Punjab-Haryana High Court
Chandi Ram Nagpal vs Ut Of Chandigarh Through Advisor To The ... on 17 November, 2014
Author: Hari Pal Verma
Bench: Hemant Gupta, Hari Pal Verma
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
C.W.P. No.4156 of 1998 (O&M)
Date of decision: 17.11.2014
Chandi Ram Nagpal
-----Petitioner
v.
Union Territory, Chandigarh & others
-----Respondents
CORAM:- HON'BLE MR. JUSTICE HEMANT GUPTA
HON'BLE MR. JUSTICE HARI PAL VERMA
1. Whether reporters of local newspapers may be allowed to
see judgment?
2. To be referred to reporters or not?
3. Whether the judgment should be reported in the Digest?
Present:- Ms. Monika Thakur, Advocate
for the petitioner.
Mr. Samir Sachdeva, Advocate
for respondents.
---
HARI PAL VERMA, J.
By way of instant writ petition, the petitioner has challenged the order of cancellation of lease of SCO Site No.271, Sector 35-D, Chandigarh dated 6.8.1990 passed by Assistant Estate Officer exercising the powers of the Estate Officer, Chandigarh and order dated 7.3.1995 passed, in appeal, by Chief Administrator, Chandigarh, whereby while restoring the site to the owner, forfeiture of 5% of the total premium has been directed to be paid by the petitioner. The petitioner has further challenged the order dated 8.3.1998 passed by the Advisor to the ASHWANI KUMAR 2014.11.21 14:20 I attest to the accuracy and integrity of this document High Court Chandigarh C.W.P. No.4156 of 1998 2 Administrator, UT, Chandigarh, whereby the revision petition, filed by the petitioner against the order of resumption for failing to comply with the Chief Administrator's order, has been dismissed.
Brief facts as narrated in the writ petition are that the petitioner purchased SCO Site No.271, Sector 35-D, Chandigarh on lease hold basis. After making payment of 25% of the premium of the site, the lease was confirmed in favour of the petitioner vide allotment letter dated 30.9.1974. The petitioner paid the up-to- date premium including the ground rent and interest and has constructed the building on the site. The site was allotted for general trade. The petitioner is stated to be running a cloth business on the ground floor, whereas back portion, first and second floor were rented out. It is stated that the occupier of the back portion is running the business of Auto Spare Parts in the name and style of M/s Joga Auto Repair Centre and the back portion of the SCO has a big shutter opening on the back road and thereafter, there is an open land of the Chandigarh Administration between the road and the boundary wall of the school. A number of auto repairers are running the business of auto repair on the Government land. However, the Estate Officer issued a show cause notice to the petitioner regarding the use of said portion of the building for running auto repair centre under Rule 20 of the Chandigarh Lease Hold of Sites and Building Rules, 1973 (for short, "the 1973 Rules") and vide order dated ASHWANI KUMAR 2014.11.21 14:20 I attest to the accuracy and integrity of this document High Court Chandigarh C.W.P. No.4156 of 1998 3 5.10.1990, cancelled the lease of the Site No.271, Sector 35-D, Chandigarh. Against the aforesaid order dated 5.10.1990, the petitioner as well as the tenant Joga Singh filed an appeal under Section 10 of the Capital of Punjab (Development & Regulation) Act, 1952 and Rule 22 of the 1973 Rules, whereupon, vide order dated 7.3.1995 on the undertaking of counsel for the appellant to remove misuse by 31.5.1995, the order dated 5.8.1990 was set aside and the site was restored to the owner subject to the conditions to remove misuse by 31.5.1995. The forfeiture of the premium was worked out to Rs.2600/- to be paid by the petitioner by 10.4.1995, failing which, the order dated 5.8.1990 passed by the Estate Officer shall become operative.
