Punjab-Haryana High Court
Ashwani Kumar vs Chandigarh Administration Thr. Its ... on 20 February, 1992
Equivalent citations: AIR1992P&H274, AIR 1992 PUNJAB AND HARYANA 274, 1994 HRR 157
ORDER
1. Petitioner with a view to save his lease-hold rights that he has in the site in question, known as sites Nos. 56-57, located in Sector 15-D, Chandigarh, is in continuous litigation from last about sixteen years. By way of present writ petition, he has challenged the orders (Annexures P-l to P-3) vide which, the Estate Officer, Chandigarh, on October 23, 1989 (Annexure P-l) while exercising his powers under Section 8-A of the Capital of Punjab (Development and Regulation) Act, 1952, as amended by Chandigarh Amendment Act No. 17 of 1973, resumed the sites in question and forfeited 10% of the price of the plot. The aforesaid order was passed against the transferee, i.e. Smt. Joginder Kaur, from whom, admittedly, the petitioner had taken the site aforesaid on lease. This order was challenged by the lessee i.e. the petitioner of this case, in appeal, but the Chief Administrator vide his order dated April 9, 1990, (Annexure P-2) dismissed the same. It is pertinent to mention here that the transferee also challenged the same order in a separate appeal, which was dismissed on April 9, 1990, and while dealing with the appeal of the petitioner all that was observed by the Chief Administrator was that the appellate order passed in the case of Smt. Joginder Kaur, the transferee, mutatis mutandis shall apply in this appeal as well, The revision filed against the order of the Chief Administrator also did not find favour with the Advisor to the Administrator and the same too was dismissed vide order dated August 16, 1991, (Annexure P-3). The history of the proceedings against the transferee as also the petitioner for resumption of the site started way back in 1976, when vide order dated September 4, 1976, passed by the Estate Officer, the site in question was resumed on the allegation that the premises in question was used as a Karyana shop and that according to the allotment letter, it was to be used for running a flour mill (Atta Chakki). The appeal against the aforesaid order preferred by the petitioner was dismissed by the Chief Administrator on December 28, 1976. The order passed by the Chief Administrator was confirmed by the Chief Commissioner on March 17, 1978. However, on a writ preferred by the petitioner in this Court, the case was remanded to the Chief Administrator vide order dated January 7, 1981, and on remand the Chief Administrator restored the site in question in favour of Smt. Joginder Kaur vide order dated August 12, 1981, subject to the condition that the same will not be misused and the amount forfeited shall be paid by the tenant. The administration, in view of the operative part of the order passed by the Chief Administrator on August 12, 1981, while considering repetition by the lessee of misuser of the building, i.e. using for a purpose other than for which the same was allotted, revived although, afresh proceedings for resumption culminating in orders (Annexures P-l to P-3) in the manner and result, which has been indicated above. The result of previous and present resumption proceedings having been noticed, it is time now to assess the facts culminating in orders so passed as also the case of the orders presently operative have been assailed.
2. The petitioner pleads that he is running a flour mill (Atta Chakki) in the premises in question for the last about 30 years. The site bearing Nos. 56-57, Sector 15-D, Chandigarh, was allotted by the Chandigarh Administrator to Smt. Joginder Kaur wife of Col. Gurcharan Singh and besides running of Atta Chakki, the petitioner also sells Karyana articles in the premises in question, which according to him is clearly a use ancillary to the main use. The resumption proceedings for the first time were initiated by the Estate Officer, Chandigarh, culminating in the order of resumption dated September 4, 1976, and the sole basis for passing the said order was that the transferee had permitted the use of the premises other than Atta Chakki, i.e. Karyana shop. The case of the Administration, as would be clearly made out from order (Annexure R-4/ 2) was that the transferee, i.e. Smt. Joginder Kaur, had permitted the use of the premises and obviously this use was permitted to the petitioner for a purpose other than flour mill, i.e. Karyana shop. It was not the case of the Administration that either Smt. Joginder Kaur had so permitted or the petitioner-lessee of his own had continued to do the business of flour mill and only in part of the premises a karyana shop had been set up. However, as referred to above the appeal preferred by the petitioner was dismissed by the Administrator to Union Territory, Chandigarh, vide order dated December 28, 1976. The petitioner thereafter filed a revision petition before the Chief Commissioner, which was dismissed on the sole ground that the petitioner had no locus standi to file the revision petition. The matter was then taken to the High Court in writ petition, where the orders of the Estate Officer dated November 20, 1976 and November 27, 1976, and one passed by the Administrator dated December 28, 1976 as also the order passed by the Appellate Authority dated May 26, 1977, were set aside and the appeal was remanded to be decided by the Chief Administrator for deciding the case on merits. When the matter came before the Chief Administrator on remand by the High Court, a report from the Estate Officer was called for and according to the said report, which was submitted by the Estate Officer there was no misuse of the premises and the same was being used for the purpose of running a flour mill only. However, the Chief Administrator observed as follows:--
"The misuse may not be there now, but it was continuing previously and that was the ground which led to the passing of the resumption order by the Estate Officer. Had there been no misuse of the said premises, the site would have not been resumed".
