B.S. Dhillon, J. - (1.) THE Petitioners in this case are purchasers of a plot each from the State of Punjab. The sale was made under Section 3 of the Punjab New Mandi Townships (Development and Regulation) Act, 1960 (hereinafter called Act). The Petitioner No. 1 having failed to comply with the terms and conditions of sale, the Administrator exercising the powers as such under Section 13 of the Act, resumed the sites allotted to him by passing an order dated 18th October, 1974, copy of which is Annexure P/3, which order is sought to be impugned in this writ petition. The Petitioners have challenged the Constitutional validity of Section 13 of the Act. With a view to appreciate the contentions raised by the learned Counsel for the Petitioners, the relevant provisions of the Act may be reproduced. Section 3 of the Act is as follows: 3. Powers of State Government to declare New Mandi Townships and to transfer lands and buildings therein - - (1) The State Government may, from time to time, by notification in the official Gazette, declare any area to be a new mandi township for the purposes of this Act to be known by such name as may be specified in the notification; (2) The State Government may sell, lease or otherwise transfer by auction, allotment or otherwise any land or building belonging to or vested in the State Government in any new mandi township on such terms and conditions as it may, subject to any rules that may be made under this Act, deem fit to impose. (3) Any amount due to the State Government on account of the sale, lease or transfer or any site or building under Sub -section (2) shall be first charge on that site or building and notwithstanding anything contained in any other law for the time being in force, no transferee shall be entitled to sell, mortgaged or otherwise transfer any right, title or interest in the site or building transferred to him under Sub -section (2) except by way of a lease from month to month until the amount mentioned as first charge under this sub -section has been paid in full. Sections 10, 11, 12 and 13 of the Act are in the following terms: Levy of fees for amenities: 10. For the purpose of providing, maintaining or continuing any amenity in the new mandi township, the State Government may levy such fees as it may consider necessary in respect of any site or building on the transferee or occupier thereof. Imposition of penalty: 11. Where any transferee or occupier defaults in the payment of any fee levied under this Act and such default has continued for three months from the due date, then, in addition to the arrears, a sum equal to twenty per centum of that amount shall be recovered from the transferee or occupier, as the case may be, by way of penalty. Mode of recovery of arrears: 12. In the event of default in the payment of any amount due under this Act, the outstanding amount together with the penalty, if any, may be recovered from the transferee or occupier, as the case may be, as arrears of land revenue. Forfeiture for breach of conditions of transfer: 13 (1) Notwithstanding anything contained in any other law for the time being in force, the Administrator may resume any site or building if the transferee or occupier persistently fails to use such site or building for the purpose for which it is sold, leased or transferred or fails to build upon the site within the period allowed or fails to pay the sale price or lease money of such site or building due under this Act or the rules made thereunder. (2) In the event of such resumption of any site or building, any money paid or deposited in respect of such site or building may also be forfeited: Provided that no order of resumption or forfeiture of money -shall be passed under this section without affording the defaulter an opportunity to show cause against it. (3) The resumed site or building, as the case may be resold by auction and any loss resulting from such resale which is not covered by the amount forfeited under Sub -section (2), shall be recoverable as arrears of land revenue from the defaulter.
(2.) THE constitutional validity of Section 13 has been challenged on the grounds of violation of the fundamental rights of the Petitioners as contained in Articles 19(1)(f) and 14 of the Constitution. It has been contended that the Petitioners became the owners of the site and therefore, no resumption of the site could be ordered by the Administrator under the provisions of Section 13 of the Act under which the impugned order has been passed as Section 13 of the Act is violative of Articles 19(1)(f) of the Constitution. The second contention raised is that Section 13 of the Act is violative of Articles 14 inasmuch as that Sections 12 and 13 of the Act provide for the same matter and there is no indication as to when action should be taken under either of these sections. The learned Counsel for the Petitioners places reliance on a decision of the Supreme Court in Jagdish Chand Radhey Shyam v. The State of Punjab and Ors. : AIR 1972 S.C. 2587 and a Division Bench decision of this Court in Tej Ram Sharma v. The State of Haryana and Ors., 1974 PLR 477. The provisions of Section 9 of the Capital of Punjab (Development and Regulation) Act, 1952 (hereinafter called the Capital Act) were under attack in Jagdish Chand Radhey Shyam's case (supra). It will be useful if the relevant provisions of the said Act are also reproduced so as to have a complete comparison between the provisions of the said Act and the provisions which are now under challenge. Sections 3, 8 and 9 of the Capital Act were as follow: 3(1) The State Government may sell, lease or otherwise transfer, whether by auction, allotment or otherwise, any land or building belonging to the Government in Chandigarh on such terms and conditions as it may, subject to any rules that may be made under this Act, think fit to impose. (2) The consideration money for any transfer under Sub -section (1) shall be paid to the State Government in such manner and in such instalment and at such rate of interest as may be prescribed. (3) The unpaid portion of the consideration money together with interest or any other amount if any due to the State Government on account of the transfer of any site or building under Sub -section (1) shall be a first charge on that site or building as the case may be and notwithstanding anything contained in any other law for the time being in force, no transferee shall except with the previous permission in writing of the Estate Officer, be entitled to sell, mortgage or otherwise transfer (except by way of lease from month to month) any right, title, or interest in the site or building transferred to him under Sub -section (1) until the amount which is a first charge under this sub -section has been paid in full to the State Government. 