Punjab-Haryana High Court
Smt. Dhanwant Kaur vs Union Territory Chandigarh ... on 28 January, 1992
Equivalent citations: AIR1993P&H60, AIR 1993 PUNJAB AND HARYANA 60, (1993) 1 RRR 333, (1992) 1 RENCR 573, (1992) 2 LANDLR 84, (1992) 1 RENTLR 142, (1992) 1 RRR 333, 1992 PUNJ LJ 592, 1992 HRR 602, (1992) 2 PUN LR 318
ORDER R.S. Mongia, J.
1. The petitioner is the owner of Site No. 46(P), Sector 9A, Chandigarh, which is now numbered as House No. 64, Sector 9A, Chandigarh. The said plot was allotted in the name of the petitioner by the Respondents on 27th April, 1955, and a conveyance deed, as prescribed in Schedule 8 of the Capital of Punjab (Development and Regulation) Act, 1952 (hereinafter called the Act) and the Rules made thereunder, was also executed between the parties. The petitioner had constructed a house on the plot. Clause 9 of the Conveyance deed which was executed between the parties, is in the following terms :--
"9. The transferee shall not use the said site for a purpose other than that of residential purposes nor shall he use the building constructed on it for a purpose other than that for which it has been constructed except in accordance with the rules made under the Capital of Punjab (Development and Regulation) Act, 1952."
It has been alleged in the petition that initially the petition had rented out the ground floor of the house in question for the residence of the officers of the Haryana Government, but later on the Haryana Government started running the offices of Joint Director, Rehabilitation, Haryana and the office of the Chief Settlement Commissioner-cum-Custodian General, Haryana.
2. In view of the alleged violation of the provisions of Section 8A of the Act, the Estate Officer, Respondent No. 3, on 26thu August, 1982 passed an order of resumption of the site on ground that the house which was meant for residential purposes was being used by the Haryana Government, as an office. Reeling aggrieved by the order of resumption of the Estate Officer, the petitioner filed an appeal before Respondent No. 2 -- Chief Administrator-cum-Finance Secretary, Union Territory. Whilel disposing of the appeal on 29th May, 1984, Appellate Authortiy made the following observation:-
" ..... During the arguments her counsel assured me that the misuse will be got stopped provided some time is given to the appellant to get it removed. Keeping in view the fact that the appellant has taken steps to remove the misuse and that now she is not a party to it and is interested to get it stopped, I give her a chance to prove her bona fide intention for getting the misuse stopped. It may be specifically mentioned here that unless the ownership of the site is vested in her she cannot effectively pursue the ejectment suit filed by her against the tenant. In this background I restore the allotment of the site to the appellant on the specific condition that she should get the misuse stopped within a period of six months. In case the misuse is not stopped after the expiry of the period of six months, the order of the Estate Officer will become operative. The amount of forfeiture shall stand and should be paid by the appellant within 30 days reckonable from the date of issue of this order. Non-compliance with this order brings into operation the impugned order of the Estate Officer."
3. It is further alleged in the petition that though a very short period had been given by the Appellate Authority to get the misuser stopped, yet the petitioner left no stone unturned to get misuser stopped within the stipulated period. She filed a petition under the Rent Restriction Act for eviction of the tenant on the ground of personal necessity as well as misuser and also filed a civil suit for permanent injunction restraining the tenant (Haryana Government) from using the building as an office. The said civil suit, which was brought about in the year 1984, was dismissed by the trial Court on 11th December, 1986, mainly on the ground that the petitioner had not been able to place on record the order which showed that the building was ever resumed by the Estate Officer or that it was later on conditionally restored by the Chief Administrator, U.T. Chandigarh. The peti-tioner remained unsuccessful in the appeal before the Additional District Judge, who vide his decision dated 20th Nov. 1989 dismissed the appeal. The petitioner thereafter filed a petition under Section 13A of the Punjab Urban Rent Restriction, Act, as applicable to Union Territory, Chandigarh, that she being the wife of a retired Government official, was entitled to the possession of the house from the tenant on the ground of personal necessity. The said ejectment application was allowed by the Rent Controller on 1st Nov. 1989 and two months' time was granted to the tenant (Haryana Government) to vacate the premises in dispute. Since the tenant had not vacated the premises the petitioner took out execution and after obtaining warrants of possession, got the possession of the premises in dispute through the Bailiff on 15th January, 1990. The report of the Bailiff has been attached as Annexure P4 to this petition, which shows that the possession of the entire premises, excepting two rooms, was delivered to the petitioner on 15th January, 1990.
4. It may be observed here that against the appellate order of the Chief Administrator, dated 29th May, 1984, petitioner had filed a revision petition under S. 10(4) of the Act before Respondent No. 1 i.e., Advisor to the Administrator, Union Territory, Chandigarh, but the same was dismissed on 29th December, 1989. By that time, the petitioner had already obtained an eviction order against the tenant on 1st Nov. 1989, from the Rent Controller, Chandigarh. It has been alleged in the petition that after the petitioner received order dated 1st November, 1989, another application was moved before Respondent No. 1 for reviewing the order dated 29th December, 1989 in view of the order of the ejectment of the tenant, which had been had been placed on the record. The same was, however, returned to the petitioner on the ground that no review lay before Respondent No. 1. It may further be observed that the State of Haryana (tenant) had filed an application before the Executing Court (Rent Controller) for withdrawal of warrants of possession and the order withdrawing the warrants of possession was passed, against which the petitioner filed a revision petition in this Court, Civil Revision No. 170 of 1990, in which status quo was ordered by this Court. The State of Haryana (tenant) also filed Civil Revision No. 200 of 1990 against the ejectment order, dated 1st Nov. 1989, passed by the Rent Controller. Ultimately, the revision of the State of Haryana was withdrawn vide order dated 10th September, 1990, asacom-promise had taken place between the parties and even the possession of the remaining two rooms was also delivered to the petitioner.
