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international Publishers Vs. Union Territory and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Writ Petn. 15156 of 1993
Judge
Reported inAIR2000P& H260; (2000)126PLR579
ActsCapital of Punjab (Development and Regulation) Act, 1952 - Sections 2, 4(1) and 8A; Chandigarh (Sale of Sites and Buildings) Rules, 1960 - Rules 5, 6, 6A, 9 and 9(2); Capital of Punjab (Development and Regulation) (Service of Notice) Rules, 1974 - Rule 1; Chandigarh Leasehold of Sites and Buildings Rules, 1973 - Rule 1
Appellantinternational Publishers
RespondentUnion Territory and ors.
Appellant Advocate R.L. Batta, Sr. Adv. and; Sanjay Tangri, Adv.
Respondent Advocate Subhash Goyal, Adv.
DispositionPetition partly allowed
Cases Referred and Ashwani Kumar v. Chandigarh Administration
Excerpt:
- sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the.....g.s. singhvi, j.1. whether a tenant of a building constructed on the site sold by the chandigarh administration under the capital of punjab (development and regulation) act, 1952 (for short, the act) read with the chandigarh (sale of sites and buildings) rules, 1960 (for short, the 1960 rules) for running a tea stall can seek change of trade as of right and whether the order of resumption passed by the assistant estate officer (exercising the powers of the estate officer), union territory, chandigarh under section 8a of the act is ultra vires to the provisions of the act and the 1960 rules and is contrary to the principles of natural justice are the issues which arise for determination in this petition filed under article 226 of the constitution of india filed by m/s. international.....
Judgment:

G.S. Singhvi, J.

1. Whether a tenant of a building constructed on the site sold by the Chandigarh Administration under the Capital of Punjab (Development and Regulation) Act, 1952 (for short, the Act) read with the Chandigarh (Sale of Sites and Buildings) Rules, 1960 (for short, the 1960 Rules) for running a tea stall can seek change of trade as of right and whether the order of resumption passed by the Assistant Estate Officer (exercising the powers of the Estate Officer), Union Territory, Chandigarh under Section 8A of the Act is ultra vires to the provisions of the Act and the 1960 Rules and is contrary to the principles of natural justice are the issues which arise for determination in this petition filed under Article 226 of the Constitution of India filed by M/s. International Publishers.

The fact

2. There is no dispute between the parties that on the basis of highest bid of Rs. 25,000/- given by him in the auction held by the Chandigarh Administration in May 1969, booth site No. 61, Sector 16-D, Chandigarh was allotted to the petitioner for running a tea stall subject to the terms and conditions stipulated in the fetter dated 9-6-1969. After about 3 years, respondent No. 4 Joginder Pal applied for change of trade from tea stall to meat shop and vide memo No. 857-UTFI(III)-75/4092 dated 18-3-1975, the Administration sanctioned the change of trade. In the meanwhile, respondent No. 4 rented out the booth to the petitioner, who started running its office in the name of International Publishers. On receipt of the information about the use of the premises for a purpose other than the one stipulated in the allotment letter, the Assistant Estate Officer issued notice dated 6-7-1992 (An-nexure P-3) to respondent No. 4 and the petitioner requiring them to show cause against the proposed resumption of the site on the ground of violation of the conditions of sale and by an order dated 20-8-1992 (Annexure P-4) he ordered the resumption of the site and forfeiture of 10% of the premium i.e. Rs. 2500/- plus interest by observing that neither the allottee nor the tenant has offered any justification for misuse of the premises. The appeal and the revision filed by the petitioner under Section 10 of the Act were dismissed by the Chief Administrator, Union Territory, Chandigarh (respondent No. 2) and the Adviser to the Administrator, Union Territory, Chandigarh respectively. Thereafter, order dated 21-1-1993 (Annexure P-1) was passed by respondent No. 3 under Section 5(i) of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 for ejectment of the petitioner and respondent No. 4.

3. It is borne out from the record that after a passing of order of resumption, Shri M.M. Kaushal, Proprietor of the petitioner submitted an application Annexure P-7 dated 26-4-1993 for permission to change the use of the trade and to allow him to run book shop instead of meat shop. The same was rejected by respondent No. 3 vide letter Annexure P-8 dated 3-5-1993 on the ground that with the resumption of the site, booth had become public property and having failed to convince the competent authority to accept its request, the petitioner invoked jurisdiction to this Court under Article 226 of the Constitution of India for quashing of the order of resumption and the orders passed by the appellate and the revisional authorities.

4. When the petition was listed on 8-12-1993 for motion hearing, the Court passed the following order :

'Adjourned to January 24, 1994.

In the meantime, a direction is given to respondent No. 1 to take up the matter again and take a decision on the question as to whether change of user should be permitted in the present case in accordance with the notification dated January 22, 1993 or not. The petitioner is directed to appear before respondent No. 1 on December 20, 1993. Such a decision will be taken before the date fixed, as above.

If respondent No. 1 allows the change of user, the order of resumption shall automatically stand cancelled. Otherwise, the petitioner will produce copy of the order passed by respondent No. 1.

Dasti on payment.'

5. In pursuance of that order, representative of the petitioner appeared before the Adviser to the Administrator and submitted an application for permission to change the trade from meat shop to publishing/book shop, who rejected the same on 29-12-1993 (Annexure P-12). Thereafter, the petitioner sought amendment of the writ petition and prayed that the order dated 29-12-1993 passed by the Adviser to the Administrator, Union Territory, Chandigarh may also be quashed.

6. The petitioner has challenged the order of resumption as well as the appellate and the revisional orders mainly on the ground of violation of its fundamental right to equality and right to carry trade and business, violation of the principles of natural justice and mala fide exercise of power by the Assistant Estate Officer. It has also challenged the order dated 29-12-1993 on the ground of discrimination and non-application of mind. In support of these grounds of challenge, the petitioner has averred that respondent No. 4 had filed a petition for its eviction on the ground of non-user of the premises, which was allowed by the Rent Controller on 31-5-1985 and the appeal filed by it was dismissed on 3-9-1985 by the appellate authority but in Revision Petition No. 3128 of 1987, the High Court had stayed its eviction and that order is still operative. According to the petitioner, after having failed to secure possession of the site through Court proceedings, respondent No. 4 connived with the concerned authorities of the Chandigarh Administration and succeeded in initiation of proceedings under Section 8A of the Act and this factor alone should be treated as sufficient to quash the impugned orders. It has further averred that before passing the order of resumption, the Assistant Estate Officer did not ensure the service of notice in accordance with the Capital of Punjab (Development and Regulation) (Service of Notice) Rules, 1974 (for short the 1974 Rules) and, therefore, the order passed by him should be declared as void. Still further, it has averred that the refusal by the Adviser to the Administrator, Union Territory, Chandigarh of its request for change of trade is not only arbitrary and is against the spirit of the notification dated 22-1-1993, but is also discriminatory because in other cases, permission for change of trade had been granted.

7. The case of respondents Nos. 1 to 3, as set out in the written statement on their behalf, is that the order of resumption was passed because the site in question was being misused for running the office of the petitioner, whereas it was meant for tea stall/meat shop. According to them, notice under Section 8A of the Act was issued to the petitioner but its representative refused to accept the same and, therefore, the order of resumption was passed keeping in view the fact that the misuse had not been vacated. These respondents have pleaded that the order dated 29-12-1993 does not suffer from any legal infirmity because in its capacity as a tenant, the petitioner did not have the locus standi to seek change of trade and respondent No. 4 had not filed application in pursuance of the notification dated 22-1-1993.

8. In his written statement, respondent No. 4 has averred that the petition for eviction was filed before the Rent Controller in 1984 because the petitioner had not used the premises since April/May, 1979. He has alleged that at the time of giving the premises on rent, it was made known to the petitioner that the booth in question is meant for tea stall.

9. The petitioner has filed a joint replication to the written statement of respondents Nos. 1 to 3 and respondent No. 4 reiterating the assertions made in the writ petition including the one that respondent No. 4 had not disclosed the nature of the trade forwhich the site had been allotted to him.

10. The first argument of Shri R. L. Batta, Senior Advocate appearing for the petitioner is that the order dated 29-12-1993 passed by the Adviser to the Administrator should be declared illegal and quashed because the reason assigned by him is ex facie erroneous. Learned Counsel referred to the provisions of Section 2(k) of the Act and clause 2 of the notification dated 22-1-1993 and argued that in his capacity as tenant, the petitioner was entitled to seek change of the trade and the concerned authority should have accepfed its prayer because change of trade from tea shop/meat shop to the book shop was in the larger interest of public. Learned Counsel submitted that the site in question is near the University and, therefore, running a book shop would not violate the concept of planned development. He then referred to the provisions of notifications Nos. 2722-UTFI (3)-98/7018 and No. 2722-UTFI (3)-98/7021 published in the Chandigarh Administration Gazette dated 20-5-1998 and argued that in view of latest policy framed by the Chandigarh Administration, the petitioner is entitled to seek change of the trade as of right. In support of his submissions, learned Counsel relied on Brij Mohan v. Chief Administrator, UT, AIR 1980 Punj & Bar 236; Ram Gopal Banarsi Dass v. Satish Kumar, AIR 1986 Punj & Har 52 and Ashwani Kumar v. Chandigarh Administration, AIR 1992 Punj & Har 274. He then argued that the order passed by the Assistant Estate Officer should be declared as void because he did not comply with the mandatory provisions contained in the 1974 Rules. Learned Counsel submitted that the notice allegedly issued by the Assistant Estate Officer was not served upon the representative of the petitioner and, therefore, the order of resumption should be quashed on the ground of violation of the principles of natural justice. He further submitted that the Assistant Estate Officer was bound to ensure the service of notice in accordance with the 1974 Rules and his failure to do so should be treated as sufficient for nullifying the impugned orders. He then argued that the order of resumption passed without affording opportunity of hearing to the petitioner must be treated as nullity and the same be quashed irrespective of the fact that the appeal and the revision filed by the petitioner have been dismissed. On the other hand, Shri Subhash Goyal argued that the petitioner's prayer for change of trade has been rightly declined by the Adviser to the Administrator because only a transferee/lessee can seek the change of trade and not a tenant of such transferee/ lessee. He submitted that clause 2 of the notification dated 22-1-1993 does not entitle a tenant of the owner/lessee to seek change of trade. He pointed out that the word 'owner/transferee' has been used in the 1960 Rules, whereas the word 'lessee' has been used in Chandigarh Leasehold of Sites and Building Rules, 1973 (for short, 'the 1973 Rules') and neither of these terms include the word 'tenant' for the purposes of seeking change of trade. Learned Counsel distinguished the decision of Brij Mohan's case (AIR 1980 Punj & Har 236) by arguing that the issue raised therein was confined to the claim of the tenant to be heard in the proceedings initiated under Section 8A of the Act and submitted that the said judgment cannot be read as laying down a proposition that the tenant of the owner/transferee/lessee can seek change of the trade for which the site is allotted. Shri Goyal countered the argument of Shri Batta on the issue of alleged denial of opportunity of hearing to the petitioner and argued that after having refused to accept the notice sent by the Assistant Estate Officer, the petitioner cannot complain of the violation of the principles of natural justice.

11. Before dealing with the respective contentions, we consider it proper to take notice of the provisions of Sections 2(h), (j) and (k), 3, 4(1)(f), 8-A(1) and 22(2)(d) of the Act and Rule 9 of the 1960 Rules, which have bearing on the issue raised in the petition. The same read as under :

'Sections 2(h), (j) and (k), 3, 4(1)(f), 8-A(i) and 22(2)(d) of the Act.

2. Definitions-- In this Act, unless the context otherwise requires,--

xx xx xx (h) 'occupier' means a person (including a firm or other body of individuals, whether incorporated or not) who occupies a site or building transferred under this Act and includes his successor and assigns;

xx xx xx (j) 'site' means any land which is transferred by the Central Government underSection 3;

(k) 'transferee' means a person (including a firm or other body of individuals, whether incorporated or not) to whom a site or building is transferred in any manner whatsoever, under this Act and includes his successor and assigns;

xx xx xx 3. Power of Central Government in respect of transfer of land and building in Chandigarh (1) Subject to the provisions of this section, the Central Government may sell, lease or otherwise transfer, whether by auction, allotment or otherwise, any land or building belonging to the Government in Chandigarh on such terms and conditions as it may subject to any rules that may be made under this Act, think fit to impose.