After so observing, the Chief Administrator went on to record as to who was responsible for the earlier misuse of the premises and came to the conclusion that the misuse was without the consent or connivance of the transferee. The operative part of the aforesaid order reads thus:--
"I, therefore, order that the amount of forfeiture shall be paid by them. The restoration of the site is, however, subject to the condition that the premises are not put to misuse again. This should be ensured by the transferee as well as by the appellants. The Estate Officer is also directed to get the premises inspected periodically with a view to find out whether or not these are being used for the trade for which the site was sold. In case, it is found that the premises are being misused again, both the Estate Officer and the transferee shall take appropriate legal action against the tenants. The amount of forfeiture should be paid by 10th September, 1981."
3. For non-payment of the forfeiture amount, the Administrator, Union Territory, Chandigarh, vide order dated August 8, 1988 (Annexure R-4/4) dismissed the revision of the petitioner even though no misuser was found at least when inspection was carried out by the Estate Officer and payment of 10% of sale consideration was not made condition precedent for restoring the site vide orders dated 26th September, 1981, as reproduced earlier. The petitioner carried a Civil Writ Petition, which was decided on January 19, 1991, and the case was again remanded and the amount of forfeiture was paid within a month. There was hardly any breathing space for the petitioner, and immediately on the heels conclusion of the earlier proceedings, yet another order dated October 23, 1989 (Annexure P-l) came to be passed by the Estate Officer vide which once again for the same misuse, the site in question was resumed. Once again the allegation against the petitioner was that the premises is being used for Karyana shop instead of flour mill purpose, which according to the order aforesaid, contravened the provisions of sale. It requires to be mentioned here that in the proceedings resulting into order (Annexure P-1) only one Harjinder Singh son of the allottee appeared, whereas no one appeared on behalf of the petitioner. As referred to above, the petitioner carried in appeal against the order aforesaid and even though the matter was heard on March 6, 1990, no order was communicated to him for over a year. As per case of the petitioner in the meantime transferee Smt. Joginder Kaur, who exerts a lot of influence in the corridors of power got proceedings initiated against the petitioner under the Public Premises (Eviction of Unauthorised Occupation) Act, 1971. This action has been separately challenged by the petitioner by way of Civil Writ Petition No. 8416 of 1991, which after notice is stated to be pending, wherein interim stay of dispossession was also granted to the petitioner. During the pendency of the petition aforesaid, the petitioner pleads, that he was communicated (by) order dated April 9, 1990, passed by the Chief Administrator, vide which his appeal was dismissed. His revision was also dismissed vide order (Annexure P-3). as indicated above.
