Punjab-Haryana High Court
M/S S.S.Traders And Anr vs Ut. Chandigarh And Ors on 27 October, 2014
Author: Hemant Gupta
Bench: Hemant Gupta
CWP No.19654 of 2008 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CWP No.19654 of 2008
Date of decision:27.10.2014
M/s S.S. Traders and another ....Petitioners
VERSUS
Union Territory of Chandigarh and others .....Respondents
CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA
HON'BLE MS. JUSTICE JAISHREE THAKUR
Present: Mr. Puneet Bali, Senior Advocate with
Mr. Vaibhav Jain, Advocate for the petitioners.
Mr. Sanjeev Sharma, Senior Advocate with
Mr. Ashish Rawal, Advocate for respondents.
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HEMANT GUPTA, J.
The challenge in the present writ petition is to an order dated 04.01.2006 (Annexure P-22) passed by Estate Officer, Chandigarh whereby lease of SCO No.22, Sector 20 C & D, Chandigarh was cancelled and the orders passed in the appeal and revision on 15/23.10.2007 (Annexure P-27) and 09.07.2008 (Annexure P-31) affirming the said order of cancellation of lease.
The petitioner No.1 is the proprietorship firm of petitioner No.2, engaged in the business of Wholesale Cloth. In the year 1982, the petitioner claims that the Chandigarh Administration decided to set up a Wholesale Cloth Market in Sector 20-C & D, Chandigarh for the members of the Wholesale Cloth Association. A scheme was floated in the year 1983 when the applications were invited from the members of Wholesale Cloth Merchant Association (Regd) who fulfill the conditions of eligibility. Some of the GULATI DIWAKER 2014.11.03 11:21 I attest to the accuracy and authenticity of this document CWP No.19654 of 2008 2 conditions were that the interested person must be carrying on the Wholesale Cloth Business for a period of 10-15 years; he should have been bona fide resident of Chandigarh for the last 10-15 years and also was required to produce purchase bills and Income Tax Returns.
The petitioner applied for a plot along with earnest money of Rs.90,000/-. The petitioner was one of the 37 applicants who applied for 54 plots. On 22.05.1985, commercial site No.22, measuring 153.333 square yards was allotted for a total premium of Rs.3,52,666/- and Rs.8,816.56p was payable as yearly rent for first 33 years. Subsequently 4 other applications were received and plots were allotted. The lease has been cancelled for the reason that as per condition No.16(b) of the allotment letter, all lessees were required to shift from the present premises immediately after the completion of the building for which a site in the Wholesale Cloth Market has been allotted and that petitioners have undertaken not to hand over the possession to their relative and others who carry on the same business and abide by the terms and conditions of the Capital of Punjab (Development and Regulation) Act, 1952 and the Rules contained there under, whereas the petitioner has violated such condition.
The learned Estate Officer found that SCO Site No.22, Sector 20-C & D, Chandigarh was found locked at the ground floor at the time of inspection whereas the first floor is used for various type of offices and second floor is being used as study institute. On the other hand SCO No.821, Sector 22, Chandigarh was found to be used by Mr. Sulekh Chand Jain son of Sh. Lakshmi Chand, resident of House No.3011, Sector 20-D, Chandigarh and that the SCO site No.22, Sector 20-C & D, Chandigarh is not opened regularly. Thus, it GULATI DIWAKER 2014.11.03 11:21 I attest to the accuracy and authenticity of this document CWP No.19654 of 2008 3 was found that the petitioner has not shifted to SCO No.22, Sector 20- C & D, Chandigarh and has not vacated the earlier premises occupied by them. Such order was affirmed in appeal and revision.
We have heard learned counsel for the parties. Before, we examine the arguments raised; the relevant clause from the letter of allotment for Sector 20 site needs to be extracted. It reads as under:-
"16. The site and the buildings erected thereon shall be used only for the purpose of Wholesale Cloth for which it has been leased out and no change in trade will be allowed at any stage and the defaulter will be evicted even without notice if it comes to the knowledge of the Administration at any stage.
16(b). You shall shift from the present premises immediately after the completion of the building for which a site in the Whole Sale Cloth Market has been allotted and shall not handover the present premises to your relatives or other who carry on the same business and may claim for allotment of a plot in the Whole Sale market at any stage."
Learned counsel for the petitioner argued that sub-Rule (11) of Rule 17 of the Chandigarh Lease Hold of Sites and Buildings Rules, 1973 has been amended vide notification dated 31.03.2006 whereby all the allottees of commercial sites/premises are permitted to pursue any trade mentioned in Schedule-II without applying for conversion of trade and without paying conversion fee. The said notification reads as under:-
"In partial modification of Chandigarh Administration, Finance Department Order dated 25th June, 2002 issued,-vide Endorsement bearing No.28/8/3-UTFI(3)-2002/6479, dated 17th July, 2002, and in exercise of powers conferred by second proviso to sub-rule (3) of Rule 9 of the Chandigarh (Sale of Sites and Buildings) Rules, 1960 and sub-rule (11) of Rule 17 of the Chandigarh Lease Hold of Sites and Buildings Rules, 1973 read with Sections 3 and 22 of the Capital of Punjab (Development and Regulation) Act, 1952, the Administrator, Union Territory, Chandigarh is pleased to allow all GULATI DIWAKER 2014.11.03 11:21 I attest to the accuracy and authenticity of this document CWP No.19654 of 2008 4 allottees of commercial sites/premises in Chandigarh except Industrial Sites in Industrial Area, Phase-I and II, Chandigarh, to pursue any trade mentioned in Schedule-II, i.e. (A) New General Trade and (B) New Special Trade Category, appended to the aforesaid rules without applying for conversion of trade and without paying conversion fee subject to the following conditions:-
1. Migration to seven trades are mentioned in Schedule-II (B) New Special Trade Category from other Trades of Category (A) New General Trade shall be allowed with prior permission of the Chief Administrator and subject to examination and clearance from the Environmental, Health and Traffic considerations and further subject to the condition that hygiene and sanitation laws are not violated.
