TaxTMI 
TaxTMI 
2003 (12) TMI 588
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.... and/or in four yearly instalments. In the event of the purchaser opting for payment in instalments, 7% interest was payable. It is not in dispute that 25% of the allotment price was required to be deposited within 30 days of auction and upon compliance of the said term, the Estate Officer, Chandigarh, confirmed the lease of the said site in favour of the purchasers vide allotment letter dated 26.4.1988. 7% interest, as referred to hereinbefore, was leviable on the balance 75% premium as contained in the Letter of Allotment in three equal instalments together with ground rent. Clause 8-A of the said letter of allotment, however, stipulated levy of interest @12% per annum, penalty and power of resumption in the event of delayed payment of instalments upon grant of an opportunity of being heard in the following terms : "8-A. After considering the cause, if any, shown by the lessee in pursuance of the aforesaid notice, the Estate Officer may either allow payment of installment/rent with penalty which may extend to 100% of the amount due and interest @ 12% P.A., for the delayed period, order cancellation of lease and forfeit the whole/part of the....
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.... Thousand only), plus ground rent and interest calculated to the date of cancellation is forfeited. None present In spite of valid service of notice. Issue under my hand and seal this 24^th day of June, 1992." 5. The appellant herein preferred an appeal there against before the Chief Administrator, Union Territory of Chandigarh and by an order dated 21.2.1995, the Chief Administrator, Chandigarh held : - "4. The representative of the Estate Officer argued that an amount of Rs. 52,25,380/- is due from the appellant which includes penalty interest and forfeiture etc. The Counsel for the appellant agrees to make the part payment on 7.3.95 in the Lok Adalat to be held in U.T. State Guest House and the remaining he shall be paying by 31^st March, 1995. To this payment the representative of the Estate Officer has no objection. 5. In view of this commitment, of the counsel for appellant, I set aside the impugned order, restore the site to the appellant subject to the condition that part payment is made on 7.3.95 in the Lok Adalat and the remaining alongwith forfeiture of 2% shall be paid by 31^st March, 1995 failing which the....
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....iod and 24% interest for the rest had been levied. Levy of such penal interest, it appears, was the subject matter of a writ petition before the Punjab and Haryana High Court marked as CWP No. 17188 of 1995. 8. In the meanwhile, a proceeding under the provisions of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 was initiated. By an order dated 29.3.1996, the Estate Officer directed the appellant and all other persons in occupation to vacate the said premises. An appeal preferred there against was dismissed by the District Judge by an order dated 17.4.1996. 9. An application for amendment to the writ petition was filed questioning the order of eviction passed under the Public Premises (Eviction of Unauthorized Occupants) Act, 1971. During the pendency of the said writ petition, the appellant deposited a sum of Rs. 25,00,000/- in terms whereof allegedly the entire principal amount due towards instalments and ground rent was cleared. A further sum of Rs. 5,00,000/- was deposited on 31.10.1996 in terms of an order of the High Court, whereafter the following statement of accounts was prepared by the Estate Officer : Sl. No. HEAD OUTSTANDING AMOUNT 1....
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....appellant had made over payment by Rs. 3,723/-. Upon charging of ground rent for the period 13.3.1998 to 10.4.1998 for a sum of Rs. 71,750/- and 10% F.F. amounting to Rs. 2,87,000/- , a further sum of Rs. 3,55,027/- was demanded. The appellant deposited the said amount and forwarded the pay order therefore along with his letter dated 19.3.1998. SUBMISSIONS : 15. Mr. J.K. Sibal, learned Senior Counsel appearing on behalf of the appellant, would submit that having regard to the fact that all payments had been made, pursuant to the order of this Court, the impugned judgment of the High Court should be set aside. 16. Ms. Kamini Jaiswal, learned counsel appearing on behalf of the respondent would, on the other hand, contend that the respondents herein having accepted the payments from the appellant under the orders of the Court which being subject to the result of these appeals, the matter may be heard on merits. The learned counsel would contend that from the records it would appear that the appellant except for making the initial payment of 25% failed and/or neglected to make any further payment despite several opportunities granted to it. Ms. Jaiswal would urge that the appe....