4. The petitioner takes strong exception to the orders (Annexures P-l to P-3) and styles them to be illegal, arbitrary, mala fide and ultra vires to the provisions of the Act of 1952 and Articles 14 and 19(1)(g) of the Constitution of India. The first point raised by him is that the premises in question was allotted for the purpose of running a flour mill and the petitioner is continuing the business of flour mill for the last about 30 years and the mere fact that a very small portion of the premises in question is being utilized by the petitioner for sale of Karyana articles, i.e. pulses, wheat, atta, spices etc; which articles are ancillary to the main use and, therefore, from no point of view the petitioner can be said to be misusing the premises in question. The second point raised by him is that matter with regard to permission of change of user was under active consideration of the Chandigarh Administration, particularly with regard to the sites located in Sector 15-D, Chandigarh. All those premises, which were earmarked or allotted for semi-industrial purposes were permitted to be used for general trades from the last many years. The matter with regard to the change of user was specifically raised by a joint representation of traders in Sector 15-D and the matter came before the Advisor to the Administrator and a conscious decision was taken while considering ail aspects of the matter, whereby change of user was permitted. This was so done vide order dated January 9, 1991. Copy of this order has been placed on record as AnnexureP-4. The operative part of the order aforesaid reads thus:--
"As already explained earlier the ground reality in this as also other similar cases is that the owners/occupiers of the buildings are using these bay shops for general trade for the last several years and I feel it will really be in the public interest to allow the change of trade because as rightly held by my predecessor also in his interim order dated 24th April, 1985, the inhabitants of Sector 15 for their day-to day needs require every type of shop close to their residences on the pattern existing in other sectors in Chandigarh. I accordingly allow conversion of the site on payment of charges to be calculated by the Estate Officer within 10 days from the date of communication of the order. The allottees shall deposit 50% of the conversion charges within one month from the date of receipt of the communication from the Estate Officer and the remaining into two quarterly instalments; failing which the order of the Estate Officer shall come into operation.
This order shall dispose of revision petition No. 84 of 1981 in respect of site No. 45, Sector 15-D, Chandigarh, Sodagar Mal v. Estate Officer. No. 93 of 1981 in respect of site No. 51, Sector 15-D, M/s. Chand Traders v. Estate Officer, no. 79 of 1981 in respect of site No. 50, Sector 15-D, Smt. Nirmal Gulati v. Estate Officer, No. 78 of 1981 in respect of site No. 45, Sector 15-D, Shri Krishan Lal & Shri Phool Chand v. Estate Officer and No. 80 of 1981 in respect of site No. 37, Sector 15-D, S/Shri Laxman Dass and Chander Bhan v. Estate Officer. The remaining owners of other bay shops in Sector 15-D are also accordingly permitted to apply for change of trade to the Estate Officer, who will allow the same in accordance with the above order. This decision has been taken keeping in view the situation existing in Sector 15-D, and this will not therefore serve as a precedent in respect of any other sector in Chandigarh."
5. The order aforesaid would, thus, depict that the allottees were asked to deposit 50% of the conversion charges within one month of the communication received from the estate Officer. The last point that is pressed into service by the petitioner is that there was no justification for the respondent-administration to resume the site in question as the said proceedings cannot be resorted to in the first instance and that such penal action that divests a citizen of his property has necessarily to be taken as a last step and that too when the infringement of rules is so glaring that no order, but for resumption, will be the only justifiable action.
6. This petition has been opposed both by the Chandigarh Administration as also the allottee, i.e. respondent No. 4. Whereas the opposite of the Administration is understandable, the stiff and far more vehemence with which the matter has been argued by the learned counsel appearing for the transferee, has rather amazed this Court. It is an admitted position between the parties that on account of majority decision rendered by a Full Bench of this Court in Ram Puri v. Chief Commissioner, Chandigarh, AIR 1982 P& H 301, the resumption is not temporary and it is not the lessee if he is at fault that he would forfeit his tenancy, but the owner/transferee too would lose his right of ownership. That being so, the irresistible conclusion that can be drawn from the resistance to the cause of the petitioner by respondent No. 4 is that efforts are being made at her ends as well to obtain possession of the premises from the petitioner on such grounds