(2) The consideration money for any transfer under Sub-section (1) shall be paid to the Central Government in such manner and in such instalments and at such rate of interest as may be prescribed.

(3) Notwithstanding anything contained in any other law for the time being in force, until the entire consideration money together with interest or any other amount, if any, due to the Central Government on account of the transfer of any site or building, or both under Sub-section (12) is paid, such site or building, or both, as the case may be, shall continue to belong to the Central Government.

4. Power to issue direction in respect of erection of building. (1) For the purpose of proper planning or development of Chandigarh, the Central Government or the Chief Administrator may issue such directions, as may be considered necessary, in respect of any site or building, either generally for the whole of Chandigarh or for any particular locality thereof, regarding any one or more of the following matters, namely :

xx xx xx (f) restrictions regarding the use of site forpurposes other than erection of buildings.

xx xx xx 8-A. Resumption and forfeiture for breach of conditions of transfer.-- (1) If any transferee has failed to pay the consideration money or any instalment thereof on account of the sale of any site or building or both, under Section 3 or has committed a breach of any other conditions of such sale, the Estate Officer may, by notice in writing, call upon the transferee to show cause why an order of resumption of the site or building, or both, as the case may be, and forfeiture of the whole or any part of the money, if any, paid in respect thereof which in no case shall exceed ten per cent of the total amount of the consideration money, interest and other dues payable in respect of the sale of the site or building or both should not be made.

xx xx xx 22(2)(d) the terms and conditions under which the transfer of any right in any site or building may be permitted.

xx xx xx Rule 9 of the 1960 Rules

9. Use of site or building [Section 22(2)(c)]. The transferee shall not use the site or building for a purpose other than that for which it has been sold to him. In the case of commercial or industrial sites and commercial or industrial buildings the transferee shall not carry on any trade or employ any industry other than that specified by the Estate Officer.

(2) Instead of specifying any particular trade or industry, the Estate Officer may specify that the transferee shall not carry on any trade or employ any industry other than General Trade, Semi-Industrial Trade or Special Trade.

(3) The expression 'General Trade', 'Semi-Industrial Trade' and 'Special Trade' shall mean one or more of the trades respectively mentioned in Parts A, B and C of the Schedule annexed to these rules and shall include any other trade which is not so mentioned provided that such other trade is similar to and carried on in the same fashion as mentioned in the respective part of the Schedule.'

The terms and conditions subject to which the site was allotted to respondent No. 4 are incorporated in letter No. 7956/CP/944(CIA-I) dated 9-6-1969 issued by respondent No. 3. That letter has not been placed on record by either of the parties but it is contained in the file produced by the learned Counsel for the official respondents. Clauses 1, 6, 7 and 16 of the said letter, which are relevant for our purposes, are reproduced below :

'Reference to your bid at the auction held on 25-5-69 the following commercial site is hereby allotted to you on the condition mentioned hereunder :

Sector

Serial No. of the site

Dimensions

Area in sq. yards

Price

Trade

16-D

61 Booth site

26'-7-1/2' 9'-1-1/2'

26.99

25000/-

Tea shop.

XX

XX

XX

6. The sale shall be governed by theprovisions of the Capital of Punjab (Development and Regulation) Act, 1952 as amended up to date and the rules made thereunder including the Chandigarh Advertisement Control Order, 1954.

7. The deed of conveyance in the prescribed form shall have to be executed within such time and in such manner as may be directed by the undersigned.

xx xx xx 16. The site and the building constructed thereon shall be used only for the purpose for which it is actually sold i.e. Tea Shop.'

Clause 7 of the letter dated 9-6-1969 envisages execution of the conveyance deed, but the file produced by Shri Goyal does not contain copy of such deed.

