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Ashwani Kumar vs Chandigarh Administration Thr. Its ... on 20 February, 1992 cites

Ram Puri, Chandigarh vs Chief Commissioner, Chandigarh And ... on 18 February, 1982

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:--
Punjab-Haryana High Court Cites 53 - Cited by 51 - Full Document

Mohan Lal vs Jai Bhagwan on 23 March, 1988

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.
Supreme Court of India Cites 7 - Cited by 70 - S Mukharji - Full Document

Ram, Gopal Banarsi Dass vs Satish Kumar on 5 September, 1985

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.
Punjab-Haryana High Court Cites 6 - Cited by 16 - Full Document

Nanak Chand Lachhman Dass vs Estate Officer Cum Executive Engineer, ... on 30 October, 1968

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."
Punjab-Haryana High Court Cites 9 - Cited by 3 - Full Document
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