that may not be available to her under the ordinary law, i.e. East Punjab Rent Restriction Act, wherein only specified grounds can entail eviction. It is well settled proposition of law that change of user if not objected to by the landlord for years and years even though the same be not by the tacit consent of the landlord, would come in the way of the landlord in securing eviction on the ground of acquiescence. It is perhaps for this reason that the landlord wants forfeiture of tenancy of the petitioner and then in a separate revision filed by her against the very impugned orders to obtain or at least endeavour to obtain favourable orders. However, without at all taking into consideration this aspect of the case, let us examine the defence put up by the Chandigarh Administration as also respondent No. 4 and independently of anything else and purely on merits of the controversy as is involved in the present case, let us see whether the petitioner has a strong case for quashing of orders (Annexures P-l to P-3). In the written statement filed by the Estte Officer for himself and on behalf of respondents Nos. 1 and 2, it has been pleaded that the petitioner is running a Karyana shop in the premises in question besides the atta Chakki. The sale of Karyana articles is pleaded to be against the provisions of Act of 1952 as also against the terms and conditions of the allotment letter and against the deed of conveyance. Site No. 56-57, Sector 15-D, was sold for running a flour mill and not for selling of Karyana articles. The Karyana articles sold by the petitioner are stated not to be the produce from wheat/ maize and, therefore, it is pleaded that the purpose for which the premises has been partly used is not the purpose, which may be ancillary to the main purpose, i.e. flour mill. The resumption proceedings are stated to have been initiated for violation of the provisions of law and activating the said proceedings at the instance of respondent No. 4, i.e. the transferee, has been denied. The petitioner is stated to be habitual and regular defaulter and law breaker and for showing the same, earlier proceedings, reference to which has been given above, have been pressed into service. In so far as the case of the petitioner that other shopkeepers in the same very sector have been permitted to change the trade is concerned, the reply of the Administration is that the present site was allotted for a specific trade, i.e. flour mill, and change of user to a general trade in such a site was impermissible. Although, no specific reply has been given with regard to the assertion of the petitioner that the other traders in Sector 15-D have been allowed change of user, all that can be implied from reply of respondents 1 to 3 and which has also been even argued at the time of hearing of the case is that such a change of user was permitted to only those, who were allotted sites for semi-industrial purpose, and there was no question of allowing change of user to a person, who was allotted a site for a specific trade. Before, the stand of respondent No. 4 is noticed, it requires to be pertinently mentioned here that the assertion of the petitioner that he has not left the business of flour mil! and it is only in a small portion of the permises that he is selling the Karyana articles has not been denied, although, as referred to above, the resumption proceedings were initiated against the transferee and the petitioner on the ground that a Karyana shop had been opened instead of a flour mill for which purpose alone the site in question was allotted. Further, the specific averment of the petitioner, contained in paragraph 7 of the petition, that in the conveyance deed the only purpose specified was 'semi industrial' whereas in this market all the premises/sites are being used for general trade for the last many years, has not been specifically denied in the corresponding paragraph of the written statement. Paragraph No.7 of the petition reads as under:--
"7. That even otherwise also the matter was under active consideration of the Chandigarh Administration to allow the change of trade in respect of the sites in Sector 15-D, Chandigarh. Since in the conveyance deed the only purpoe specified was semi-industrial whereas in this market all the premises/sites are being used for general trade for the last many years. This fact would be clear from the order dated 9-1-1991 passed by Sh. Baleshwar Rai, Advisor to the Administrator and a copy of the same is being annexed with this writ petition as Annexure P-4 for the kind perusal of this Hon'ble Court."
Paragraph No.7 of the written statement reads as under: --
"In reply to para 7 of the petition, it is stated that the site No. 56-57, Sector 15-D, Chandigarh, was sold for the specific trade of Atta Chakki and to allow the same for the use of general trade does not arise. The site in dispute has been sold for specific trade of Atta Chakki and therefore cannot be allowed change of user. The contention of the petitioner for the change of the trade for Chakki site to general trade is basically wrong and hence denied."
