IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. L.P.A. No.1478 of 2011 (O&M) Date of decision: 19.8.2011 Manoj B. Nangia ----Appellant Vs. Chandigarh Administration & others ---Respondents CORAM:- HON'BLE MR. JUSTICE ADARSH KUMAR GOEL ACTING CHIEF JUSTICE HON'BLE MR. JUSTICE RAJESH BINDAL Present:- Mr. Puneet Jindal, Advocate for the appellant. --- ADARSH KUMAR GOEL, ACJ 1. This appeal has been preferred against order of learned Single Judge declining to interfere with the order passed by the revisional authority under the provisions of the Capital of Punjab (Development and Regulations) Act, 1952 and the Capital of Punjab (Development & Regulation) Building Rules, 1952. L.P.A. No.1478 of 2011 2. The Estate Officer issued notice dated 15.7.2005 alleging that the premises were being used illegally by the appellant for a gas agency. After considering the view point put forward in response to the notice, it was held:- I have gone through the case file, it has been an admitted fact that the basement of the building is still used by Capital Gas Agency for office cum sale counter of goods. Thus, the contents of the notice hold good. As per the Architectural planning of “the city beautiful” basement can be utilized for the purposes as mentioned in Rule 28-C of Punjab Capital (Development & Regulation) Rules, 1952. Running of the commercial activity in the basement is violative of the above said rule. In the instant case the lessee have failed to show any document in the form of permission for using the basement for habitable purposes. Therefore, using the basement of an SCO for high intensity trade purposes without a valid permission is certainly covered under the terms “Misuse”. Rule 20-A of the Chandigarh Lease Hold of Sites & Building Rules, 1973 prescribed the procedure in case of misuse of a site or a building. It reads as “When a misuse of a site or building including violation of Section 2, 4, 5, 6 or 12(2) of the Act, or rule 17, is reported or comes to the notice of the Estate Officer then, without prejudice to action taken under Section 8-A of the Act or under rule 20, a notice shall also be served on the lessee(s) and on the occupier(s) of the site or building requiring that the lessee(s) and the occupier(s) shall within a period of one month, remove the said misuse. The lessee and the occupier shall be liable, jointly and 2 L.P.A. No.1478 of 2011 severally to pay such month misuse charges as are notified by the Chandigarh Administration from time to time, for every month or part thereof the misuse occurs.” Accordingly, the lease for the site was cancelled and order of resumption was passed. On appeal, the Chief Administrator upheld the finding of the Estate Officer as under:- “Certainly misuse of premises cannot be allowed at all. In the instant case the allottee has been consistently making efforts to remove the tenant and the misuse which he has failed. Ultimately the Estate Officer had no option but to resume the site. However, the given situation when the misuse has been forcibly closed by the Govt. and finding that there is no direct involvement of the owner in this regard, the order of the Estate Officer to resume the site is set aside. However, the area which was misused shall continue to be sealed till the allottee makes an application and gets approval of the competent authority to use the basement for habitable purpose as per required approval and terms and conditions. However, if the allottee does not want to use the same for habitable purpose, he is free to keep the basement for other prescribed purpose as allowed in the past. As regards to the eviction of tenant that is a separate issue which is to be decided by the civil court. However, it is clarified that the activity of running the gas service centre is a habitable use and cannot be allowed to the present form. The counsel for the tenant appellant has given 3 L.P.A. No.1478 of 2011 an affidavit that he shall not use the premises other than for the storage purposes. On this account the Estate Officer is directed to make an inspection and satisfy that the premises is not being misused for any other purposes other than the storage and then the part of premises which has been sealed will be opened. Forfeiture and misuse charges etc. which are payable under the law shall be paid by the owner within 30 days from the date the same is calculated and communicated to the appellant, failing which the orders of the Estate Officer shall become operational.” The revisional authority also upheld the finding of misuser but remanded the case to the Estate Officer for determining the misuser charges. Operative part of the order of the revisional authority is as under:- “6. After hearing the parties and going through the record, I find that the site in question was being used for the purpose other than specified. Thereafter, the Estate Officer after issuing a show cause notice to the owners as well as occupiers and affording number of opportunities rightly canceled the lease of the site vide order dated 4.10.2006. The petitioners- owners as well as tenants filed an appeal before the Chief Administrator and the Chief Administrator accepted the appeal subject to the condition that the forfeiture and misuse charges etc. shall be paid by the petitioners-owners within 30 days. The counsel for the petitioners-owners submitted that as per para 5 of the lease deed executed between owners and 4 L.P.A. No.1478 of 2011 tenants, it is clearly mentioned that the lessee shall use the premises as permitted by the Building Rules of Chandigarh Administration, misuse if any, if objected to by the Chandigarh Administration will be stopped by the lessees there and then failing which the lesser will get right to seek eviction of the lessees on this ground alone. The petitioners-owners have also taken effective steps to stop the misuse from the premises by filing eviction proceedings against the erring tenants. As per Rule 20-A(1) Explanation “Where it is determined by the Estate Officer that the misuse is on the part of occupier, charges shall be recoverable in the first instance from the occupier”. In my opinion, it is a fit case to remand to the Estate Officer to decide the case afresh in terms of Rule 20- A of the Act. He is directed to work out the misuse charges afresh in accordance with law after hearing the parties.” On a writ petition filed in this Court, learned Single Judge did not find any ground to interfere. The plea that there was no misuse was rejected. It was also held that even if owner agreed to lease out the premises, there could be no estoppel against the State to take action as per statutory provisions. 3. We have heard learned counsel for the appellant. 4. Learned counsel for the appellant submitted that the appellant is using the premises as a godown, in which no public dealing was taking place and that the appellant was not given hearing by the Estate Officer and thus, the appellant is entitled 5 L.P.A. No.1478 of 2011 to an opportunity to show that the use of premises as godown was permissible. 5. We are unable to accept the submission. The order of the Estate Officer specifically states that the owner as well as the occupier were served notice. The Estate Officer inspected the premises. Moreover, the appellant appeared before the appellate authority through counsel and his view point was duly considered and plea of the appellant was rejected on merits. Again, the revisional authority considered the view point of the appellant on merits. There is, thus, no prejudice to the appellant as far as principles of natural justice are concerned. On merits, there is concurrent finding of fact recorded by the three authorities holding that use of premises was not in accordance with statutory rules prohibiting commercial activity in the basement. We are unable to hold that use of premises is not for commercial purposes. Learned counsel for the appellant relied upon judgment of this Court in M/s Ram Gopal Banarasi Dass v. Satish Kumar 1985(2) PLR 457 dealing with the issue of change of user as a ground for eviction under the provisions of the Rent Act. The judgment is distinguishable as the present case is not concerned merely with eviction under the Rent Act proceedings but with the enforcement of regulatory provisions dealing with the user of premises. 6. We, thus, do not find any ground to interfere with the view taken by learned Single Judge. 6 L.P.A. No.1478 of 2011 The appeal is dismissed. (ADARSH KUMAR GOEL) ACTING CHIEF JUSTICE August 19, 2011 ( RAJESH BINDAL ) ashwani JUDGE 7