Chandigarh. The brief facts, which give rise to the present writ petition is that a commercial site No.117, Sector 28-D, Chandigarh, was purchased by the petitioner in an auction conducted on 06.02.1972. A show cause notice dated 6.5.1987 was issued on the address, which was C/o M/s Kaushal Bazar, Sector 17-D, Chandigarh, as to why the building be not resumed for the reason that material changes have been made in the building. It has also been pleaded that the petitioner has appointed one Pritam Singh son of Gurbachan Singh as her General Power of Attorney and also appointed Smt. Kulwant Kaur as her Special Power of Attorney. The General Power of Attorney of the petitioner died on 08.10.1986. But no show cause notice or communication for resumption was received by the petitioner or her attorney, which led to passing of an exparte order of resumption by the Estate Officer on 02.05.1991. The order of resumption also did not come to the notice of the petitioner or her attorney, which led to filing of appeal after gross delay. Such appeal was dismissed by the learned Chief Administrator on 30.04.2008 being barred by time. Such order has been affirmed in revision.

(2.) Learned counsel for the petitioner has argued that the building was resumed for the reason that there are material changes i.e. Wooden partition in the building constructed by the petitioner, whereas such violations have since been removed and are also permissible in the revised instructions issued.

(3.) Mr. Kaushal could not dispute the factual position that at present wooden partitions are permissible and also such violations have been removed. Keeping in view the fact that the ex parte order of resumption was passed, which led to delay in filing of appeal and consequently revision, we find that the penalty of resumption of site for the misuse which has since been stopped, causes irreparable loss and injury to the petitioner. In Teri Oat Estates (P) Ltd. v. U.T., Chandigarh, 2004 2 SCC 130, the Hon'ble Supreme Court applied doctrine of proportionality while considering the resumption of a building. The Court held as under: