RAKESH KUMAR Vs. FINANCIAL COMMISSIONER/REVENUE

JUDGEMENT

(1.) THE principal issue raised in the instant petition centers around the power of respondent Nos. 3 and 4 to resume the property purchased by the petitioners in the open auction under the terms and conditions of the allotment letter as also under the Pepsu Townships Development Board Disposal of Property Rules, 2003 (for brevity, 'the Rules').

(2.) FACTS in brief are that the petitioners purchased site No. 106-A, Guru Nanak Colony, Rajpura, District Patiala, in the open auction being the highest bidder. The offer of the petitioners was accepted by the Pepsu Townships Development Board (for brevity, 'the Board'). They deposited a sum of Rs. 6,32,000/- being 25% of the sale price. The balance of Rs. 18,93,000/- was payable in six half yearly instalments. On the issuance of acceptance letter on 19.4.2004 (P-1) they deposited the requisite charges required for sanction of building plans, development charges, vide receipt dated 27.5.2004. After sanction of the site plans they started raising construction on the site in question. On 6.7.204, the Board issued a show cause notice to the petitioners under Rule 22 of the Rules to show cause as to why the building in question be not resumed alleging that the petitioners had changed the land use of the site by constructing shops in violation of the building plans approved by the Municipal Council, Rajpura. The petitioners filed a detailed reply on 6.7.2004 (P-4). However, the Board passed an order of resumption on 2.8.2004 (P-5), which is the primary order challenged in the instant petition. The appeal filed by the petitioners before the Divisional Commissioner, Patiala Division, Patiala, was accepted and the order of resumption dated 2.8.2004 (P-5) was set aside by holding that it was a nonspeaking order which has been passed in a hasty manner without affording any opportunity to the petitioners to adduce evidence in support of their plea reflected in their reply dated 6.7.2004 (P- 4). However, the Financial Commissioner-respondent No. 1 set aside the order passed by the Divisional Commissioner by entertaining the revision petition filed under Rule 13(2) of the Rules. The operative part of the order dated 13.8.2007 (P-8) is being extracted for a ready reference, which reads thus :- "4. I have heard counsel for both the parties and gone through the record of the lower courts. There is no dispute that the plot No. 106-A in Guru Nanak Colony Rajpura auctioned on 26.2.2004 is meant for residential purpose only. The counsel for the petitioner has placed on record photographs showing that the respondents have constructed ten shops adjoining each other in a row, whereas it is clearly provided under clause (iii) of Acceptance Letter that the respondent will not use the site for the purpose other than for which it has been sold to them only for residential purpose. I fail to understand why the Commissioner has ignored this sold proof of photographs. I do not agree with the counsel for the respondents that the Administrator passed resumption order dated 02.08.04 without considering reply of the respondents to the show cause notice. A cursory glance over the Administrator's order shows that the reply of the respondents was very well considered before passing final orders by Administrator. I, therefore, accept the revision petition and set aside the impugned order dated 31.5.05 of the Commissioner and uphold the order dated 2.8.2004 of Administrator whereby of plot No. 106-A in Guru Nanak Colony, Rajpura including structure built on it was resumed and the initial amount deposited by the respondents was forfeited."

(3.) MR . Arun Jain, learned Senior counsel for the petitioners at the outset has made an offer that the petitioners undertake to demolish the whole construction and to further construct the building strictly in accordance with the sanctioned building plans. On merit, learned counsel has argued that the order of resumption cannot be passed so easily and if there was any violation of sanctioned building plans then notice for demolition of illegal structure should have been issued. He has also submitted that the respondents were under obligation to adopt the fair procedure before resuming the property of the petitioners and passing order of forfeiture of the amount. In support of his submission, learned counsel has placed reliance on a Full Bench judgment of this Court in the case of Ram Puri v. Chief Commissioner, Chandigarh, AIR 1982 P&H 301. He has maintained that the power of resumption is only a remedial power and, therefore, this power should not be used arbitrarily and whimsically. Mr. Jain has also submitted that for a small violation the extreme step of resumption would be wholly unwarranted and violate the principles of proportionality. He has then placed reliance on Rule 22 of the Rules which does not provide for resumption of the site on the ground of violation of site plans.