Punjab-Haryana High Court
Ram Murti vs Chandigarh Administration And Ors. on 22 April, 2002
Author: Bakshshish Kaur
Bench: Bakshshish Kaur
JUDGMENT G.S. Singhvi, J.
1. The appeal is directed against order dated 18.5.2001 vide which the learned Single Judge allowed the writ petition filed by respondent No. 2, Prem Kumar and quashed order dated 30.6.1993 passed by Advisor to the Administrator, Union Territory. Chandigarh declining his prayer for extension of time.
2. THE FACTS:-
Shri Sohan Lal (predecessor of appellant Ram Murti and proforma respondents) purchased shop site No. 44-45, Sector 27-C, Chandigarh some time in 1955. He leased out the building constructed over the site to respondent No. 2 some time in 1970. After about 14 years, he filed a petition under Section 13 of the East Punjab Urban Rent Restriction Act, 1949 (for short, the 1949 Act) for eviction of respondent No. 2 on the ground of non-payment of rent, materially impairing the value and utility of the premises by making additions and alterations without his consent and sub-letting a part of the premises to his brother. Shri Sohan Lal died during the pendency of the petition and his legal representatives, i.e., the appellant and proforma respondents were brought on record. The Rent Controller, Chandigarh dismissed the petition vide his order dated 15.4,1989. The record of this appeal does not show whether the appellant and proforma respondents had challenged the order of the Rent Controller by filing appeal. In the course of hearing, counsel for the parties gave out that appeal and revision filed against the order of the Rent Controller were also dismissed by the Appellate Authority and the High Court respectively.
3. In the meanwhile, the Assistant Estate Officer, Chandigarh initiated proceedings under Section 8-A of the Capital of Punjab (Development and Regulation) Act, 1952 (as amended by Chandigarh Amendment Act No. 17, 1973) (for short, the 1952 Act) for resumption of the site on the ground of violation of the building rules. He issued notice to the appellant and proforma respondents and M/s Lamona Restaurant, of which respondent No. 2 was the proprietor. They appeared before the Assistant Estate Officer, to whom the case seems TO have been transferred. Shri D.S; Gupta, who had appeared on behalf of the appellant, admitted the existence of violations but expressed his client inability to remove the same by saying that it was respondent No. 2 who had made additions and alterations. Respondent No.2 contested the proposed resumption by contending that it was a device innovated by the landlords to secure his eviction because the proceedings initiated by them under the 1949 Act had failed. After considering the assertions made by the appellant and respondent No.2, the Assistant Estate Officer passed order dated 18.1,1990 for resumption of the site and forfeiture of 10% of the consideration money, i.e. Rs. 1100/- with interest on the ground of violation of the building rules and failure of the owners to remove the violations despite notice. The appellant and proforma respondents did not challenge the order of resumption apparently, because they were interested in seeking eviction of respondent No.2. However, the latter challenged the order of resumption by filing appeal under Section 10 of the 1952 Act, which was dismissed by Chief Administrator, Chandigarh Administration vide order dated 4.2.1992. The revision filed by respondent No. 2 was allowed by the Advisor to the Administrator, Union Territory, Chandigarh and order of resumption was set aside subject to the condition that violations are set right or got compounded within 6 months. The operative part of the revisional order dated 13.5.1992 reads as under;-
"After hearing the parties and in view of the eargreness of the tenant to remove the violations which are removable and getting the other compoundable, I set aside the impugned order, restore the site to the owner/landlord subject to the condition that the violations are set right or got compounded within six months rec konable from the despatch of this order, failing which the impugned order shall become operative. The forfeiture already imposed shall stand paid by the landlord within the aforesaid period of six months. A copy of the order be sent to the landlord for immediate compliance."