8. (1) Where any transferee makes any default in the payment of any consideration money or instalment thereof or any other amount due on account of the transfer of any site or building under Section 3 or of any rent due in respect of any lease, or where any transferee or occupier makes any default in the payment of any fee or tax levied under Section 7, the Estate Officer may direct that in addition to the amount of arrears, a sum not exceeding that amount shall be recovered from the transferee or occupier, as the case may be, by way of penalty. (2) In the case of any default in the payment of an amount payable under this Act, the outstanding amount in default together with any sum, if any, directed to be paid by way of penalty under Sub -section (1) may be recovered from the transferee or occupier, as the case may be, in the same manner as an arrear of land revenue. 9. In the case of non -payment of consideration money or any instalment thereof on account of the transfer of any site or building under Section 3 or of any rent due to respect of the lease of any such site or building or in case of the breach of any other conditions of such transfer or breach of any rules made under this Act, the Estate Officer may, if he thinks fit, resume the site or building so transferred and may further forfeit the whole or any part of the money, if any, paid in respect thereof. The provisions of Section 9 of the Capital Act were challenged on the ground of the same being violative of Articles 19(1)(f) and 14 of the Constitution. The challenge was repelled by this Court but in appeal, the provisions of Section 9 of the Capital Act were declared ultra vires Articles 19(1)(f) and 14 of the Constitution. Their Lordships of the Supreme Court, after construing the language of the provisions as contained in Section 3 read with Sections 8 and 9 of the Capital Act, came to the conclusion that it was obvious that the transferee became the owner of the property on his depositing the first instalment and the State was divested of the ownership of the property. The said property could not be expropriated by the State by resorting to provisions of Section 9 of the Capital Act and thus it was found that the said provisions contravene Article 19(1)(f) of the Constitution. It was further found that under the provisions of Section 8 of the Capital Act, consideration money etc. could be recovered as arrears of land revenue whereas under Section 9 of the Capital Act, the Estate Officer had been given powers to resume the site on the ground of nonpayment of consideration etc. It was, therefore, held that two remedies were provided to meet the same situation and there being no guidelines provided as to which remedy may be made applicable in given circumstances and one remedy being more drastic than the other therefore discrimination of the subject was inherent. Thus, it was held that the provisions of Section 9 of the Capital Act were ultra vires Article 14 of the Constitution as well.
(3.) WITH a view to appreciate the contentions raised in this case, the difference in the provisions of the Act as compared to the above -referred provisions of the Capital Act may be noticed. The provisions of Section 3(1) of the Capital Act and the provisions of Section 3(2) of the Act are pari materia the same except in the Capital Act the land or building in question was situate in Chandigarh whereas in the Act the land or building is situate in new mandi townships. As regards the provisions of Sub -section (3) of Section 3 of the Capital Act and the provisions of Sub -section (3) of Section 3 of the Act, the first clause in both these sub -sections is almost in the same language as the amount due on account of sale, lease or transfer etc. has been provided to be first charge on that site or building notwithstanding with anything contained in any other law. It is no doubt true that in the said provisions of the Capital Act the words used are "consideration money" whereas in the Act the words used are "any amount due to the State Government on account of sale, lease and transfer etc.". But there does not appear to be any material difference. As regards the other sub -clause in the same sub -section in the Capital Act, it has been provided that no transferee shall, except with the previous permission in writing of the Estate Officers, be entitled to sell, mortgage or otherwise transfer (except by way of lease from month to month) any right, title or interest in the site or building transferred to him until the amount which is first charge under this section has been paid in full to the State Government, whereas in the Act it has been provided that no transferee shall be entitled to sell, mortgage or otherwise transfer any right, title or interest in the site or building, transferred to him under Sub -section (2) except by way of lease from month to month until the amount mentioned as first charge under this section has been paid in full. It would thus be seen that in the Capital Act, the transferee could sell, mortgage or otherwise transfer the site in question with the previous permission in writing of the Estate Officer. Under the provisions of the Act, no such right has been given to the transferee until the amount mentioned as charge has been paid in full.;