12. A conjoint reading of the provisions reproduced above along with the conditions embodied in the letter dated 9-6-1969 gives an impression that the allotment of site made in favour of respondent No. 4 is governed by the provisions contained in the Act and the 1960 Rules which were applicable in the cases of sale of sites and buildings at the relevant time. If the definition of word 'transferee' is read in conjunction with the definition of the term 'occupier' and the conditions embodied in Forms B, C and D appended to the 1960 Rules, there is little difficulty in holding that before an order of resumption can be passed by the competent authority, the allottee/transferee as well as his tenant has the right to be heard and an order made without giving notice and opportunity of hearing to either of them would be liable to be nullified. In our opinion, the term 'occupier' defined in Section 2(h) of the Act takes within its scope tenant of the owner/ transferee and as he is the person likely to be affected by the order of resumption, the competent authority is bound to issue notice and hear him before an order of resumption can be passed. This is precisely what has been held in Brij Mohan's case (AIR 1980 Punj & Har 236). In that case, the tenants of the sites had challenged the orders of resumption on the ground that they were not given notice and opportunity of hearing. Their plea was contested by the respondents on the ground that the definition of the term 'transferee' did not include the tenant or the lessee. A Full Bench of this Court to whom the matter was referred accepted the plea of the tenants and held as under :

'The proposed order of resumption has dual consequences : (i) the depriving oi ownership right in the site or building which concerns only the owner of the site or building and (li) the deprivation of the lessee of his lawful possession thereof. Such being the consequences of the order of resumption, both lessee and his lessor would be affected by the order and would thus be entitled to be heard before such an order is passed.

The definition of expression 'transferee' given in clause (k) of Section 2 of the Act cannot be considered to be exhaustive, for clause (k) is prefixed by the expression 'in this Act, unless the context otherwise requires'. The clue for the proposition that expression 'transferee' also includes a lessee, is also available in clause (II), the penultimate portion of Form 'D' which is a model conveyance deed envisaged in Rule 8-A of the Chandigarh (Sale of Sites and Buildings) Rules, 1960. The Form 'D' which, is required to be executed by a transferee is envisaged by Rule 8-A of the 1960 Rules and Rule 8-A in turn is envisaged in Section 3 of the Act. Therefore, the model conveyance deed envisaged in Form 'D' acquires a statutory character. Apparently, the definition of the expression 'transferee' given in the penultimate portion of the conveyance deed read with the expression 'transferee' given in Clause (c) thereof would certainly show that the expression 'transferee' in Clause (c) refers not only to the transferee of the site or building from the Central Government but also the lessee.

Section 8A of the Act is in the nature of a package provision providing for action for variety of breaches of the conditions or terms of sale of the site or building, some of which, in the very nature of things, could be committed alone by the direct transferee or his successor-in-interest and not the lessee,and some of which can be committed both by the transferee and his lessee. Where the condition violated is such for which both the lessor and the lessee can be held liable, i.e., breach of the condition or rule regarding the use of a particular site or building by a tenant, then the expression 'transferee' would cover both of them.'

13. In our opinion, the decision of Brij Mohan's case (AIR 1980 Punj & Har 236) is of little help in deciding the present petition because the issue raised in it is substantially different. What the petitioner has prayed is not only the quashing of the order of resumption on the ground of denial of opportunity but also that being a tenant of the premises, it is entitled to seek change of the trade as of right and the rejection of its prayer by respondent No. 3 and Adviser to the Administrator is illegal. As against this, the official respondents have pleaded that being a tenant of the site allotted under the 1960 Rules, the petitioner does not have the right to apply for change of the trade under clause 2 of the notification dated 22-1 -1993.