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....ent of the lands. VIRES OF THE 1952 ACT : 20. The constitutionality of Section 8-A of the 1952 Act as inserted by the Central Act No. 17 of 73 in terms whereof the Estate Officer became empowered to resume building or site and to forfeit money paid by transferee came to be questioned before the Punjab and Haryana High Court in Ram Puri (supra), inter alia, on the ground that same is violative of Article 14 of the Constitution of India. Sandhawalia, CJ, speaking for the majority while holding that the power of resumption is valid observed that the same being an ultimate civil sanction should be used as a weapon of last resort as well as with great caution and circumspection. Punchhi, J. (as the learned Chief Justice then was), however, in his minority opinion made a distinction between resumption and forfeiture and observed that Section 8-A could not be applied in view of the orders/letters of allotment referred to therein and in any event such resumption cannot be in relation to a building which was built on the land. The provision was held ultra vires also on the ground that there is no relief available against forfeiture in terms of Section 8-A, holding : &nb....
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....of the eternal wisdom'. It is undoubtedly true that their usefulness increases, rather than diminishes, as the law grows complex and involved, for they bring back the mind to the dust principles. Now to say that the site vests in the Government and not the structure thereon, which becomes part and parcel of the site, is begging the question. Such a construction put by the Chandigarh Administration to the effect of resumption causes destruction of an estate; the two ownership attempting to pull apart, but vainly. Thus interpreting Section 8-A, I would refrain from an odious construction which would lead to the destruction or dissipation of an estate, and as was done in Amrit Sagar Kashyap's case (1980-82 Pun LR 441) (supra) settle the term 'resumption' to a right of re-entry on the property resumed." 21. This Court in Babu Singh Bains (supra) held that as Section 8-A provides for a fair procedure, the same is not arbitrary and, thus, not . violative of Article 14 of the Constitution of India, holding : "...The majority judgment has rightly focused the question in the correct perspective and had held that Section 8-A is valid in ....
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....viewed separately and no hard and fast rule can be laid down therefore. In a case of this nature, therefore, the action of the Estate Officer and other statutory authorities having regard to the factual matrix obtaining in each case must be viewed from the angle as to whether the same attracts the wrath of Article 14 of the Constitution of India or not. 25. In Darkadas Marfatia and Sons v. Board of Trustees of the Port of Bombay , while holding that, the provisions of Bombay Rents, Hotel & Lodging House Rates (Control) Act, 1947 do not apply to the local bodies or public authorities which are States within the meaning of Article 12 of the Constitution of India, this Court observed : "16. Our attention was also drawn by Mr. Chinai, learned counsel for the appellant, to the observations on 'Administrative Law' by Wade, 5^th Edn. at pager 355. It was stated therein as follows :- 'Statutory power conferred for, public purposes is conferred as it were upon trust, not absolutely - that is to say, it can validly be used only in the right and proper way which Parliament when conferring it is presumed to have....
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....f us V.N. Khare, J (as the CJI then was, was a Member) without expressing any opinion on the question of law as raised therein directed regularization of allotment of the site in favour of the appellant taking note of the fact that the entire amount which was due had been paid. In Jasbir Kaur v. Union Territory of Chandigarh and Ors. [(1991) 1 P.L.J. 417], a Division Bench of the Punjab & Haryana High Court following its earlier decision in Ram Puri (supra) in the facts and circumstances of the case held that in case of default, the interest chargeable would be 10% and not 18%. 31. In Kashmir Chand (supra), again in a case where the payments had been made, relief had been given to the parties. In an unreported decision of this Court dated 23.1.1998 in Batra Finance, (supra), this Court in the fact situation obtaining therein observed that the direction for forfeiture should not have been passed by the High Court with liberty to file application for re-allotment, considering the fact that the interest on unpaid amount had been calculated on the basis of graduated interest from 12% to 24% and penalty on the first instalment had also been calculated at Rs. 31,400/- and for the seco....