7. Respondent No. 4 by way of preliminary objections pleads that the writ is required to be dismissed on the short ground that the petitioner has not approached this Court with clean hands and has suppressed the material facts in the petition. While giving the facts of the case, history of the earlier litigation has been given in sufficient details. The orders passed in the earlier litigation have also been placed on record by respondent No. 4. In so far as merits of the case are concerned, the case of respondent No. 4 is that the petitioner is running a Karyana shop in the premises in question besides a flour mill and that the Karyana articles are being sold against the provisions of the Act of 1952 and allotment letter as well as against the deed of conveyance. Karyana business is denied to be a business ancillary to the business of flour mill. Although at number of places, the purpose for which the site was allotted, as mentioned both in the allotment letter and the conveyance deed has been stated to be flour mill but while replying specific assertion of the petitioner in para 7 that the conveyance deed contained the purpose 'semi-industrial', no specific reply is again forthcoming. Para No. 7 of the written statement filed by respondent No. 4 runs thus:-
"7. That para 7 of the writ petition is wrong and hence denied. The purpose stated in the allotment letter pertaining to the site in dispute for which the same can be used is Atta Chakki and not semi-industrial, as alleged by the petitioner. The order, Annexure P-4, does not pertain to a single site allotted for running an Atta Chakki, in the whole of Sector 15-D, there is only one site allotted for running a Atta Chakki. Thus, no change of use can be permitted without prejudicially affecting the public at large."
8. Mr. Jagan Nath Kaushal, Senior Advocate, appearing for the petitioner contends that the entire base for proceeding against the petitioner so as to resume the site in dispute is misconceived. The proceedings came into being with specific allegation that the petitioner instead of flour mill, which alone was to be run on the site in question as per letter of allotment and conveyance deed, had converted the site into a shop for selling Karyana articles, whereas it is admitted before this Court both in pleadings as well as at the time of hearing that it is only in a part of the premises that the Karyana articles are being sold whereas in the remaining portion of the premises now as also at all given times earlier, flour mill was running. A Civil Miscellaneous was filed during the course of arguments by virtue of which an affidavit was permitted to be placed on record, wherein the petitioner had sworn in that it is only in 10% of the premises that Karyana articles are being sold, whereas in 90% of the premises, flour mill was always running. Reply to that Civil Misc. has been filed, whereby the contents of the affidavit were admitted with the only discordant feature that only in 1/10th portion of the front portion Karyana articles were being sold whereas in rear 90% portion the flour mill was being run. That being the position, the learned counsel for the petitioner contends that the Chandigarh Administration proceeded to resume the site on a ground, which was non-existent. It was one thing to say that the flour mill has been uprooted and altogether a new business has been started, then to say that it is only in a portion of the site in question that some other business was being carried out besides always carrying on the business, for which the site was allotted. He further contends that in the conveyance deed the purpose for which alone the site could be used was stated to be 'semi-industrial' and when almost all the shopkeepers in Sector 15-D, where the premises in question are also located, were permitted change of user, no different yard-stick could be applied to the petitioner. It would be discriminatory to single out the petitioner by such a harsh action for resumption and to permit the change of user to all other equally situate citizens. He also contends that in any case the ultimate sanction under the law, i.e. resumption forfeiture could be resorted to in case where the default was not only persistent, but also of high magnitude and for a small insignificant lapse on part of the petitioner resumption proceedings could not straightway be initiated.
9. The learned counsel appearing for the Chandigarh Administration as also the transferee, however, have joined serious issues with the counsel for the petitioner. The contention raised by them is that even if the resumption proceedings were initiated on the assumption that in whole of the premises Karyana articles are being sold and the business for which the site was allotted was not being carried out at all it would not make any difference for the reasons that at least in part of the premises misuser has been admitted. That alone would have been sufficient under the provisions of the Act of 1952 to entail an order of resumption contend the learned counsel for the respondents. On the question of purpose of allotment, mentioned in the conveyance deed, irrespective of the pleadings, as have been reproduced above, the contention is that in the conveyance deed as well the purpose for which the site could be used has been mentioned to be flour mill. At this stage, It requires to be mentioned that the conveyance deed has not been brought on record of the case by either of the parties. Such a document could be available only with athe transferee or the Chandigarh Administration. At the conclusion of arguments, when the judgment was reserved, it was specifically told to the counsel for the Chandigarh Administration as also for the transferee to produce the conveyance deed even by 10th February, 1992. The judgment in this case was reserved on 5th February, 1992. The learned counsel for the transferee appeared in the Court today and only wanted to file an application so as to say that the conveyance deed had so far not been issued by the Chandigarh Administration. Inasmuch as the direction was issued to produce the conveyance deed, the application, which was sought to be handed over in the Court itself was not entertained. In reply to the argument advanced by the learned counsel for the petitioner that a drastic action like resumption could be only the last resort, reply of the learned counsel for the respondents is that in the present case the default at the ends of the petitioner was persistent and even though it was only in 1 / 10th portion that the premises were used for a purpose other than for which the same were allotted, it would attract the provisions of the Act of 1952 as also that the considerations that prevail while deciding the question of change of user under the Rent Act and that of 1952 are entirely different. The counsel for the transferee also contends that the petition deserves to be dismissed on the ground that the petitioner did not disclose the facts with regard to earlier litigation, by which act of his he has disentitled himself from getting any discretionary relief under the writ jurisdiction of this Court as also that the factum of misuser having been impliedly admitted in the earlier proceedings, the question -- whether selling of Karyana articles in part of the building would amount to misuser or not, could not be gone into these proceedings.