Pursuant to order dated 7.3.1995 passed by the Chief Administrator, Chandigarh Administration, petitioner prepared pay order of Rs.2600/- and submitted the same to the Estate Officer. However, the same was returned by the Estate Officer, requiring the same to be returned after revalidation, along with copy of the restoration order passed by the Chief Administrator. The petitioner submitted the revalidated demand draft vide letter dated 26.11.1997. However, the demand draft, as submitted by the petitioner, was returned by the Estate Officer, respondent no.3, vide letter dated 4.11.1997(Annexure P-6) on the ground that the petitioner has failed to comply with the order of the Chief Administrator. In response to the aforesaid letter dated ASHWANI KUMAR 2014.11.21 14:20 I attest to the accuracy and integrity of this document High Court Chandigarh C.W.P. No.4156 of 1998 4 4.11.1997, the petitioner submitted compliance of the order of the Chief Administrator on 2.12.1997. Subsequently, the petitioner filed a revision petition under Section 10 of the Capital of Punjab (Development & Regulation) Act, 1952 and Rule 22 of the 1973 Rules against memo. dated 4.11.1997, whereby the demand draft of Rs.2600/- was returned to him on the ground that he has failed to comply with the Chief Administrator's order. The petitioner also challenged the order dated 7.3.1995 passed by the Chief Administrator. While the revision petition was pending before the Advisor to the Administrator, the site was ordered to be inspected in the presence of the petitioner. On the date and time when the site was inspected, it was found that the repair work was being carried out by Shri Joga Singh, tenant, in the back portion of the shop. Again, an inspection was carried out on 18.2.1998 at about 5-00 pm and at the time of inspection, it was noticed that the tenant was repairing the vehicles in front of the Government land adjoining the school boundary wall. Ultimately, the revision petition was dismissed vide order dated 8.3.1998.
It is against the order dated 8.3.1998, the petitioner has filed the present writ petition challenging various orders.
Vide order dated 27.10.1998, this Court had admitted the writ petition and dispossession of the petitioner was stayed. The respondents have not opted to file any reply and in this ASHWANI KUMAR 2014.11.21 14:20 I attest to the accuracy and integrity of this document High Court Chandigarh C.W.P. No.4156 of 1998 5 manner, the pleadings put forward by the petitioner have not been controverted.
We have heard learned counsel for the parties and perused the impugned orders.
Along with the writ petition, the petitioner has filed an affidavit dated 25.3.1998 which clearly shows that the petitioner has rented out the back portion of the ground floor of the SCO No.271, Sector 35-D, Chandigarh measuring 6'x16½' to Joga Singh son of Harbhajan Singh and that the portion can only be used for general trade. The affidavit further says that with the passage of time, the business of auto spare parts has increased and the occupier as well as the deponent agreed before the Lok Adalat to stop the misuse and thereafter, only spare parts are being sold from the tenanted premises.
Since the misuse of the site in question has been stopped and at present, the auto spare parts shop and not of repairers, is running on the back portion of the site, cancellation of lease is not legally sustainable. Further, as observed by the revisional authority in para 4 of its order dated 8.3.1998, the site in question was again inspected on 25.2.1998 in the presence of the petitioner's son and Joga Singh, the tenant, and at that time, it was found that the said repair shop had been converted into the spare parts shop, in which, limited number of spare parts were ASHWANI KUMAR 2014.11.21 14:20 I attest to the accuracy and integrity of this document High Court Chandigarh C.W.P. No.4156 of 1998 6 stored. Thus, the premises in question are being used for permissible use and not for any prohibited purpose.
We may make a reference to a judgment of Hon'ble Supreme Court in the case of Teri Oat Estates (P) Ltd. Vs. U.T. Chandigarh & others (2004) 2 SCC 130, wherein it has been held that resumption or a cancellation of lease should be resorted to as a last resort. Thus, cancellation of lease is not warranted, particularly when misuse is stopped and the auto repair work has not been undertaken by the tenant any more.
Thus, in view of the fact that the petitioner has submitted a categoric affidavit, which has not been controverted by the respondents and that the misuse has since been stopped, we allow the writ petition and set aside the order of cancellation of the lease. The petitioner shall pay all the instalments or penal interest, if any. We, however, make it clear that in case the petitioner misuses the site or violates the terms and conditions of the allotment in future, the administration would be at liberty to resort to action against the petitioner as permissible under law.
The writ petition is allowed, accordingly.
( HEMANT GUPTA ) ( HARI PAL VERMA )
JUDGE JUDGE
November 17, 2014
ak
ASHWANI KUMAR
2014.11.21 14:20
I attest to the accuracy and
integrity of this document
High Court Chandigarh