Mod. Sadiq Sheikh vs U.T. Administration and Others

G.S. Singhvi, J.—This petition has been filed to quash the order Annexure P.5 dated 18.2.1979 passed by the Deputy Chief Administrator, Union Territory, Chandigarh for cancellation of the licence granted to the petitioner in respect of transit site No. 708/20, Sector 26, Chandigarh. The petitioner has also prayed for quashing the appellate order dated 10.8.1992 passed by the Chief Administrator, Chandigarh Administration, the order dated 1.8.1989 passed by the Estate Officer u/s 5(1) of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (hereinafter referred to as the 1971 Act), and the judgment dated 14.11.1991 passed by the learned District Judge, Chandigarh in MCA No. 215 of 1989.

The averments made in the writ petition and the written statement show that on the basis of application submitted by him under Rule 3(1) of the Licensing of Tenements and Transit Sites in Chandigarh Scheme. 1975 (hereinafter referred to as the 1975 Scheme), licence in respect of transit site No. 708, Sector 26, was granted to the petitioner vide Memo No. 643 dated 18.7.1978. Due to non-payment of the licence fee, proceedings under Rule 19(1)(a) and (c) of the 1975 Scheme were initiated against the petitioner vide Memo No. 13/A.LC.-I/NT dated 9.2.1979. By the impugned order Annexure P.5 dated 18.2.1979, the Deputy Chief Administrator cancelled the licence granted to the petitioner. The appeal filed by him was dismissed by the Chief Administrator, Chandigarh on 10.8.1992. In the meantime, proceedings were initiated by the Sub Divisional Magistrate, exercising the powers of the Estate Officer under the 1971 Act for petitioners'' ejectment. After hearing the counsel for the petitioner, the competent authority passed the order Annexure P.2 dated 1.8.1989 u/s 5(1) of the 1971 Act directing that the petitioner be evicted from the site. The appeal filed by him u/s 9 has been dismissed by the learned District Judge, Chandigarh.

The first contention urged by Shri Navkiran Singh is that the basic order of cancellation of licence passed by the Deputy Chief Administrator should be quashed on the ground of violation of the principles of natural justice. He submitted that the notice allegedly issued by the concerned authority under Rule 19 of the 1975, Scheme was not served upon the petitioner and, therefore, the order Annexure P.5, which has been passed in violation of the rule of audi alteram partem should be declared as void. He assailed the order of the appellate authority on the ground of non-application of mind and violation of the principles of natural justice. Learned Counsel invited our attention to the fact that the Estate Officer did not produce the relevant record before the appellate authority and argued that the appellate authority has gravely erred in rejecting the appeal without considering the record of the petitioner''s case. He further submitted that the dismissal of the petitioner''s appeal as barred by limitation was wholly unjustified because the order of cancellation of licence passed by the Deputy Chief Administrator was never communicated to him. The second contention urged by Shri Singh is that the Deputy Chief Administrator could not have cancelled the licence granted to the petitioner ignoring the fact that the amount of licence fee had, in fact, been deposited by the petitioner. Learned counsel invited our attention to the averments made in para No. 2 of the writ petition in support of this submission. Shri Ashok Aggarwal pleaded for upholding the order passed by the Deputy Chief Administrator by contending that the petitioner cannot complain of the denial of opportunity of hearing because the notice dated 9.2.1979 issued to him was duly received by the petitioner but he did not appear. Shri Aggarwal argued that the petitioner, who voluntarily refrained from appearing before the competent authority, should not be allowed to make grievance against the order of cancellation of licence on the ground of violation of the rule of audi alteram partem. Learned counsel also challenged the maintainability of the writ petition on the ground that in the name of Mohd. Sadiq Sheikh son of Rasul Sheikh, some one else has invoked writ jurisdiction of the High Court. He made pointed reference to the various documents filed alongwith the written statement to show that on different occasions, different persons have approached the Chandigarh Administration describing themselves as representatives of the petitioner and these documents have been signed by different persons in the name of the petitioner. Shri Aggarwal also submitted that the acceptance of the amount of licence fee by the Rent Clerk cannot be made basis for invalidation of the order of cancellation passed on 18.2.1979.

We have thoughtfully considered the respective submissions and have carefully perused the record of the case.