2. The conversion of trade will be applicable to ground floor of all commercial sites/premises only.
3. The allottee/traders will, however, give an intimation to the Estate Officer, Union Territory, Chandigarh in writing about the trade being pursued by them."
Learned counsel for the petitioner also relies upon a Division Bench judgment of this Court reported as 2012(2) RCR (Civil) titled Shri Sham Lal Sharma v. Union of India in which one of us (Hemant Gupta J.) was a member dealing with the aforesaid notification. It has been held as under:-
"9.We do not find any merit in the argument raised by learned counsel for the respondents. The trades of Timber and Transport were part of special trade in Schedule-I and now form part of the New General Trade in Schedule-II with effect from 5.6.2002 at serial numbers 98 and 99. The policy reproduced above, as notified on 17.7.2002, did not specifically provided conversion of special trade of Timber or Transport on payment of conversion charges. However, the situation has undergone change with the modifications incorporated by the Notification dated 31.3.2006. The Administration has taken a conscious decision for permitting the trades, mentioned in Schedule II. The allottee or occupier does GULATI DIWAKER 2014.11.03 11:21 I attest to the accuracy and authenticity of this document CWP No.19654 of 2008 5 not require prior permission to change user or payment of conversion charges except information as part of condition no 3 of the notification dated 31.3.2006.
10. Such modifications now permit use of commercial sites except industrial sites for any trade mentioned in "(A) New General Trade" and "(B) New Special Trade" of Schedule-II without applying for the conversion of trade and without paying conversion fee. The restriction is only in respect of migration to seven trades as mentioned in New Special Trade Category of Schedule II. The seven trades alone require prior permission of the Chief Administrator. Therefore, in terms of the Notification dated 31.3.2006, all allottees of commercial sites/premises are permitted to use the sites allotted for any purpose mentioned in Schedule II except in respect of seven trades."
It is thus contended that though the petitioner is using ground floor of the site in Sector 20-C and D, Chandigarh for the Wholesale Cloth business but even if he is not using the same, the site cannot be cancelled in view of the amended Rules vide notification dated 31.03.2006. It is also contended that SCO No.821, Sector 22-A, Chandigarh is owned by one Chhajju Ram wherein the petitioner was a tenant. The petitioner has vacated that building and shifted its business activities in Sector 20. Though, Mr. Sharma controverted the arguments by arguing that Sulekh Chand Jain, the one who was found carrying on the business in SCO No.821, Sector 22-A, Chandigarh is a relative of the petitioner for the reason that he is witness to the conveyance deed of Sector 20 as well executed by Administration in favour of the petitioner, and thus, it is not a matter of co-incidence that he happens to be a witness as he is in fact is a member of the family. Therefore, the petitioner has violated condition No.16(b) of the conditions of the allotment.
GULATI DIWAKER 2014.11.03 11:21 I attest to the accuracy and authenticity of this document CWP No.19654 of 2008 6
We find that condition No.16(b) is in respect of entitlement of a plot in the Wholesale Market to a person engaged in the business of whole sale cloth. It is evident from the fact that condition No.16(b) of the allotment contemplates that the possession shall not be handed over to any of the relatives who carry on the same business and "may claim for allotment of a plot in the Whole Sale market any stage".
We find that the tenant who is in occupation of a site is expected to use the premises for any of the permissible purposes. The shop in Sector 22 now can be used for any General Trade except that the tenant cannot carry any prohibited trade. A tenant cannot be forced to vacate the premises only for the reason that an alternative plot is being allotted for a specified category. After the amendment in the Regulations on 31.03.2006, all trades are permitted in SCO No.821, Sector 22-A, Chandigarh and also in SCO No.22, Sector 20-C & D, Chandigarh.
Even if the occupant of shop in Sector 22 happens to be the relative of the petitioner but the restriction in clause 16(b) is for the allotment of another plot to a relative. It does not prohibit the occupant to carry any permissible business. The Administration has and cannot have any right to prohibit any person to carry on the permissible activities in the site allotted to a person or in occupation of a tenant. We also find that no such restriction can be imposed that a person who is being allotted a plot will hand over vacant possession of the site in his possession to the owner even in face of the protection available to him under the East Punjab Urban Rent Restriction Act, 1949. The only requirement is that the old premises should be not be GULATI DIWAKER 2014.11.03 11:21 I attest to the accuracy and authenticity of this document CWP No.19654 of 2008 7 used for the Wholesale Cloth business. The inspection report produced by Mr. Sharma carried out on 17.10.2014 shows that Sulekh Chand Jain is using the site for the sale of Ladies suits which is actually not the same or the similar as the Wholesale Cloth business.
Since the site in SCO No.821, Sector 22-A, Chandigarh is being used for the permissible use and so is the site in SCO No.22, Sector 20-C & D, Chandigarh, we find that the order of cancellation of lease is not sustainable and consequently, the order dated 04.01.2006 and the orders passed in appeal and revision are set aside.
The present writ petition is disposed of accordingly.
(HEMANT GUPTA)
JUDGE
OCTOBER 27, 2014 (JAISHREE THAKUR)
'D. Gulati' JUDGE
GULATI DIWAKER
2014.11.03 11:21
I attest to the accuracy and
authenticity of this document