CIVIL WRIT PETITION NO.6671 OF 2011 :{ 1 }: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: APRIL 20 ,2011 Manoj B.Nangia .....Petitioner VERSUS Chandigarh Administration, U.T., Chandigarh and others ....Respondents CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH PRESENT: Mr. Puneet Kumar Jindal, Advocate, for the petitioner. Mr. Sandeep Vermani, Advocate, for the Caveator. **** RANJIT SINGH, J. Being aggrieved against the order passed by the Advisor to the Administrator, Union Territory, Chandigarh, remanding the case of the petitioner to the Estate Officer to decide the same afresh and to work out misuse charges in accordance with law, the petitioner has filed the present writ petition. The petitioner is running a gas agency business by the name of M/s Capital Gas Corporation and had taken on rent ground floor of SCO 88-89, Sector 8-C, Chandigarh, from respondent Nos.4 and 5. The petitioner had shifted to portion of the basement and CIVIL WRIT PETITION NO.6671 OF 2011 :{ 2 }: on the asking of the landlord, vacated the ground floor on 8.5.2003. The petitioner avers that it was well within the knowledge of respondent-landlord that the basement was being used for booking a cooking gas, which would be permissible under Rules 28 (C) and 28 (D) of the Punjab Capital (Development and Regulations), Rules 1952 (for short, “1952 Rules). Due to increase in rental value, the landlord purely with malafide intention to evict the petitioner from the premises is alleged to have obtained a resumption order at the back of the petitioner on the ground of misuse of basement without even issuance of any mandatory notice under Rule 20 (A) of 1952 Rules. A statement was made on behalf of respondent Nos.4 and 5 that the Capital Gas Agency was using the basement for office-cum-sale counter and upon this admission, the Estate Officer observed that use of the basement amounted to violation of Rule 28-(C) of the 1952 Rules. This was taken to be a commercial activity as it was being used for habitable purpose. The petitioner complains that if he had been issued with notice, he would have clarified that there is no misuse and the premises in the basement were being used only as a godown for accessories and thus, the activities which are being carried out would not constitute a ban as envisaged under Rule 28 (C) of 1952 Rules. The petitioner accordingly had filed an appeal against the order of resumption. In the meantime, another notification has been issued on 6.10.2008, allowing use of basement for habitable purposes (without toilet, kitchen or any other hazardous activity) provided it met other requirements of Building Rules. It is further provided that these need CIVIL WRIT PETITION NO.6671 OF 2011 :{ 3 }: the requirement of circulation, safety, air circulation, ventilation, light and requirement of two separate staircase. Still, the appellate authority has sealed the part of building for which the petitioner had to approach this Court through Civil Writ Petition No.9300 of 2009, which was disposed of vide order dated 15.7.2009, with a direction to dispose of the appeal. The Appellate Authority has noticed that the basement can be permitted for habitable purposes, for which the landlord has not obtained specific permission from the Estate Office. The petitioner thereafter filed a revision, which has been decided on 19.8.2010 and the petitioner, therefore, has filed the present writ petition. As already noticed, through the impugned order, the case has been remanded. The petitioner claims that he understood this order to be such where the Estate Officer will hear the entire dispute in regard to misuse. On being advised, he has now challenged the order through the present writ petition with some delay, the impugned order being dated 19.8.2010. The first ground of attack is that the Advisor, though had noticed the contention raised on behalf of the petitioner, but has not dealt with the same. The plea raised by the petitioner is that he is using the basement in accordance with Rule 28 (D)(iii) of 1952 Rules. The petitioner, thus, pleads that there is no misuse of the site. His grievance that the Estate Officer acted in haste in relying upon the admission/concession made by the owner to order resumption would show connivance. It was pressed to say that misuse was CIVIL WRIT PETITION NO.6671 OF 2011 :{ 4 }: wrongly so observed. As per the counsel, having noticed these submissions, the Advisor did not deal with the same and, thus, order would be rendered bad on this count. In the impugned order, it is clearly noticed that the Advisor has found that the site in question was being used for the purpose other than specified. It is also noticed that the Estate Officer, after issuing show cause notice to the owner as well as to the occupier, had afforded number of opportunities and, thus, had cancelled the lease of the site on 4.10.2006. The owner as well as tenant had filed appeals. The appeal was accepted subject to the condition that forfeiture and misuse charge shall be paid by the owner within 30 days. The owner had then relied upon Para 5 of the lease deed executed between him and petitioner-tenant, which was to the effect that lessee shall use the premises as permitted by Building Rules of the Chandigarh Administration and that misuse, if any, if objected to by the Chandigarh Administration, will be stopped by the lessee there and then, failing which the lessor would get right to seek eviction of the lessee on this ground alone. It is on this ground that owner had taken step to stop the misuse by filing eviction proceedings against the tenant. It is accordingly held by the Estate Officer that misuse is on the part of occupier and the charges shall be recovered, in the first instance, from the occupier. On this basis, the Advisor had remanded the case back to the Estate Officer to decide it afresh and to work out the misuse charges in accordance with law after hearing the parties. CIVIL WRIT PETITION NO.6671 OF 2011 :{ 5 }: The petitioner really can not complain either of denial of opportunity or any connivance on the part of landlord with the Estate Officer etc. The petitioner apparently is not justified in urging that there is no misuse in view of the provisions of Rules 28 (C) and 28 (D) of 1952 Rules. The basement of SCO may have been permitted for habitable commercial use but this has to be only if permission as provided for in this regard is obtained. There is nothing on record to indicate that any such permission was ever obtained. In the absence of permission, the petitioner is not justified in pleading that use of the basement could be made for commercial habitable purpose. The plea of the petitioner to equate his activity with that of Bank Cellars is not justified. The petitioner otherwise also can not get out of the conditions in the lease deed, which was duly registered with the Sub Registrar. This is to the effect that lessee shall use the premises as permitted by Building Rules of Chandigarh Administration. The misuse, if any, if objected to by the Chandigarh Administration will be stopped by the lessee, failing which the lessor would get right to seek his eviction. That is what appears to have happened. The petitioner, thus, must stop the misuse. No valid ground, therefore, is made out to interfere in the impugned order, which is only of remand order, requiring the Estate Officer only to re- assess the misuse charges. It is not a fit case for interference. The writ petition is accordingly dismissed. April 20,2011 (RANJIT SINGH ) khurmi JUDGE