10. I have heard the learned counsel for the parties at considerable length and after perusing the record of the case, I am of the considered view that there is considerable force in the points raised by the learned counsel for the petitioner and, therefore, this petition must succeed. The Administration at no given time, either when for the first time the resumption proceedings were initiated or even now at the second time when the same action is in the offing, had applied its mind on facts that were available. It has been proved to the hilt inclusive of the admissions made by the respondents that at no given time the purpose for which the premises in question were allotted to the transferee was abandoned and yet the Administration proceeded against the petitioner on the assumption that he had all together changed the business from flour mill to that of a Karyana shop. It is true that whereas the learned counsel for the petitioner in alternative has argued that even if the facts that are available before this Court, the same would have been available before the authorities even then the order of resumption could not be passed whereas the learned counsel for the respondents on the facts that are available before this Court have argued that the result would have not been different, but I am more inclined to accept the first contention of the learned counsel for the petitioner that the impugned orders deserve to be set aside on the ground that the authorities proceeded in the case on assumption of some facts, which were not at all true. In the circumstances aforesaid, it only requires to be mentioned that the learned counsel for the petitioner on the basis of Ram Puri v. Chief Commissioner, Chandigarh, AIR 1982 Punj & Har 301, as also a judgment of the Supreme Court in Mohan Lal v. Jai Bhagwan," AIR 1988 SC 1034, as also a decision of Full Bench of this Court in M/s. Ram Gopal Banarsi Dass v. Satish Kumar, 1985 PLJ 591 : (AIR 1986 P & H 52 (FB)), contends that when the main purpose for which the site has been allotted is not changed and in fact the business for which it is allotted is still carried on and only in a small portion some other business is being carried out, it will not amount to change of user and also that on account of selling some Karyana articles in only 1 / 10th portion of the building, the ultimate sanction of the law i.e. resumption could not be ordered, whereas the learned counsel for the respondents have argued that the matters that are required to be considered for holding change of user under the Act of 1952 are altogether different than the consideration that prevail for holding change of user under the Rent Restriction Act as also that even if a portion of the premises used for the purposes other than for which the same was allotted, the same would attract the provisions of resumption and forfeiture. For this proposition, reliance has been placed upon a judgment recorded in Civil Writ Petition No. 8389 of 1988 decided by a Division Bench of this Court on January 25, 1990- As referred to above, I am not inclined to go into this question. For the reason that such matters ought to have been agitated before the authorities on representation of correct facts before them and inasmuch as the authorities decided the case on assumption of the facts, which were not correct, it would not be appropriate to consider the matter on altogether different grounds. Having come to the conclusion that the matter requires reconsideration by the authorities on representation of correct facts normally the matter would have been remitted for re-determination of the question, but inasmuch as I am inclined to allow this petition on the second point raised by the learned counsel for the petitioner, no useful purpose will be served in remitting the case to the authorities, Also, it will not be appropriate to thrust a third round of litigation upon the petitioner, when the necessary relief can be granted to him on the second point raised in this case.
