Judgment:
Kanwaljit Singh Ahluwalia, J.
1. The present writ petition has been filed seeking quashing of order dated 2.4.2002 (Annexure P3) passed by Additional Commissioner, Municipal Corporation, Chandigarh, whereby allotment of Transit Site No. 1366, Rehabilitation Colony, Mauli Jagran, Chandigarh, allotted to the petitioner was cancelled and licence was revoked. For quashing the order, petitioner prayed that this Court should issue writ of certiorari.
2. Undisputed facts are that the petitioner was allotted Transit Site No. 1366, Rehabilitation Colony, Mauli Jagran, Chandigarh, in terms of the Licence of Transit Sites and Services in Chandigarh Scheme, 1979 (hereinafter referred to as 'Scheme 1979'). This Scheme was envisaged to rehabilitate economically weaker section of society who were slum dwellers and had occupied unauthorized land of the Government where they had raised Jhuggies. The Chandigarh Administration thought that all Jhuggi dwellers can be rehabilitated and in terms thereof, petitioner was allotted Transit Site No. 1366. A letter of allotment (Annexure P1) was issued on 19.12.1998. Clause 3 of the allotment letter read as under:
3. The superstructure on the site shall be constructed within a period of nine months from the date of allotment. In case the construction is not competed within the said period of nine months, the competent authority may grant an extension of three months on the payment of fee of Rs. 500/- per month.
3. On 14.2.2002 a Show Cause Notice (Annexure P2) was issued to the petitioner. In the Show Cause Notice, it was stated that petitioner had not complied with Clause 3 of the allotment letter, therefore, his allotment is required to be cancelled and licence to be revoked. In pursuance of the Show Cause Notice, petitioner appeared and the impugned order (Annexure P3) was passed on 2.4.2002. In the impugned order, it was noticed that petitioner has complied with Clause 3 and had raised the building but had constructed cantilever of 10'x3' which is unauthorized. For removal of cantilever, adjournment was granted and a report of Building Inspector was called. Petitioner had not removed cantilever, therefore, allotment was cancelled and licence was revoked. The following portion of the impugned order read as under:
The licensee appeared before the undersigned on 14.03.2002 and made a submission that he has constructed the building in accordance with the approved building plan. But the report of the Building Inspector dated 14.03.2002 shows that unauthorized cantilever of size 10'0' x 3'0' has been constructed. The licensee requested for fifteen days time to remove the unauthorized cantilever and the case was adjourned to 02.04.2002. The report of the Building Inspector was also summoned. On 02.04.2002 the licensee did not appear before the undersigned. As per latest report of Building Inspector dated 02.04.2002 that the unauthorized cantilever is still existing.
4. Counsel for the petitioner has stated that cantilever has now been removed. To fortify his submission, he has relied upon photographs (Annexures P10 & P11). Counsel further states that this fact has also been noticed by the Appellate Authority. Counsel for the petitioner relied upon a judgment of this Court rendered in K.N.T. Nair v. Chandigarh Administration (2002) 132 P.L.R. 692 to say that order of cancellation of allotment and revocation of the licence could not be passed contrary to the Show Cause Notice given. He has submitted that in the Show Cause Notice, he was called upon to make the construction whereas vide impugned order, licence has been revoked and allotment was cancelled on the ground that petitioner has constructed a cantilever. In para 5 of the judgment rendered in K.N.T. Nair's case (supra), it has been held as under:
I have considered the contention of the rival parties. The very purpose of issuing show cause notice is to ensure that the defaulting party has notice of the basis on which action is contemplated against him. This is one of the essential procedural requirements of the rules of natural justice. It is, thus, evident that one of the cardinal principles of rules of natural justice has not been followed.
