- (1.) The facts of the petition which are uncontroverted are as under :- Petitioner No. 1 is the owner of shop-cum-flat No. 43, Sector 21-C, Chandigarh and petitioner No. 2 is tenant under him. The plot of this premises was purchased by the father of petitioner No. 1 in public auction held on December 30, 1957, being the highest bidder. It was an industrial plot meant for setting up of Printing Press. The bid money, which was accepted, was Rs. 12,500/-. Respondent No. 2 issued allotment letter dated January 16, 1958 to Shri Ram Saran, father of Petitioner No. 1 (copy Annexure 'A'). The father of the petitioner died in the year 1960 leaving behind his widow and petitioner No. 1. All the instalments which were due in respect of the said plot were duly paid by petitioner No. 1 on October 9, 1963 and usual conveyance deed was also executed by the respondents in favour of petitioner No. 1. Thereafter the construction of the shop-cum-flat was completed by the middle of the year 1964. Due to adverse economic circumstances, petitioner No. 1 leased out the shop to Messrs Madhukar Motors in October, 1964. Respondent No. 2 sent a notice to petitioner No. 1 objecting to the use of the shop for the business of motor parts, on December 17, 1964 under Section 13 of the Capital of Punjab (Development and Regulation) Act, 1952 (hereinafter called the Act) (copy Annexure 'C'). Consequently, the petitioner took immediate steps for vacation of the shop which was actually vacated by the tenant in January, 1965. The petitioner No. 1 made a representation to respondent No. 1 (Annexure 'E') requesting him to allow the petitioner to change the trade from printing press to general trade but was not allowed to do so. Since the petitioner No. 1 was facing great economic difficulties, he rented out the shop to petitioner No. 2 with effect from February 1, 1966, on a monthly rent of Rs. 350/-. On this respondent No. 2 served another notice on March 2, 1966 (Annexure 'G') under Section 9 of the Act for breach of Rule 9 of Chandigarh (Sale of Sites) Rules, 1952, vide which petitioner No. 1 was called upon to show cause why the said site and the building constructed thereon be not resumed and the whole money paid in respect thereof be forfeited. It is in these circumstances, that the present writ has been filed.
(2.) Mr. Awasthy, learned counsel for the petitioners has contended that Section 9 of the Act in so far as it enables to resume site and the plot and to forfeit the purchase price of the site, is illegal and unconstitutional. In support of his contention he has relied on M/s Jagdish Chand Radhey Shyam v. State of Punjab and others, 1972 AIR(SC) 2587 This authority is directly on the point and their Lordships of the Supreme Court observed as under :- "While Section 3 provides that the unpaid consideration money will be the first charge on the auctioned property and thus affords the remedy to the Government to recover the unpaid consideration under the ordinary law of the land. Section 9 provides for the forfeiture of any part of the money paid and for resumption of the land. Section 9 does not offer any relief against forfeiture. This feature that the Government can proceed either under the ordinary law of the land or under the 1952 Act shows that there is discrimination. There is no guidance in the Act as to when the Government will resort to the common law remedy or the more drastic remedy provided under Section 9. Again there is the possibility that the Government may choose and discriminate in proceeding against one person in one manner and another person in another manner. Hence, Section 9 is unconstitutional as violating Articles 14 and 19(1)(g) and on default of the auction purchaser to pay balance consideration money the Government cannot forfeit the money paid and resume the site." A bare reading of the observations in the Supreme Court case cited above would show that Section 9 of the Act has been struck down and is held unconstitutional and violative of Articles 14 and 19(1)(g) of the Constitution. In that case the whole money was not paid and some instalments were yet to be paid. 25 per cent of the purchase price of Rs. 94,000/- was paid by the appellant at the fall of the hammer. As the appellant could not pay outstanding money of instalments, action under Section 9 was taken against him by the Estate Officer resuming the site and forfeiting the amount already paid by the appellant. On appeal to the Supreme Court, Section 9 of the Act was held to be unconstitutional and violative of Articles 14 and 19(1)(g) of the Constitution. In the present case no instalment is due to be paid as the whole amount had been paid by the petitioner No. 1. The petitioner also spent a considerable amount on the building. The learned counsel for the respondents could not show me any law which may compel me to take a contrary view. He has brought to my notice the Capital of Punjab (Development and Regulation) (Chandigarh Amendment) Act, 1973 (Act No. 17 of 1973) published in the Gazette of India on April 10, 1973, by which some amendments were made in the principal Act insofar as it is applicable to the Union Territory of Chandigarh. I am afraid this amendment does not help the respondents in any manner. Section 2 of the Amending Act is in the following terms :- "2. In Section 3 of the Capital of Punjab (Development and Regulation) Act, 1952, as in force in the Union Territory of Chandigarh (hereinafter referred to as the principal Act), - (i) in Sub-section (1), for the words 'The Central Government may', the words 'Subject to the provisions of this section, the Central Government may' shall be substituted; (ii) for Sub-section (3), the following Sub-section shall be substituted, namely :- (3) Notwithstanding anything contained in any other law for the time being in force, until the entire consideration money together with interest or any other amount, if any, due to the Central Government on account of the transfer of any site or building, or both, under Sub-section (1) is paid, such site or building, or both, as the case may be, shall continue to belong to the Central Government." The bare reading of the amended Section 3 would show that any site or building etc. would continue to belong to the Central Government till the entire consideration money together with interest or any other amount, if any, due to the Central Government, on account of transfer of any site or building or both under sub-section (1) is paid. In the instant case as stated above, the entire amount was paid as far back as in the year 1964 and the conveyance deed for the valid transfer of ownership was also executed in favour of petitioner No. 1. Hence, this amendment will not in any way help the respondents. Section 3 of the Amending Act (17 of 1973) deals with the changes which have been made in Section 8 of the principal Act and Section 8-A has been substituted. It mainly deals with default in payment of the instalments but in the present case no instalment is due from the petitioner No. 1. By virtue of Section 4 of the Amending Act, Section 9 of the principal Act is omitted. The bare reading of the amendments in the principal Act would show that the same do not help the respondents at all. In case, the full payment is made and ownership is transferred by way of conveyance deed, resumption of site or building cannot take place.
(3.) No other point is urged.;