Surya Kant, J. - (1.) THE petitioners impugn the orders dated 17.08.1979, 25.03.2009, 24.08.2009 and 25.05.2012 [P -4, P -19, P -21 and P -23 respectively] whereby SCO No. 94 -95, Sector 17 -C, Chandigarh was resumed and the appeal/revision petitions etc. were also dismissed.
(2.) IN the light of the subsequent events, it may not be necessary to refer to the facts in detail and/or to pass a lengthy order. Suffice it to observe that the subject site was resumed on account of misuse of a part of it by the tenants/occupiers. Since certain alterations were made contrary to the sanctioned building plans and there was thus an apparent misuse of the premises, the action initiated by the authorities was fully justified. It is, however, equally true that the resumption of a site has to be the last resort as ruled by the Full Bench of this Court in Dheera Singh Vs. U.T., Chandigarh Admn. & Ors., : [2013 -1] 169, PLR, 1 laying down that: - 81......It necessarily means and the respondents cannot be heard to say otherwise except that the power of resumption can be invoked as a last resort and the action of the Estate Officer is required to be judged on the touch -stone of Article 14 of the Constitution. It implies that the Estate Officer before passing a resumption order shall be obligated to determine whether the breach of terms and conditions of allotment or violation of any building bye -law by the allottee is 'willful' and 'deliberate' or it has occurred for the reasons beyond his control? In the case of the latter category it shall not be possible to invoke the power mechanically and resume the property For example, if an allottee indisputably rents out his residential premises to a tenant for residential purposes only and the tenant in utter defiance to the terms of tenancy starts misusing the premises for commercial purposes against whom the landlord, without any inordinate delay, initiates eviction proceedings under the East Punjab Urban Rent Restriction Act, 1949 (as applicable to UT Chandigarh) inter alia on the ground of misuse of the premises, how can the allottee be held guilty of willful and deliberate violation of the building bye -laws? 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. Any attempt to deviate from such like fait accompli conditions shall vitiate the action rendering the resumption proceedings to nothing but a colourable exercise and/or abuse of power by the Estate Officer. Similarly, the first or stray violation(s) can hardly justify the impaling effect of 'resumption' and any such casual attempt with a bureaucratic approach deserves serious view in exercise of power of judicial review. (87). It is well known that mere possibility of abuse of power or its arbitrary exercise is no test for determining the reasonableness of the restriction imposed by law nor shall it vitiate such law. If, however, the statutory power or discretion is shown to have been abused by the authority, the person aggrieved is entitled to approach the appropriate forum against the illegal order but that would be no ground for invalidating the Statute itself. Nonetheless, we direct that 'resumption' being the last resort, the Estate Officer shall not henceforth initiate proceedings under Section 8A unless the wrongdoer has been penalized to the maximum firstly under Section 15 or under the Rules framed under Section 22 of the Act and every such action shall have to be expressly disclosed in the show cause notice for initiating the resumption proceedings.
(3.) IT was in this back -drop that on 17.02.2014 following order was passed on the statement made on behalf of the petitioners: - It is contended on behalf of the petitioners that misuse of the basement was at the instance of the tenant, against whom eviction proceedings were initiated and during pendency of the same, the tenant/sub -tenant have vacated the premises. It is further stated that the misuse of the part of the basement has since been stopped. Let the respondents re -visit the site and submit a status -report giving details of the alleged misuse, if any, and whether the same is compoundable?;