5. Counsel for the petitioner has further relied upon a Division Bench judgment of this Court-rendered in S. Harnam Singh v. Union Territory of Chd. through the Estate Officer, Chandigarh 2 (1994-2)107 Punjab Law Reporter 481. Para 5 of the said judgment read as under:
Adverting to the second ground of challenge it is manifest from the perusal of the order of the Advisor Annexure P.3 that resumption has been upheld on the ground that a school was being run in the house. The was precisely not the ground mentioned in the show cause notice. The Advisor Union Territory, Chandigarh had no jurisdiction to record a finding on the point which did not figure in the show cause notice. In other words, it can safely be observed that the order of resumption cannot be upheld on the ground regarding which no opportunity was afforded to the owner and the occupier of the demised premises. Since the two orders of resumption deserve to be quashed on the aforementioned reasoning, the other grounds need not be gone into by this Court particularly when, as has been noticed above, the respondents did not file any return.
6. This view has been further reiterated in another judgment rendered by a Division Bench of this Court in Bhajan Singh and Sons (HUF) v. Chandigarh Administration : (1997-3) 117 P.L.R. 521. Para 19 of the judgment read as under:
We also find merit in the argument of the learned Counsel for the petitioners that the revisional order is vitiated due to consideration of extraneous grounds. Learned Counsel submitted that the notice issued by the Assistant Estate Officer was confined to the allegation of misuse qua International Polytechnic for Women and Girls Hostel and it did not contain the allegation that the premises were being misused by running a restaurant, STD Pay Phone, Photostat Service and Cold Drinks. Learned Counsel for the administration could not satisfy us as to how new ground could be used by the revisional authority for rejecting the revision petition filed by Bhajan Singh and sons and Ors. Before creating new grounds for justifying the cancellation of the lease, the revisional authority should have given notice of the same to the petitioners. Admittedly, this has not been done. Therefore, we hold that the order passed by the Adviser is illegal and it is liable to be quashed.
7.The matter does not end here. The Appellate Authority found another ground to uphold the cancellation of allotment and revocation of the licence. It noticed that cantilever which has been constructed though has been removed but the site has been transferred to some other person. For this, the admission of petitioner was recorded. The order of the Appellate Authority read as under:
The ld. Counsel for the appellant states that the violations have been removed and has requested to restore the site. The Law Officer appearing on behalf of the Commissioner Municipal Corporation, Chandigarh, states that as per report of the building inspector the appellant is not residing in the transit site. Moreover, he has sold the site to another person who resides in the transit site No. 1366, Mauli Jagran, UT Chandigarh. As per terms and conditions of the allotment letter the transit site cannot be sold to any one because the site was allotted to the appellant on lease hold basis for five years. The licence cannot be transferred in the name of the other person. Shri Mewa Singh appellant admitted that he is not residing in the transit site No. 1366, Rehabilitation Colony, Mauli Jagran as the same has been sold by him. I heard both the parties and gone through the record placed on the file. The tenement site has been allotted on licence hold basis for five years to the appellant. As per terms and conditions of the allotment letter, licensee cannot sell the property to anyone. Shri Mewa Singh has admitted that he has sold the transit site. Hence, he has violated the terms and conditions of allotment and therefore, there is no ground to accept the appeal. The same is dismissed.
Announced. Parties be communicated.
8. Counsel for the petitioner submits that petitioner is an illiterate person who is a labourer and being a slum dweller could not understand what was asked and wrongly his admission was recorded, therefore, aggrieved against the same, he has filed the revision petition. Counsel further submits that petitioner has not sold the tenement. To controvert this argument, Mr. Sanjiv Ghai, Advocate, has stated that Clause 5 of the allotment letter specifically states that licensee shall not sublet, assign or otherwise part with possession of the transit site or any part thereof in favour of any person whatsoever. Counsel further submits that para 25 of the Scheme 1979 is also to the same effect.
9. There is no quarrel with the arguments advanced by Mr. Ghai but the principles of natural justice and the observations of the judgments cited above required, that the petitioner ought to be put to the notice that he has sold the premises so that he is able to defend this charge. The Appellate Authority, on a stray admission of a person who is illiterate, cannot proceed to order cancellation on the ground which was not noticed in the Show Cause Notice and in the impugned order, which was under challenge before the Appellate Authority. Accordingly, all the impugned orders are set aside. Liberty is granted to respondent-Municipal Corporation to proceed against the petitioner by issuing a Show Cause Notice that he has acted in violation of Clause 5 of the allotment letter and para 24 of the Scheme 1979,
10. With these observations, the present writ petition is disposed of.