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PAWAN KUMAR MUTNEJA versus CHANDIGARH ADMINISTRATION

High Court of Punjab and Haryana, Chandigarh

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Pawan Kumar Mutneja v. Chandigarh Administration - CWP-11998-1992 [2006] RD-P&H 3305 (19 May 2006)

C.W.P. No.11998 of 1992 1

IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH

Civil Writ Petitioner No.11998 of 1992

Date of decision: April 24, 2006

Pawan Kumar Mutneja and another V. Chandigarh Administration ( substituted as petitioners in place of and others Ms. Simarjot Kaur vide order dated

May 6,1997 passed in CM No.7941

of 1997 )

CORAM: HON'BLE MR. JUSTICE VINEY MITTAL
HON'BLE MR. JUSTICE H.S.BHALLA

Present: Mr. Rajiv Atma Ram, Senior Advocate, with Shri A.M.Punchhi Advocate,for the petitioners.

Mr.Rajiv Raina, Advocate, for the respondents.

Viney Mittal,J.

The present petition was filed originally by Ms. Simjot Kaur challenging the orders Annexures P1 to P3 whereby the site in question being House No.541, Sector 18-B, Chandigarh was ordered to be resumed by the Estate Officer and the appeal and revision filed by the aforesaid owner were dismissed, by the appellate as well as revisional authorities.

Certain facts be noticed:

A residential site being House No. 541, Sector 18-B, Chandigarh was allotted to mother of Simarjot Kaur. Subsequent to the allotment, a residential house was constructed thereon. The case of the petitioner is that the aforesaid house was let out to respondent No.4, St.

Peter School through Sqn. Ldr. S.S.Khanna for the purpose of residence.

However, the tenant started running a school therein. On account of the misuser of the premises, the Assistant Estate Officer issued show cause notice dated November 9,1987 for showing cause as to why the site in question be not resumed under section 8(A) of the Capital of Punjab ( Development a d Regulation)Act,1952. It has been claimed that an exparte resumption order was passed on December 7,1987. Simarjot Kaur filed an appeal before the Chief Administrator. The said appeal was dismissed on July 28,1989. Revision petition filed by her also failed before C.W.P. No.11998 of 1992 2

the revisional authority on October 25,1989. It is in these circumstances that the present petition was filed by petitioner, Simranjit Kaur, challenging the resumption order as well as appellate and revisional orders.

It appears from the record that Simranjit Kaur even prior to the filing of the present petition had sought eviction of the tenant, respondent No.4, in proceedings before the Rent Controller, Chandigarh. The aforesaid eviction was sought on the ground of change of user by claiming that house in question had been let out for residential purposes whereas the same was being used by the tenant for running a school without the permission of the landlady. The Rent Controller dismissed the aforesaid ejectment petition vide order dated October 18, 1993. An appeal was filed by the landlady. During the course of the pendency of the aforesaid appeal, the present petitioners purchased the house in question vide registered sale deed dated January 27,1995. On account of the aforesaid fact, they were impleaded as parties to the appeal. The appellate authority allowed the appeal filed by the landlords and, consequently, order eviction of respondent No.4 by holding that the tenant had change the user of the premises without the consent of the landlord. However, the aforesaid eviction order passed against respondent No.4 was ordered to be kept in abeyance on account of the pendency of the present petition. Two separate revisions were filed before this court. One revision was filed by the landlord against keeping the eviction of the tenant in abeyance, another revision was filed challenging his eviction. Vide order dated December 17,1996, both the revision petitions were disposed of by this court. The eviction of the tenant was upheld. An SLP was filed by the tenant before the Supreme Court of India. On February 17,1997, the SLP filed by the tenant was rejected upholding the findings recorded by this court. The eviction of the tenant was upheld. However, the tenant was directed to hand over the vacant possession of the premises to the landlord by April 30,1998 subject to his furnishing usual undertaking within four weeks. The relevant portion of the order dated February 17,1997 passed by the Apex Court may be noticed as follows : " We have heard Shri R.F.Nariman, learned senior counsel for the petitioners and Sh. K.Parasaran,learned senior counsel for the respondents. We have also perused the High Court judgment as well as the record.

We do not find any ground to interfere with the impugned C.W.P. No.11998 of 1992 3

judgment of the High Court. The petitioners are granted time to hand over the vacant possession of the premises to the respondents by 30th

April,1998 subject to their

furnishing the usual undertaking within a period of four weeks. It is, however, made clear that in view of the findings recorded by the High Court in the impugned judgment that respondent No.2 had let out the premies for residential purposes which findings has not been disturbed by this Court. It will be open to the respondents to take necessary steps to move the concerned authorities under Rule 11(d) of the Chandigarh Urban Development Laws Rules, 1960 for re-allotment. If such an application is made that fact that the petitioners are being allowed to continue in the premises till 30th

April,1998 under this order will not

stand in the way with the competent authority dealing with the said application on its merits. The S.L.P. Is disposed of accordingly."

The petitioners also filed a Civil Miscellaneous Application No.7941 of 1997 for their substitution as the writ petitioners in the present case. The aforesaid application was also allowed by this court vide order dated May 6,1997 and the present petitioners were ordered to be substituted in the present petition. It further appears from the record that in execution proceedings on account of the non-payment of the rent by the tenant, vacant possession of the premises was handed over to the landlords on June 10,1997. Therefore, the present petitioners have maintained that the misuser of the premises in question came to an end with effect from the aforesaid date i.e. June 10,1997. The present petition was disposed of by a Division Bench of this court on December 21,1998.

On account of the observations made by the Apex Court vide order dated February 17,1997, it was held that the petitioners could seek re-transfer of the property in question under Rule 11-D of the Rules. In these circumstances, the petitioners approached the Supreme Court seeking a clarification of the earlier order dated February 17,1997. Vide order dated July 13,1999 the aforesaid earlier order was clarified by the Apex Court. It would be relevant to notice order dated July 13,1999 as under : C.W.P. No.11998 of 1992 4

" These special Leave Petitions were

disposed of by the order dated 17th

February,1997 which

inter-alia provided as under :

"It is, however, made clear that in view of the findings recorded by the High Court in the impugned judgment that the respondent No.2 had let out the premises for residential purposes which finding has not been disturbed by this Court, it will be open to the respondents to take necessary steps to move the concerned authorities under Rule 11(d) of the Chandigarh Urban Development Laws Rules, 1960 for re-allotment. If such an application is made that fact that the petitioners are being allowed to continue in the premises till 30th

April,1998 under this order will not stand in the way with the competent authority dealing with the said application on its merits. The S.L.P. Is disposed of accordingly."

It is stated in these applications for

clarification filed on behalf of the respondents that it was on account of the above observations that the High Court did not hear the respondents-applicants in the writ petition on merits which they had filed against the order by which the land was sought to be resumed. It is stated that the High Court was of the opinion that on account of observations made by this Court, which have been extracted above, the respondents-applicants were precluded from challenging the order of resumption by a writ petition and the only course open to them was to apply under Rule 11(d) of the Chandigarh (Sale of Site and Buildings)Rules,1960 for re-allotment.

It may be pointed out that the order by which the grant in favour of the respondents-applicants was sought to be resumed, was not in issue before us. The validity of that order had already been questioned by the respondents-applicants before the High Court. Any observation made by us while disposing of the Special Leave Petitions could not legally have the effect of C.W.P. No.11998 of 1992 5

precluding the applicants from challenging the order of resumption on merit. All that we intended was that the tenant, who was guilty of mis-using the property, in which he had started a school had to be evicted, for which time was allowed to tenant to vacate and an option was given to the respondents-applicants to apply for re-allotment unde Rule 11(d). This was in addition to the proceedings which had already been initiated by the respondents- applicants in the High Court questioning the validity of the order of resumption.

It is pointed out that the order passed by the High Court has been questioned by the respondents- applicants in this court by filing a Special Leave Petition.

It is also pointed out that the SLP is still pending. Since the High Court had not looked into the merits of the case on the strange premise that the respondents-applicants were precluded from challenging the order of resumption on merits and the only course left to them was to apply for re-allotment, it would be open to the respondents applicants to apply in review before the High Court and if a review application is filed, it will be disposed of on merits in the light of the observations made above, particularly for the reason that if the order of resumption is ultimately found to be bad by the High court,there would be no occasion for the respondents-applicants to apply for re-allotment.

The I.As are disposed of accordingly."

In view of the aforesaid clarification given by the Apex Court, the petitioners filed review application No.79 of 2002 before this court seeking the review of the earlier order dated December 21,1998. The review petition filed by the petitioners was allowed vide order dated September 5,2003. The main writ petition was restored back to its original number.

It is in these circumstances that the matter has been placed before us for hearing and disposal.

We have heard Shri Rajiv Atma Ram,learned senior counsel for the petitioners and Shri Rajiv Raina,Advocate, for the respondents and C.W.P. No.11998 of 1992 6

with their assistance have also gone through the record of the case.

It may be relevant to notice here that a detailed affidavit dated October 15,2003 was filed by the petitioners annexing therein various orders passed by the Rent Controller, appellate authority as well as this court in the ejectment proceedings taken against the tenant-respondent No.4. The aforesaid orders have already been taken note of in the earlier portion of this judgment.

Shri Rajiv Atma Ram, learned senior counsel appearing for the petitioners has vehemently argued that since eviction of the tenant- respondent No.4 and handing over the vacant possession to the landlords on June 10,1997, the misuser of the premises had since ceased to exist.

According to the learned senior counsel the only ground for resumption of the premises was the misuser and since the aforesaid ground is no more in existence, therefore, the resumption order was liable to be set aside on this ground alone. Learned counsel has also referred to a specific finding recorded by the appellate court, upheld by this court in the revision proceedings and also affirmed by the Apex Court that the landlady had given the house in question to tenant-respondent No.4 for residential purpose only and it was the tenant who had without any authority and consent had started running a school in the premises. On the strength of the aforesaid findings, it has been contended by Shri Rajiv Atma Ram that since the original landlady was not in any manner at fault when the premises in question had been misused by the tenant, therefore, the landlady and consequently the present petitioners cannot be burdened with the responsibility of the aforesaid misuser.

On the other hand, Shri Rajiv Raina,learned counsel appearing for the respondents No.1 to 3 has contended that the property in question had been resumed by the respondents on account of the misuser because of the fact that the same was being used for running a School in the residential premises and,therefore, the order of resumption was wholly justified. However, Shri Raina has also not disputed the fact that the misuser of the property has since ceased with effect from June 10,1997 when the tenant was ordered to be evicted and the actual possession of the property was handed to the landlord. It is also not disputed that the landlords are since using the premises in question for residential purposes for the period of more than 9 years by now. None has chosen to appear on behalf of respondent No.4. It is apparent that after the eviction,respondent No.4 has lost interest in the litigation.

C.W.P. No.11998 of 1992 7

We have duly taken into consideration the rival pleas raised by the learned counsel for the parties.

We find from the record that on June 10, 1997, the possession of the premises in question was handed over to the present petitioners.

Thereafter, concededly the petitioners are using the premises in question for residential purposes only. It is also apparent from the findings recorded by the rent authorities including this court in revision petition that the premises in question had been let out by the landlady to the tenant for purpose of residence only. However, it was the tenant who had started misused the premises by using the same for running a school. The landlady in these circumstances could not be burdened with the responsibility for the aforesaid misuser. The misuser had stopped through a court process. In these circumstances, we are satisfied that the resumption order passed on account of the aforesaid misuser cannot be legally sustained on account of the fact that at no point of time it ever acquiesced in the same.

As a result thereof, we allow this petition and quash resumption order dated December 7,1987. As a result thereof, the appellate and revisional orders dated July 28,1989 and October 25,1989 are also set aside. The site in question shall stand restored to the present petitioners.

( Viney Mittal )

Judge

April 24,2006 ( H.S. Bhalla )

sks Judge


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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