4. After about six months, respondent No. 2 filed an application for extension of time reiterating his readiness to remove the violations or get the same compounded. He tried to explain the delay by stating that the landlords were not cooperating. The appellant and other legal heirs of late Shri Sohan Lal contested the application and pleaded that the same be dismissed. By an order dated 30.6.1993, Advisor to the Administrator, Union Territory, Chandigarh dismissed the application of respondent No. 2 by recording the following observations;-
"After hearing the parties and going through the record of the Estate Officer, I find that the former Advisor to the Administrator vide his order dated 13.5.1992 restored the site to the owner/landlord subject to the condition that the violations are set right or get compounded within 6 months reckonable from the despatch of the order failing which the impugned order was to come into operation. The forfeiture already imposed was allowed to stand and to be paid within a period of 6 months by the landlord. Even this order was not complied with. Although the order was passed on 13.5.1992 yet the applicant has preferred an application for extension of time limit and accepting the compounding fee after a lapse of 6 months. No explanation has been given for the delay in filing an application after such a long period. Thus, I do see no reason to interfere with the order passed by my predecessor on 13.5.1992 as such dismiss the present application. Since the applicant is affected party and is likely to suffer in case he is put of premises, I give four weeks time from despatch of the order to the tenant to seek appropriate remedy. The Estate Officer shall be competent to conclude the eviction proceedings immediately thereafter."
5. Respondent No.2 challenged orders dated 13.5.1992 and 30.6.1993 in CWP No. 9285 of 1993. He averred that violations had been committed by the landlord and, therefore, he could not have been indirectly penalised by way of eviction in the grab of resumption of the site.
6. The learned Single Judge allowed the writ petition and granted three months further time to respondent No.2 to remove the violations in terms of order dated 13.5.1992. The reasons assigned by the learned Single Judge for quashing order dated 30.6.1993 read as under;-
"A bare perusal of the impugned order would demonstrate that the same came to be passed on wholly incorrect premises. Six months would have expired on 14.11.1992 and application which was disposed of by the impugned order, came to be filed on 5.11.1992. The application was thus within time as stipulated in the order dated 13.5.1992. The tenant in the application aforesaid had undertaken that he will comply with all the conditions mentioned in order dated 13.5.1992. There would have been no difficulty in complying with the conditions stipulated in the order aforesaid as the changes brought about in the premises by the petitioner were minor in nature, contends Mr. Mehta, learned counsel representing the petitioner. The landlord on the other hand, it appears to this Court, was not interested in getting the order of resumption set aside as it would suit him either by not complying with the conditions mentioned in the order dated 13.5.1992, thus, resulting into resumption of the site or by filing the eviction petition. It may, however, be recalled that the order dated 13.5.1992 was conveyed to the landlord/land owner and not to the petitioner/tenant. The moment, it came to the notice of the petitioner - tenant that some conditions have been stipulated in the order dated 13.5.1992 which came to be passed in a revision preferred by none other than himself, he filed the application aforesaid and undertook that all conditions shall be complied with by him. It is not understandable as to why the Administrator did not straightway allow such a request which was in tune with the directions given by it. The fact that even this application came to be contested by the landlord would leave no one in doubt that he was interested in seeking eviction of the tenant one way or the other. On receipt of application, the tenant could have been permitted to comply with the conditions which should have been the only concern of the Administration. There is no reason that the Administration would have waited for anything else and not passed the order. In any case, as mentioned above, the order came to be passed on totally incorrect facts. Faced with the situation aforesaid, Mr. Goyal, learned counsel who represents landlord is unable to urge anything in support of the impugned order. The stand taken up by Mr. Saini, learned counsel representing the Administration, is not different. He, however, contends that this Court should not straightway set aside the order and instead remit the same to the Administration to decide the application of the petitioner-tenant de novo. This Court is of the view that this would only delay the matter. This litigation is going on since 1989 when the order of resumption came to be passed and it should not be delayed any further. That apart, this Court has already observed that the Administration had no choice but to pass the order so as to accept the same. The petitioner in this case was only asking to remove the conditions which were imposed by none other than the Administration itself."
7. The appellant, who had not challenged the order of resumption passed by the Assistant Estate Officer, the appellate order passed by the Chief Administrator and revisional order passed by the Advisor to the Administration, has now challenged the order of the learned Single Judge by contending that the permission given to respondent No. 2 to remove the violations is ultra vires to Section 15 of the 1952 Act.
8. Shri Arun Jain invited our attention to Section 15 of the 1952 Act and argued that the permission given by the learned Single Judge to respondent No. 2 to remove the violations within 3 months should be declared illegal because no person other than the owner of the premises can be asked to remove the violations.
