Important Judgments

Sale by way of Power of Attorney Registration of Execution of Power of Attorney is recognized by Power of Attorneys Act, 1882 Attorney is an agent Power of attorney may be authorized generally to sell the immovable property described in the instrument or to sell, lease & mortgage the specific property Power of attorney, when devised as a mean to transfer interest in the property, would require stamp duty as a conveyance Such instances holds good in respect of the execution of power of attorney in Chandigarh as well Registering Authority is duty bound to examine; whether the Power of Attorneys are being executed for consideration Such power of attorneys executed after 15.11.2007 is for consideration and have to bear, the stamp duty as a conveyance If such instruments have been so stamped, the Sub Registrar is bound to register the sale deeds else such power of attorneys cannot be acted upon unless the deficiency in the stamp duty is made good in accordance with law. Amritpal Singh v. Chandigarh Administration & others, 2012(3) L.A.R. 288 (P&H DB).

Capital of Punjab (Development and Regulation) Act, 1952 (27 of 1952)

Section 8-A, 10 Resumption of property Power of Appellate/ Revisional Authority Appellate and revisional Authorities under the 1952 Act while invoking their powers under Section 10(2) & (4), shall be duty-bound to exercise their respective jurisdictions in the manner as has been interpreted in paragraphs 84 to 86 of this order;

(i) Powers enjoyed upon by the appellate authority are thus vast, wide and expansive enough to re-appraise the evidence led under Section 8-A, to take notice of the subsequent events, if any, and form an independent view on the sustainability of the resumption order.

(ii) The wings of its power must always prompt the appellate authority and it shall be so obligated to reverse the resumption order no sooner does it find that during the pendency of the resumption or appellate proceedings, the very basis to initiate such proceedings within the mischief of Section 8-A(1) has completely disappeared. In other words, it cannot be said that even if the ground of resumption is nonexistent yet the appellate authority would have a discretion to confirm the order of resumption and dismiss the appeal. Such a misconstruction of Section 10(2) of the Act would lead to arbitrary and discriminatory consequences against the very ethos of Article 14 of the Constitution.

(iii) The unconventional wide power given to the revisional authority to alter i.e. to make different, to modify; or change in character, appearance or composition and/or to rescind i.e. to abrogate or cancel, to repeal or annul or to cut away, to annul too are choate and encompasses the revisional authority to take over and exercise the powers of the Estate Officer or the Appellate Authority to derail the resumption proceedings wherever the cause of initiation has vanished.

(iv) This Court do not foresee even an iota of discretion with the appellate or revisional authorities except to set aside and annul the resumption proceedings wherever the cause of inception has eclipsed except however in a case of repeated violations where the allottee had already been forewarned by the appellate or revisional authority on previous occasion(s).

(v) Similarly, dropping of the resumption proceedings by the appellate or revisional Authorities would not forestall such authorities from imposing exemplary alternative penalty like fine etc. on the allottee-in-default in accordance with law.

(vi) Any other construction of Section 10(2)&(4) would circumvent the true amplitude of the phrases vary, reverse, alter or rescind as they are to be construed keeping in view the legislative policy of the 1952 Act, namely, the Union Territory of Chandigarh as a planned regulated City.

Dheera Singh v. UT Chandigarh Admn. & Ors., 2013(1) L.A.R. 1 (P&H Larger Bench).

Capital of Punjab (Development and Regulation) Act, 1952 (27 of 1952)

Section 8-A Resumption Power Usage of Guidelines for Estate officer Estate Officer, UT Chandigarh is directed to follow hitherto the directions-cum-observations made in paragraphs 81, 82 & 87 while initiating proceedings for resumption of a site or building, the non-compliance whereof shall vitiate the resumption proceedings besides other consequences

(i) The doctrine of proportionality as ruled in M/s. Teri Oat Estates Pvt. Ltd. (2004 L.A.R. 31 (SC) = (2004) 2 SCC 130) is now an integral part of Section 8-A to protect an allottee against unreasonable or arbitrary action by the Authority under that provision. 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.

(ii) 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 byelaw 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;

(iii) For example allottee tenant starts misusing the premises, the landlord, without any inordinate delay, initiates eviction proceedings under Rent Act 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 byelaws? 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;

(iv) 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;

(v) Contrary to it and again for illustrative purposes, if a premises is being misused by the tenant with a tacit understanding or in connivance with the landlord and the so-called eviction proceedings are a ruse to defy and defeat the action under the 1952 Act, the Estate Officer shall be well within his right to return such a finding of fact on appreciation of evidence on record, and hold that the misuse of premises by the tenant shall be deemed to be violation of Building Byelaws by the allottee-cum-landlord;

(vi) Nonetheless, direction is that resumption being the last resort, the Estate Officer shall not henceforth initiate proceedings u/s 8-A 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.

Dheera Singh v. UT Chandigarh Admn. & Ors., 2013(1) L.A.R. 1 (P&H Larger Bench).

