Jai Parkash Bhardwaj vs Union of India (UOI) and Others

G.R. Majithia and S.K. Jain, JJ

The petitioner has challenged the order of the Estate Officer, Union Territory, Chandigarh, dated August 16, 1983, resuming plot No. 160, Sector 26, Chandigarh, the appellate order of the Chief Administrator, Union Territory, Chandigarh, dated April 30, 1990, and the revisional order passed by the Adviser to the Administrator, Union Territory, Chandigarh, dated December 6, 1991, in this petition under Articles 226/227 of the Constitution of India,

The order of resumption says that the petitioner has made material changes in the building and thus violated the provisions of Rule 5 of the Building Rules. It is no more in dispute that the Chandigarh Administration vide order dated February 14, 1993, had decided to allow change of trade from godown to general trade, provided the owner of the godown makes payment @Rs. 135/- per sq. yard as trade change charges. The petitioner applied for change of trade on October 6,1992 and his prayer was declined as before that, the order of resumption had been passed on account of raising construction in violation of the Building Rules.

It is unfortunate that the respondents have not taken note of the dictum of the Supreme Court laid down in Civil Appeal No. 2761 of 1980, decided on November 5,1980, where it was observed thus :-

" There is no substance in the appeal and it must be rejected but if the appellants pay to the Estate Officer of the Chandigarh Administration, a sum of Rs. 37,500/- within two months from today the order forfeiting the land will be set aside and the appellants will be allowed to continue as holders of the land with the changed user. The draft of Rs.25,357.05 paise which has been deposited by the appellants in the court will be handed over to the Estate Officer and the balance will be paid by the appellants to the Estate Officer within the aforesaid period of two months, on which payment being made the order forfeiting the land will stand cancelled and set aside. If the amount of the balance is not paid within a period of two months, the order of forfeiture will stand and the Estate Officer will refund the amount of Rs. 25357.05 paise (which has been deposited by the appellants in the court) to the appellants without any further application by them in that behalf. If the amount of Rs. 47500/- is paid by the appellants as aforesaid, the change of user shall stand recognised and sanctioned by the Chandigarh Administration. There will be no order as to costs of the appeal.

And this court doth further order that stay granted by this court by its order dated 20th April, 1979 passed in Civil Misc. Petition No. 6152 of 1979 be and is hereby vacated subject to the order above quoted.

And this court doth lastly order that this order be punctually observed and carried into execution by all concerned."

Apart from this, it is permissible, to allow change of trade from Godown to general. If the petitioner has purchased the plot for a godown, he can be permitted to change the trade provided he pays the requisite charges. He has not been allowed the change of trade because he submitted his application late. The claim of the petitioner should not have been rejected on technical grounds. If change of trade could be allowed on payment of trade charges, the same could not be disallowed merely because he submitted his application late. He also could not be denied the relief because resumption order had been issued. If the resumption order had been issued for making alterations in the building in violation of the Building By-laws and the construction made in violation of the Building By-laws could be compounded, there was no justification for refusing to compound the violations. In a welfare State, the authorities are expected not to act arbitrarily but fairly.

At the time of motion hearing, the learned counsel for the petitioner submitted that the unauthorised constructions which do not fall within the ambit of compounding rules had been removed. Learned counsel for the respondents could not controvert the statement of the petitioner''s counsel. The construction , which exists is compoundable and the same will be compounded after the petitioner is allowed change of trade. There is no bar in law for allowing him the change of trade after he had made the payment of requisite fee.

For the reasons stated above, the impugned orders passed by the Estate Officer, Chief Administration and the Adviser to the Administrator, Union Tarritory, Chandigarh are quashed. The respondents are directed to allow the change of trade on payment of requisite fee.

The writ petition is disposed of accordingly.