Parkash Chand and Ram Chander vs Chandigarh Administration and Others

Satish Kumar Mittal, J.—In the present writ petition, the petitioner has challenged the order dated 30.12.1983 (Annexure P-1) passed by the Assistant Estate Officer, U.T. Chandigarh, whereby the site No. 2 Sector 27-A, Chandigarh, which was allotted to the petitioner vide allotment letter dated 3.12.1957 was ordered to be resumed on the ground of misuser. The petitioner has also challenged the orders dated 2.5.1989 and 17.8.1989 Annexures-P-2 and P-3, whereby the appeal and revision filed by the petitioner against the aforesaid order were dismissed. The petitioner (since deceased and being represented by LRs), was allotted the free hold residential site in the year 1956.

After raising construction on the same the petitioner and his family started living in the house. In the year 1983 vide impugned order Annexure P-1, the house of the petitioner was resumed on the ground that part of the same was being misused by the petitioner for doing commercial activities like running type college in one room of the ground floor, sale and supply of the wholesale papers and manufacturing and sale of air coolers etc. After resuming the property of the petitioner 10% of the price of the plot was ordered to be forfeited. When the appeal and revision of the petitioner were decided the misuser except one i.e. running the type college, had been stopped. Even the misuser i.e. running of type college was stopped.

During the pendency of the present writ petition, which was filed in the year 1991, house is being used by the petitioner and his family exclusively for residential purpose. When, on 20.2.2012 the premises was inspected by the officials of the Chandigarh Administration, no misuse was found to exist.

In view of the said factual position on 4.3.2013 learned counsel for the petitioner stated that the petitioner is ready to pay misuser charges as per rules and regulations of the Chandigarh Administration. On the said statement learned counsel for the respondent was asked to calculate the misuser charges.

Today learned counsel for the respondent has filed affidavit of the Assistant Estate Officer U.T. Chandigarh with regard to misuser charges to the following effect:

That now after going through the documents placed on record by the petitioners, the legal opinion of the law officer of the Estate Office was obtained. It is clear that the site remained under misuse even after resumption of the site in question i.e. From 1983 to February 2012 as per the petitioners own admission. The office of the respondent conducted an inspection on dated 20.2.2012 on the application made by the petitioner and it was found that the misuse had stopped.

In the said opinion of the Law Officer, it has been observed that notification dated 5.6.2002 vide which the misuse charges have been introduced for the first time was not in existence at the time of resumption of the site in question. Similarly the Estate rules 2007 have also been introduced at a later stage by repealing the Chandigarh (Sales of Sites and Buildings) Rules, 1960 and the Chandigarh Leasehold of Sites and Buildings Rules, 1973, therefore, the misuse charges are not liable to be charged especially in the absence of any show cause notice or provision for the same, although the court can impose any exemplary costs for the misuse of the property for all these years. That it shall be pertinent to mention here that the show cause notice for imposition of misuse charges could not be issued to the petitioners due to the reason that the site was already under resumption since 1983 and the resumption order had been upheld upto the level of revisional authority.

Hence, it is prayed that the resumption orders should be upheld.

According to aforesaid affidavit even no misuser charge are recoverable from the petitioner.

After hearing learned counsel for the parties and in the facts and circumstances of the case particularly the fact that the allotment was made in the year 1957 and the misuse started in the year 1983 has now completely been stopped, we are of the opinion that the resumption of the site on the said ground is not sustainable. It has not been disputed on behalf of the respondents that in several other cases resumption orders have been set aside after misuser has been stopped even in the commercial sites. The present case pertains to a 10 marlas residential site where the entire family of the petitioner residing and in the facts and circumstances of the case the order of resumption of the site on the aforesaid ground in the changed circumstances cannot be allowed to sustain.

A Division Bench of this Court in M/s. Naresh Departmental Store Versus Chandigarh Administration and others, 2001(1) PLR 314 held as under:

"Resumption" is an act of taking back the property. In the very nature of things (it) is a harsh and extreme penalty. It should be resorted to as a last resort. As the last weapon. It results in the loss of property. It also leads to the extinction of rights of the occupant in the premises. It is not only that the allottee loses his ownership but even the right of the tenant to remain in possession is defeated. The legally authorised tenant becomes an unauthorised occupant.

In Chhajju Ram Versus The Union of India and others, 1999 HRR 3, the SCO site was resumed on the ground of misuser. The allottee appeared before this Court and made a statement that he had stopped the misuser and would not use the premises except for the purpose it was allotted for and a Division Bench of this Court, disposed of the matter in the following terms:

On our asking Shri Vijay Kumar son of Shri Chhaju Ram, who is present in Court and who has been identified by Shri Hemant Kumar, made a statement that he has stopped selling sweets and that he will not use the premises for that purpose.

In view of this, we deem it appropriate to dispose of the main writ petition with the following directions:-

(i) The order of resumption passed by the Assistant Estate Officer, exercising the powers of the Estate Officer, Chandigarh shall not be given effect to in view of the undertaking furnished by Shri Vijay Kumar coupled with the oral statement made by him in Court.

(ii) The petitioner shall deposit the amount of forfeiture along with interest at the rate of 12 per cent within a period of one month from today.

(iii) In case the petitioner again misuses premises, the order of resumption shall stand revived and the respondents shall then be entitled to take appropriate action for securing possession of the property in pursuance of the order of resumption. They shall also be free to make an application before the Court for initiation of appropriate proceedings under the Contempt of Courts Act, 1971, on the ground of violation of the undertaking filed before the Court. However, the application for change of user, if any made by the appropriate person, shall not be dismissed only on the ground that the order of resumption has not been quashed specifically. Ordered accordingly.

In view of the above, the present writ petition is allowed and the impugned orders are hereby set aside. Though according to the rules, no misuser charges are recoverable from the petitioner but it is a fact that the premises has been misused by him. We, therefore, impose costs upon the petitioner to the tune of Rs. 25,000/-.