9. Shri M.S. Kohli argued that the appellant does not have the locus standi to challenge the order of the learned Single Judge because he had not questioned the legality of the order of resumption dated 18.1.1990 passed by the Assistant Estate Officer and revi-sional order dated 13.5.1992 passed by the Advisor to the Administrator. He submitted that the prayer made by the appellant should be declined because by seeking restoration of the order of resumption, he and proforma respondents want to indirectly achieve what they could not do by filing a petition under Section 13 of the 1949 Act.
10. We have given serious thought to the respective arguments and perused the record In our opinion, the order of the learned Single Judge does not suffer from any legal error and the appeal is liable to be dismissed.
11. For the purpose of deciding whether the direction given by the learned Single Judge entitling respondent No. 2 to remove the violations is ultra vires to Section 15 of the 1952 Act, it will be useful to notice the relevant provision. The same reads as under:
"15. Penalty for breach of rules.- Except as otherwise provided for in this Act, any contravention of any of the rules framed thereunder shall be punishable with fine which' may extend to five hundred rupees, and in case of a continuing contravention, with an additional fine, which may extend to twenty rupees, for each day during which such contravention continues after the first conviction; and the Court while passing any sentence on conviction of any person for the contravention of any rule, may direct that any property or part thereof in respect of which the rule has been contravened, shall be forfeited to the Central Government.
Illustration.' Where an authorised structure has been constructed or any obnoxious material or substance collected or heaped on a site in any unauthorised manner, or where an advertisement board has been set up in contravention of the Advertisements Control Order, such structure, material, substance or board shall be liable to forfeiture, and not the site or building on which the same may be located or fixed:
Provided that if a building is begun, erected or re-erected in contravention of any of the building rules, the Chief Administrator shall be competent to require the building*to be altered or demolished by a written notice delivered to the owner thereof within six months of its having begun or having been completed, as the case may be. Such notice shall also specify the period during which such alteration or demolition has to be completed and if the notice is not complied with, the Chief Administrator shall be competent to demolish the said building at the expense of the owner:
Provided further that the Chief Administrator may, instead of requiring the alteration or demolition of any such building, accept by way of compensation such sum as he may deem reasonable."
12. A bare reading of the provisions quoted above shows that it is attracted only when the Chief Administrator initiates action for imposing penalty for breach of the rules. In the present case, action was not initiated under Section 15 of the Act. Rather, the proceedings were initiated under Section 8-A of the Act for resumption of the site and if the revisional order passed by advisor to the Administrator is read in the context of the findings recorded by the Assistant Estate Officer, we do not see any justification to nullify the directions given by the learned Single Judge.
13. We also agree with the learned Single Judge that Advisor to the Administrator had gravely erred in declining the prayer made by respondent No. 2 for extension of the time. Learned counsel for the appellant could not draw our attention to any document from which it can be inferred that order dated 13,5.1992 had been conveyed to respondent No. 2 and he had deliberately avoided to remove the violations. Therefore, there is no justification to interfere with the order of the learned Single Judge.
14. During the course of hearing, we enquired from the learned counsel for the appellant whether his client and other legal heirs of late Shri Sohan Lal are prepared to remove the violations in terms of the order passed by the Advisor to the Administrator. In reply, Shri Jain, after seeking instructions from his client and some other heirs of late Shri Sohan Lal, who are present in the Court, stated that they are not prepared to remove the violations.
15. The disinclination of the appellant and other legal heirs of the landlord to remove the violations shows that after having failed in their efforts to secure the order of eviction in the proceedings initiated under the 1949 Act, they are interested in restoration of the order of resumption so that later on they can apply for re-allotment of the site by paying 1/3rd of the market price in terms of Section 11-A of the 1952 Act and, in our considered view, the process of the Court cannot be allowed to be misused by them.
16. For the reasons mentioned above, the appeal is dismissed.
17. However, we direct respondent No. 2 to comply with the directions contained in the order of the learned Single Judge within a period of 8 weeks from today, failing which the Chandigarh Administration shall be free to take appropriate action in furtherance of the initial order of resumption.
18. Copy of the order be given dasti on payment of fee prescribed for urgent application.
Sd/- Bakhshish Kaur, J.