11. The petitioner brought on record the order passed by none other than the Advisor to the Administrator, Union Territory Chandigarh who while exercising the powers of the State under the Act of 1952 when dealing with the case of many others permitted conversion of use and permitted the premises to be used for purpose other than the one mentioned in the allotment letters. In the order, which has been placed on record (Annexure P-4), it has been mentioned that the matter was earlier considered by the predecessor of the Administrator in 1985, who was apprised of the fact that all shops in Sector 15-D are meant for 'semi industrial' purpose and after inspection of the site, the Administrator decided the case by allowing the request for change of trade. It was further observed in the aforesaid order that the ground in reality was that the owners/occupiers of the buildings were using the sites for general trade for the last several years and it would be in public interest to allow the change of trade for inhabitants of Sector 15 for their day to day needs require every type of shop close to their residences on the pattern existing in other sectors in Chandigarh. The conversion of sites on payment of the charges to be calculated by the Estate Officer was permitted. A different yard-stick is in the offing for the petitioner on the only distinguishing feature, as is sought to be made out by the respondents, that whereas with regard to all other shops in Sector 15-D, the purpose for which it could be used was mentioned in the allotment letter to be 'semi-industrial' in the case of the petitioner, it was clearly meant to be used for one purpose alone, i.e. flour mill (Atta Chakki). As referred to above, it is only the allotment letter, which has been produced on the record of the case and the conveyance deed even after demanding the same by the Court has not been produced on the ground that the same has not so far been issued. If the conveyance deed has not so far been issued, it is really strange to note that as to how all those, who dealt with this matter, came to the conclusion that the allotment letter and the conveyance deed did depict the purpose, i.e. flour mill, for which the site in question was allotted. In the facts and circumstances of this case, it is, thus, to be concluded that either the conveyance-deed, if issued, mentions the words 'semi industrial' as has been mentioned with regard to practically all the sites in Sector 15-D and if the same has not been issued then grave injustice has been caused to the petitioner and the authorities while holding against the petitioner did not even see the conveyance deed and passed the orders in mechanical manner. The petitioner has been discriminated. Being equally situate as the other owners/ occupiers of Sector 15-D, he did not deserve the kind of treatment that has been meted out to him. Change of user to others from 'semi industrial' to general trade and forfeiture and resumption for the petitioner, who has only converted 1/10th of the building to the use other than for which the premises were allotted, amounts to discrimination. It may be mentioned here that the learned counsel appearing for the official respondents concedes that in case the conveyance deed mentions the words 'semi industrial' then in that case the petitioner should also be permitted the change of user and non-permission for the change of user would be discriminatory, but as referred to above, the conveyance deed has not been placed on record even on asking of the Court and all that it stated is that the same has not so far been issued. This discrimination cannot be permitted and action of the respondents in resuming the site is violative of Article 14 of the Constitution of India.
12. I find no substance in the contention of the learned counsel for the respondents that the petitioner has suppressed material facts and, therefore, not entitled to a discretionary relief under writ jurisdiction of this Court. While taking the aforesaid objection, it appears that the respondents were totally oblivious to the impugned orders that have been admittedly attached with the writ petition and which contain all the facts, inclusive of previous litigation.
13. The contention of the learned counsel for the respondents and more particularly of the counsel for the transferee that the petitioner is debarred from agitating the change of user on account of his implied admissions made in the earlier proceedings, is also devoid of merit on variety of reasons. While passing an order of forfeiture, it was clearly observed in the order that there was no misuser of the building and that the premises were being used for running a flour mill only. It is only on conjectures and surmises that it was observed that earlier there must have been misuser and, therefore, the proceedings for resumption were started against the petitioner and the transferee. On account of non-payment of forfeiture amount, the proceedings were revived and the site was resumed which order, as referred to above, was set aside by the High Court and forfeiture amount was paid by the petitioner. That fact alone to my mind would not amount to an implied admission of misuser of the building in question. Besides it shall be seen that the order Annexure P-4 vide which a general exemption/permission of change of user with regard to all shop-keepers of Sector 15-D was granted came into being on January 19, 1991. The ground of discrimination was not even available to the petitioner at the time when earlier proceedings were initiated and culminated in orders, reference of which has been given above.
14. For the reasons recorded above, this petition succeeds, Orders (Annexures P-l to P-3) are quashed. It shall, however, be open to the respondent-authorities to ask the petitioner to pay the conversion charges and the same shall be paid by the petitioner and not by the transferee. In the peculiar circumstances of the case, there shall be no order as to costs.
15. Petition allowed.