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...., on a concession made by the learned Solicitor General that the enhanced rate of interest @ 24% would be chargeable from 22.7.1993, directed : "Revised calculation of the amounts due and payable by the petitioners will be on this basis, will be served on the petitioners within one week from today. Within four weeks from the service of the revised demand 25 per cent of the amount due from each of the petitioner will be paid to the respondents. The balance amount will be paid within four months of the service of notice of demand. It is clarified that the interest will continue to run at the enhanced rate on the deceasing balance till the date of payment. If the payment is made as directed by this order, the Solicitor General states that the respondent will not exercise their right of re-entry/forfeiture under Clause 17 or any other appropriate clause on the ground of delay in payment of the amounts due to the respondents." 35. In Devinder Singh Pannu and Ors. v. The Chandigarh Admn. and Ors. (Civil Appeal No. 1092 of 1998), this Court having regard to the fact that the appellants therein had already made an application for re-allotment d....
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....ers issued by the High Court on misplaced sympathy in favour of the students..." PROPORTIONALITY : 40. The issue in the light of the decision of the full Bench of the Punjab & Haryana High Court in Ram Puri v. Chief Commissioner, Chandigarh (supra) as affirmed by this Court in Babu Singh Bains and Ors. v. Union of India and Ors.(supra) may have to be considered from another angle. 41. By reason of the auction held, the land in question has been sold in favour of the appellant. A letter of allotment has been issued in terms thereof. The appellant has been put in possession of the purchased property. In law he was entitled to raise constructions and in fact he has raised a six storied building. He has paid a part of the first instalment and during pendency of the proceeding before the High Court has paid a substantial amount together with interest @ 12% p.a. as enhanced from time to time. 42. The respondents were entitled to pay interest on the unpaid amount @ 7% p.a. which in the event of non-payment was to be paid at a penal rate of 12% and subsequently enhanced to 15 per cent and then to 24 per cent as well the amount of penalty to be levied thereupon. The entire amoun....
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...., in all the circumstances of a given case, it is inevitable that the social philosophy and the scale of values of the judges participating in the decision, should play an important part, and limit to their interferences with legislative judgment in such cases can only be dictated by their sense of responsibility and self-restraint and the sobering reflection that the Constitution is meant not only for the people of their way of thinking but for all, and that the majority of the elected representatives of the people have, in authorizing the imposition of the restrictions, considered them to be reasonable." 48. The principle started gaining momentum in other countries and it was applied and developed in England as noticed by Lord Diplock in R.V. Secretary of State for, the Home Department, ex Brind (1991 (1) Appeal Cases 696). This Court in Tata Cellular v. Union of India while opining in concurrence with the judgment of the House of Lords in Council of Civil Services Union v. Minister of Civil Service [1985 (1) Appeal Cases 374] that the extent of judicial review should ordinarily be limited to illegality, irrationality and procedural impropriety observed that they are only the ....
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....le or the spirit thereof has recently been applied by the Court of Appeals. 52. In Edore v. Secretary of State for the Home Department, [2003] 3 All ER 1265, the appellant was a citizen of Nigeria who had entered into the United Kingdom and remained back after her visa had expired. She had two children, born to a British citizen. The children were emotionally dependent on him and he was a stabling influence on their lives. If the appellant and her children were retuned to Nigeria, their relationship with their father would end. The Court trying to resolve the conflict at hand opined :- "Where the essential facts were not in doubt or dispute, the adjudicator's task was to determine whether the decisions under appeal was properly one with the decision-makers discretion, namely that it was a decision which could reasonably be regarded as striking a fair balance between the competing interests in law. If it were, then the adjudicator could not characterize it as a decision 'not in accordance with the law' and so, even if he personally would have preferred the balance to have been struck differently, he could not substitute his preference for t....