14. For deciding the all important questions as to whether the tenant can seek change of the trade, we deem it proper to mention that the use of site or building sold under the 1960 Rules is regulated by Section 4(1)(f) of the Act read with Rule 9 of the 1960 Rules. Sub-rule (1) of Rule 9(1) of the 1960 Rules declares that the transferee shall not use the site or building for a purpose other than that for which it has been sold to him. In the case of commercial and industrial sites or commercial and industrial buildings, the transferee is not entitled to carry on any trade or employ any industry other than that specified by the Estate Officer. Sub-rule (2) of Rule 9(2) lays down that the Estate Officer may, instead of specifying any particular trade or industry, simply specify that the transferee shall not carry on any trade or employ any industry other than general trade, semi-industrial trade or special trade. These expressions have been defined in Sub-rule (3). The argument of Shri Batta that the word 'transferee' used in Rule 9 of the 1960 Rules should derive its colour from Section 2(k) of the Act sounds attractive but lacks merit and deserves to be rejected. In our opinion, the word 'transferee' used in Rule 9 must derive its colour from the context in which it has been used in the 1960 Rules and not the general definition contained in Section 2(k) of the Act. Rules 5 and 6 of the 1960 Rules envisage sale of site or building by allotment and by auction. For the purposes of these two rules, the word 'transferee' means the person who submits application for purchase of the site or building by allotment or who participates in the auction. Rule 6-A, which contains a non obstante clause empowers the Government to transfer or sell any building by hire-purchase agreement. In the context of that rule, the word 'transferee' would mean the person to whom the site or building has been transferred by the Government by hire-purchase agreement. The plain language of these rules does not make any reference to the tenant or lessee of the transferee. Therefore, we do not find any justification to import the concept of the term 'transferee' as interpreted in Brij Mohan's case (AIR 1980 Punj & Har 236} for the purposes of deciding whether a tenant or lessee of the transferee can apply for change of the trade. This view of ours is fully supported by the expression 'In this Act, unless the context otherwise requires......' used in the opening part of Section 2 of the Act.

15. In the light of the above, it is to be seen whether the order dated 29-12-1993 passed by the Adviser to the Administrator declining the petitioner's request for grant of permission to change the trade is vitiated by an error of law. For this purpose, we may refer to the extracts of para 1 and para 2 of the notification dated 22-1-1993 and the two notifications dated 20-4-1998. The same read as under :

'Extract of para 1 and para 2 of the notification dated 22-1-1993.

No. UTFI(3)-93/716. In exercise of powers conferred under Section 4 of the Capital of Punjab (Development and Regulation) Act, 1952, the Chief Administrator, Chandigarh, is pleased to issue the following directions regarding sub-division of shops, change of trade and construction of buildings without sanction of building plan, namely :--

1. Sub-Division of shops.

In the City Sector-17, Chandigarh maximum four sub-divisions of shop size 34'-6' x 103'-0' shall be allowed at the ground floor only with minimum size of each sub-division as 17'-3' x 51 '-6' inclusive of public corridor subject to the following conditions namely :

(a) The ownership of the shop shall not bechanged.

xx xx xx (e) The owner/lessee of the site shall provide a partition only after getting the building plans approved from the Chief Administrator, Chandigarh.

(f) The owner/lessee of the site shall pay the prescribed fees as under to the Estate Officer, Chandigarh.

xx xx xx 2. Change of Trade.

In general the change of trade shall not be allowed and the rules regarding use of the site shall strictly be enforced. In certain cases where change of trade is considered essential due to change in socio-economic needs or where it is necessary to fulfil unforeseen public needs, the change of trade shall be considered on merit of each case and be allowed by charging the conversion charges i.e. the difference between the present market rate of the site for the new trade and the original trade.

While allowing the change of trade no change of land use shall be permitted under any circumstance.

xx xx xx Extracts of the notifications dated 20-5-1998

No. 2722-UTFI (3)-98/7018.-- In exercise of the powers conferred by sub-rule (11)of Rule 17 of the Chandigarh Leasehold ofSites and Building Rules, 1973, the ChiefAdministrator, with the prior approval of theAdministrator, Union Territory, Chandigarhmakes the following order in respect of siteshave been allotted for Shop-cum-Flats :--

xx xx xx 2. Only the lessee of a shop-cum-flat shall be entitled to apply for the conversion.

xx xx xx No. 2722-UTFI (3)-98/7021.-- In exercise of the powers conferred by sub-rule (3) of Rule 9 of the Chandigarh (Sale of Site and Building) Rules, I960, the Chief Administrator, with the prior approval of the Administrator, Union Territory, Chandigarh makes the following order in respect of sites have been allotted for Shop-cum-Flats :--

xx xx xx 2. Only the transferee of a shop-cum-flatshall be entitled to apply for the conversion.'