Appointment of Assistant District Attorney/Public Prosecutor/Deputy Advocate General as Addll. District and Session Judge, Haryanas Case

Honble Supreme Court held

On appointment as Assistant District Attorney/Public Prosecutor/Deputy Advocate General, they do not ceased to be advocate and since each one of them continued to be advocate, they cannot be considered to be in the service of the Union or the State within the meaning of Article 233(2) of the Constitution, the period during which they have been working as such has to be considered as the period practicing law Their appointment as Addll. District and Session Judge, Haryana, upheld. Deepak Aggarwal v. Keshav Kaushik and others, Date of Decision 21.1.2013.

Land Acquisition Act, 1894 (1 of 1894)

Section 4, 5-A, 6 Acquisition of land Objections In Report of LAO In the opening paragraph under the heading Observations, the LAO recorded that he had seen the revenue records and conducted spot inspection On the asking of Court as to when the LAO had summoned the revenue records and when he had conducted spot inspection no document produced to substantiate the statement contained in the two reports of the LAO This leads to an inference that, in both the reports, the LAO had made a misleading and false statement about his having seen the revenue records and conducted spot inspection Mere reproduction of the substance of the objections cannot be equated with objective consideration thereof in the light of the submission made by the objectors during the course of hearing Held, LAO failed to discharge the statutory duty cast upon him to prepare a report after objectively considering the objections filed u/s 5A(1) and submissions made by the objectors during the course of personal hearing. Surinder Singh Brar and others etc. v. Union of India and others, 2012(3) L.A.R. 151 (SC).

Section 4, 5-A, 6 Acquisition of land Objections Public purpose Formation of opinion on the issue of need of land for a public purpose and suitability thereof is sine qua non for issue of a declaration u/s 6(1) Any violation of the substantive right of the landowners and/or other interested persons to file objections or denial of opportunity of personal hearing to the objector(s) vitiates the recommendations made by the Collector and the decision taken by the appropriate Government on such recommendations Recommendations made by the Collector without duly considering the objections filed u/s 5A(1) and submissions made at the hearing given u/s 5A(2) or failure of the appropriate Government to take objective decision on such objections in the light of the recommendations made by the Collector will denude the decision of the appropriate Government of statutory finality. Surinder Singh Brar and others etc. v. Union of India and others, 2012(3) L.A.R. 151 (SC).

Section 4, 5-A, 6 Section 5-A Acquisition of land Public purpose Objections Hearing of Hearing required to be given u/s 5A(2) to a person who is sought to be deprived of his land and who has filed objections u/s 5A(1) must be effective and not an empty formality Collector has the freedom of making further enquiry as he may think necessary Appropriate Government is obliged to consider the report, if any, made u/s 5A(2) and then record its satisfaction that the particular land is needed for a public purpose This exercise culminates into making a declaration that the land is needed for a public purpose and the declaration is to be signed by a Secretary to the Government or some other officer duly authorised to certify its orders. Surinder Singh Brar and others etc. v. Union of India and others, 2012(3) L.A.R. 151 (SC).

Doctrine of estoppels

Punjab Village Common Lands (Regulation) Act, 1961 Punjab Village Common Lands (Regulation) Rules, 1964 Transfer of public property against the Statute A Gram Panchayat holds property, in trust, for and on behalf of inhabitants of a village and shall deal with its property only in accordance with statutory provisions set out in the 1961 Act and the Rules, 1964 Any deviation from the Act, 1961or the 1964 Rules would render transfer of land whether of ownership or possession, null and void A sale made by a Gram Panchayat without previous approval of the Government shall be null and void and no amount of acquiescence, negligence or error on the part of a Gram Panchayat shall have the affect of conferring legitimacy upon such a transaction Doctrine of estoppels would not be attracted. Judgment in Smt. Malkhanis case, 2001(4) R.C.R.(Civil), 25 is over-ruled. Kesar Singh and another v. State of Punjab through its Director, Rural Development and Panchayats, Punjab and another, 2012(2) L.A.R. 606 (P&H Full Bench).

East Punjab Urban Rent Restriction Act, 1949 (III of 1949), Section 15

Haryana Urban (Control of Rent and Eviction) Act, 1973 (11 of 1973), Section 15

Fixation of rent Interlocutory order Appellate Courts jurisdiction Revisional Courts Jurisdiction In Harjit Singh Uppals case, (2011) 11 SCC 672, no question was raised or debated that all orders passed by the Rent Controller are appealable or not Findings recorded have to be read in the context of the issues raised and decided In terms of the notification dated 14.04.1947, an order of eviction is appealable The court has held that the order of fixation of provisional rent could be challenged in appeal against the order of eviction It was not a case, where only an order of fixation of provisional rent was subject matter of challenge Observations that the interlocutory order of fixation of rent is appealable is an obiter, as in the aforesaid case, an appeal was filed against the final order of eviction, wherein challenge was made to an interlocutory order passed during the pendency of the proceedings Therefore, the judgment in Harjit Singh Uppals case does not lay down any proposition of law that all orders passed by the Rent Controller are appealable. Tirlok Singh Anand v. M/s Prem Chand & Sons and others, 2012(3) L.A.R. 50 (P&H DB).