The argument of Shri Navkiran Singh that the order of cancellation of licence should be declared nullity on the ground of violation of the principles of natural justice merits rejection in view of the uncontroverted statement made in paragraph 9(i) of the written statement that the show cause notice dated 9.2.1979 was duly served upon the petitioner but he failed to appear before the competent authority. This statement is amply supported by Annexure P.4 which is a photostat copy of the notice dated 9.2.1979 and which bears the signatures of the petitioner in token of the receipt thereof. For the reasons best known to him, the petitioner has not filed replication to controvert the categorical assertion made in the written statement. He has also not produced any evidence to show that Annexure R.4 does not bear his signatures. In view of this, we hold that the order Annexure P.5 was passed by the Deputy Chief Administrator after giving opportunity of hearing to the petitioner under Rule 19 of the 1975 Scheme.

We also do not find any merit in the argument of Shri Navkiran Singh that the order passed by the appellate authority should be invalidated on the ground of non-application of mind. No doubt, the appellate authority was not having the benefit of perusing the record of the Estate Officer because the same,had not been made available to it but in the peculiar facts of this case, we are convinced that this lacuna does not have the effect of rendering the appellate order void because the original order dated 18.2.1979 was passed after giving notice to the petitioner and the appellate authority has merely confirmed the order passed by the Deputy Chief Administrator cancelling the petitioner''s licence. Moreover, the learned counsel has not shown as to what prejudice has been caused to the petitioner merely because the record of the Estate Office was not before the appellate authority. Thesefore, by applying the ratio of the judgments of the Supreme Court in Managing Director, ECIL, Hyderabad, Vs. Karunakar, etc. etc., and S.N. Mukherjee Vs. Union of India, , we hold that the order dismissing the appeal filed by the petitioner cannot be quashed on the ground of non-application of mind.

The 1975 Scheme does not contain any provision casting a duty on the competent authority to communicate the order of cancellation to the affected person notwithstanding the fact that such person was served with the notice issued under Rule 19 of the said Scheme but he did not choose to appear before the competent authority. Therefore, we cannot up set the order passed by the appellate authority dismissing the petitioner''s appeal as time barred on the ground that the copy of the order dated 18.7.1979 was not served upon him. The situation in which the petitioner finds himself, is his own creation and he cannot accuse the appellate authority of having acted arbitrarily.

The acceptance of the licence fee deposited by the petitioner on 9.3.1979 and on various other dates detailed in para No. 2 of the writ petition, cannot, in our considered opinion, be treated as sufficient to condone the failure of the petitioner to deposit the amount of licence fee on the due dates. The petitioner''s effort to create evidence in his favour after the passing of order of cancellation of licence can hardly ensure to his advantage and the said order, which is otherwise legal, cannot be quashed by invoking the theory of deemed condonation of the lapse on the part of the petitioner to pay the licence fee.

We also find considerable force in the submission of Shri Aggarwal that the jurisdiction of this Court under Article 226 of the Constitution of India should not be exercised for cancellation of the impugned orders because more than one person appear to be the claimants of the disputed site. A look at Annexures 1, 2 and 4 filed along with the written statement shows that the same have been signed by one person who has described himself as M. SADIK. Annexure 5 and 6, which appear to be the applications for deposit of the licence fee, have been signed by Pritam Singh for M. Sadiq Sheikh. Application Annexure 7 submitted for deposit of the licence fee has been signed by Jamal Akhtar for M. Sadiq. Annexure 8 is an application submitted before the Chief Administrator by one Mohd. Nabi describing himself as attorney for Mohd. Shadiq Sheikh. Annexure 11 and 12 bear the signatures of "MSS". Similar signatures appear below the verification of the writ petition. The petitioner has not explained the apparent discrepancy in the signatures on the various documents. He has also not averred that Pritam Singh, Jamal Akhter and Mohd. Nabi were authorised by him to file applications on his behalf before the authorities of the Chandigarh Administration. All this lends sufficient credibility to the plea of the respondents that the person named Mohd. Sadiq does not have any interest in the site and some one else has been pursuing the matter before the authorities of the Chandigarh Administration as well as before this Court.

For the reasons mentioned above, the writ petition is dismissed. The interim order passed by the Court on 31.10.1992 stands automatically vacated.