16. Abare reading of the above extracted portions of the three notifications shows that only the owner or the lessee can seek partition after getting the building plan approved from the Chief Administrator, Chandigarh on payment of the fee prescribed for composition. The word 'owner1 has been used in this notification in the context of the 1960 Rules, while the word 'lessee' has been used in the context of the 1973 Rules. Similarly, the word 'lessee' appearing in notification No. 2722-UTFI (3)-98/7018 has been used in the context of the 1973 Rules, while the word 'transferee' has been used in notification No. 2722-UTFI (3)-98/7021 in the context of the 1960 Rules and there is nothing in these rules from which it can be inferred that a tenant of the owner or transferee or lessee can invoke the provisions of these notifications either for the purpose of bringing about structural changes in the existing premises or for change of the trade. We, therefore, hold that the reasons assigned by the Adviser to the Administrator for declining the petitioner's prayer for permission to change the trade does not suffer from any legal error warranting interference by the Court.

17. The issue may be examined from another angle. A tenant or lessee of the owner/transferee does not have any direct relation with the Chandigarh Administration. Therefore, by directing the competent authority of the Administration to entertain the application of the tenant for change of trade, the Court cannot create new relationship and/or modify the existing contract/ agreement between the Administration and the owner/transferee. If the right of the tenant to submit applications under the notifications, referred to hereinabove, is accepted, then every tenant may, without the consent of the landlord (owner/transferee), seek change of the trade and even make structural alterations in the site simply by making an application to the competent authority. This would lead to multiplicity of litigations between the owner/transferee and the tenant on the one hand and owner/ transferee and the Chandigarh Administration on the other hand and we do not think that the Court can interpret the provisions of the notifications in a manner which may lead to such unwarranted consequences.

18. The question which remains to be considered is whether the order of resumption passed by the Assistant Estate Officer isvitiated due to violation of the principles of natural justice. In para 6 of the writ petition, it has been averred that the order of resumption was passed by the Assistant Estate Officer without ensuring the service of notice upon the petitioner. In the written statement filed on behalf of respondents Nos. 1 to 3, it has been averred that the petitioner/ occupier refused to receive the notice and, therefore, the order of resumption was passed. In the replication, the petitioner has reiterated that it had not received the notice, as alleged by the official respondents. In this context, we may take notice of the fact that in para 3 of the memo of appeal filed under Section 10 of the Act (Annexure P-5), the petitioner had specifically pleaded that the appellant had not been served in accordance with law and it had not refused to accept the notice and further that the service was also not affected by fixation. An argument to this effect was also made before the revisional authority, as is evident from para 4 of the order Annexure P-9 passed by the Adviser to the Administrator. It is, thus, clear that the petitioner had consistently made a grievance that the order of resumption was passed without giving notice to it. As against this, the official respondents have rest contended by making a bald statement that the petitioner had refused to accept the notice. However, neither before the appellate and the revisional authorities nor before this Court any evidence has been produced to prove that the notice issued by the Assistant Estate Officer under Section 8A of the Act had, in fact, been offered to the representative of the petitioner and the same was refused. Therefore, we agree with Shri Batta that the order of resumption has been passed in violation of the principles of natural justice and on this ground, it is liable to be quashed. We are also of the view that before passing the order of resumption, the Assistant Estate Officer was under an obligation to ensure that the notice issued to the petitioner is duly served upon its representative in accordance with the 1974 Rules and as he has failed to do so, the order passed by him will have to be invalidated. The appellate and the revisional orders also deserve to be quashed because neither respondent No. 2 nor the Adviser to the Administrator has adverted to the issue relating to violation of the principles of natural justice.

19. In the result, the writ petition is partly allowed. Order of resumption passed by the Assistant Estate Officer as well as the orders passed by appellate and the revisional authorities are declared illegal and quashed with liberty to the competent authority to pass fresh order under Section 8A, of the Act after giving notice and opportunity of hearing to the petitioner and respondent No. 4. However, the petitioner's prayer for quashing of the order dated 29-12-1993 is rejected.


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