East Punjab Urban Rent Restriction Act, 1949 (III of 1949), Section 15

Haryana Urban (Control of Rent and Eviction) Act, 1973 (11 of 1973), Section 15

Order Interlocutory order Appellate Courts jurisdiction Revisional Courts Jurisdiction In terms of the notification dated 14.04.1947, orders passed by the Rent Controller under Sections 4, 10, 12 & 13 alone are appealable in both the States of Punjab and Haryana and that all other orders passed by the Rent Controller are not subject matter of appeal Orders other that the orders which are appealable, can be disputed only by way of a revision petition before this Court. Tirlok Singh Anand v. M/s Prem Chand & Sons and others, 2012(3) L.A.R. 50 (P&H DB).

Punjab Village Common Lands (Regulation) 1961 (18 of 1961)

Section 7 Eviction petition Demarcation Fresh demarcation Requirement of Though the Assistant Collector 1st Grade, exercises summary powers u/s 7 of the 1961 Act to

remove encroachments from public land, it is imperative, that before the Assistant Collector, passes an order, he should order demarcation and only thereafter proceed to decide the matter Once a petition u/s 7 of the 1961 Act is filed, it would be necessary for the Assistant Collector to order a fresh demarcation and thereafter proceed to either allow or reject the petition. Siri Krishan @ Krishan Kumar v. Collector, District Rewari & others, 2012(3) L.A.R. 122 (P&H DB).

Punjab Co-operative Societies Act, 1961 (25 of 1961) Section 55 Termination of employee of Society Service dispute of an employee of Society Reference to Registrar Maintainability of Dispute relating to the termination or any other service dispute of an employee of the co-operative society is not referable to the arbitration because such disputes have nothing to do either with the constitution, management or business of the co-operative society. Jasbir Singh and others v. Commissioner (Appeals), Jalandhar Division and others, 2011(3) L.A.R. 1 (P&H FB).

Section 68, 69 Haryana Co-operative Societies Act, 1984 (22 of 1984), Section 114, 115 Revision Maintainability of Remedy of revision is barred only in case where appeal against the impugned order lies u/s 68 of the Punjab Act or u/s 114 of the Haryana Act. Jasbir Singh and others v. Commissioner (Appeals), Jalandhar Division and others, 2011(3) L.A.R. 1 (P&H FB).

Section 69 Haryana Co-operative Societies Act, 1984 (22 of 1984), Section 115 Service matter of Society Revision Maintainability of Remedy of revision is not barred in those cases where aggrieved person has a right of appeal under the Statutory Service Rules or Common Cadre Rules An aggrieved party can challenge the order of Registrar or Deputy Registrar passed as an Appellate Authority under the Statutory Rules or Common Cadre Rules by filing a revision u/s 69 of the Punjab Act or u/s 115 of the Haryana Act as no remedy of appeal has been provided u/s 68 of the Punjab Act or u/s 114 of the Haryana Act against such order But, if the appellate order is passed by the official of the Society and not by the Registrar or Deputy Registrar of the Co-operative Society, no revision is maintainable against such an order Revision is maintainable only against the order passed by the authority under the Act or a proceeding arising out of the Act and the Rules framed there under. Jasbir Singh and others v. Commissioner (Appeals), Jalandhar Division and others, 2011(3) L.A.R. 1 (P&H FB).

Section 69 Dismissal of employee of Society Appeal under Common Cadre Rules Revision Maintainability of Against dismissal order, the petitioner filed an appeal before the Registrar, Co-operative Societies under the Common Cadre Rules If an order has been passed by the Registrar, exercising the powers of the Appellate Authority under the Statutory Rules or Common Cadre Rules, a revision against such an order is maintainable. Jasbir Singh

and others v. Commissioner (Appeals), Jalandhar Division and others, 2011(3) L.A.R. 1 (P&H FB).

Registration Act, 1908 (16 of 1908)

Section 17(1A), 49 Specific Relief Act, 1963 (47 of 1963), Section 10 Transfer of Property Act, 1882 (4 of 1882), Section 53-A Agreement to sell Registration of Unregistered document There is no bar as per Section 17(1A) to seek the decree of specific performance of contract in respect of an unregistered contract of sale. Didar Singh v. Nasib Kaur and others 2012(2) L.A.R. 198-205

Punjab Village Common Lands (Regulation) 1961 (18 of 1961)

Section 7, 13-B (For Haryana) Penalty Appeal Pre-deposit of penalty Interpretation of Imposition of blanket liability of pre-deposit of the penalty is an onerous condition In any event, penalty can not be judged by the yardstick of initial amount of tax liability Section 13B of the Act would be read down to incorporate within it the power in appellate authority to grant interim relief in an appropriate case where the grounds so exist by passing a speaking order, even while normally insistence may be made on pre-deposit of penalty In adjudicating the question whether in a particular case interim relief of stay of a portion or the entire penalty has to be granted, the appellate authority would have to give reasons why it proposes to dispense with the normal procedure of insistence on pre-deposit. Ranjit Singh v. State Of Haryana and others, 2012(3) L.A.R. 1 (P&H Larger Bench)

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