5. This writ petition was filed, challenging the order of resumption, as also the appellate and revisional orders, upholding the resumption order of the Estate Officer, on the ground that since the misuser, if any, had been stopped and got removed by the petitioner, the resumption order could not be allowed to stand. According to the learned counsel, the resumption order had been passed soley on the ground that the building was being misused and since the misuser was no more there, the resumption order was liable to be quashed. The learned counsel further submitted that initially the building had been given to the Haryana Government for residential purposes and when it started using the same for the office, steps were taken to stop the misuser. It has further been argued that the time given by the Appellate Authority was too short in which the petitioner could get the misuser stopped. The petitioner had taken expeditious steps to get the misuser stopped and ultimately succeeded in the same. He also argued that even if the petitioner had initially given the house on rent for being used as an office, technically it may be a small irregularity but then the fault equally lay with the Government of Haryana to getthe house on rent for the use of an office. In support of his contention, he cited Col. Ramesh Mehta v. The Chandigarh Admistrator, 1989 PLJ 695.
6. The learned counsel on behalf of the respondent has put on record an inspection report by the Tehsildar, Enforcement, U.T. Chandigarh, in respect of the house in question, which shows that the misuser has been stopped and the building is lying vacant. The learned counsel, however, submitted that merely because the misuser has been stopped now, is no ground to set aside the resumption order.
7. After hearing the learned counsel for the parties, I am of the opinion that there is merit in the submissions of the learned counsel for the petitioner. The petitioner's case is fully covered by the judgment in Col. Ramesh Mehta's case (supra), with which I am in respectful agreement. Paras 6 and 7 of the judgment may be reproduced :--
"6. After hearing the counsel for the parties, I find that the impugned order, Annexure B8 cannot be sustained in law whereby the revision petition filed by the petitioners was dismissed in limine. The perusal of the facts narrated above shows that while restoring the site in dispute to the petitioners, a condition was imposed tha the petitioners would get the misuse stoped i.e. to get the house vacated from the Legal Remembrancer, Punjab, within a period of six months. In substance, after the house was vacated, what the petitioners wanted in the subsequent application was extension of the time for getting the misuse stopped. As a matter of fact such a condition could not be imposed in order Annexure P2 as stopping of misuse was not under the control of the petitioner.
"7. If the case is considered in the background that Chandigarh Capital was developed while Punjab was joint and it was after reorganisation that the entire Capital Project came under the administration of Union Territory. Even in the administration of Union Territory 60 per cent of the expenditure is met by the Punjab. If there was scarcity of accommodation for the offices of the Punjab Government in Chandigarh and they had taken private house on rent obviously, before re-organisation, the Punjab Government or the authorities under the Act were not expected to resume the site as in that case, fault equally lay with the Punjab Government to get the house on rent for use as office. The owner of the house in such circumstances could not be punished. Even after re-organisation, the only change is that the Admini-strataion of Chandigarh is now under the Union Territory. Broadly speaking the fight of the petitioners is against the Government, may be Punjab Government or the Union Territory Administration. The Union Territory Administration has acquired under the re-organisation Act all assets and liabilities as far as Capital Project is concerned and in that sense has stepped into the shoes of the Punjab Government. If the Government had taken the house on rent for being used as an office technically it may be an irregularity. However, justice does not require that the owner of the house should be made to suffer on that account.
8. A Full Bench of this Court in Shri Ram Puri v. The Chief Commissioner, Chandigarh, 1982 PLR 388 : (AIR 1982 P & H 301), while dealing with the matter of resumption of sites/houses situated in Chandigarh, observed as under at page 331 :--
"Power of resumption under Section 8A is merely a discretionary and an enabling power. The statute does not lay down any mandate that it must necessarily be exercised in a particular situation. In sub-section (1) thereof it is first in the discretion of the Estate Officer that he may issue a notice to show cause why an order of resumption of site or building may not be made Equally under subsection (2) after considering the cause shown against such a notice it is optional for the Estate Officer to order such resumption or not. The word used in both the sub-sections is 'may' and not 'shall'. To put it in plain language it is not mandatory for the authority to order resumption but only in extreme cases it enables it to do so when the other powers and sanctions to enforce the purpose of the act have failed, or in the circumstances it is the only remedial power which can be applied. Therefore, it is farcical and imaginary to assume that the authority would necessarily use this power arbitrarily and whimsically and that they will use this hammer to swat a fly."
9. Applying the above ratio, I am of the, view that the petitioner had taken immediate steps to get the misuser, if any, stopped, and, ultimately, succeeded in the same. The Government of Haryana being a tenant, really should have vacated the premises immediately when a case had been filed against it for misuser, as the petitioner was at the peril of losing the site/house because of the resumption order. Since by the efforts of the petitioner, the misuser has been stopped, the ground for resumption does not exist any more and the resumption order is liable to be set aside.
10. For the foregoing reasons, this writ petition is allowed and the order of resumption, dated 26th August, 1982 (Annexure P1), the order of the Appellate Authority dated 29th May, 1984 (Annexure P2), and of the Revisional Authority, dated 29th December, 1989 (Annexure P5) are hereby quashed. I make no order as to costs.
11. Petition allowed.