JUDGMENT
Ashutosh Mohunta, J.
1. This petition under Article 226/227 of the Constitution of India has been filed for issuance of a writ in the nature of mandamus directing respondent Nos. 1 and 2 to restore site No. 97-P, Sector 18-B, Chandigarh, to the petitioner by quashing the order dated March 25, 1992 passed by the Adviser to the Administrator, Union Territory, Chandigarh, a copy of which has been annexed here-with as Annexure P-1.
2. Brig. Joginder Singh Punia (deceased), father of the petitioner, was allotted site No. 97P, Sector 18-B, Chandigarh over which he constructed residential H. No. 502, Sector 18-B, Chandigarh. As Brig. Joginder Singh Punia was serving in the Army and he did not require the building for his personal use and occupation he let out the same to Gurdial Sing Virk (respondent No. 3) for residential purposes in June 1981 by executing a lease deed. Thereafter, respondent No. 3 sublet the building to one Naresh Kumar (respondent No. 4), who changed the user thereof and started running a Guest House in the said building. Brig. Joginder Singh Punia was murdered on May 30, 1988 and his son Capt. Gurmeet Singh Punia (present petitioner) became his successor on the basis of a will dated August 10, 1970. The petitioner started ejectment proceedings against respondent Nos.3 & 4 under Section 13 of the East Punjab Urban Rent Restriction Act, 1949, on the ground of subletting and change of user. The ejectment petition filed by the petitioner was allowed by the Rent Controller. Respondent Nos.3 and 4 contested the ejectment order upto the High Court. However, they could not be successful in getting the ejectment order quashed.
3. However, in the meantime, the resumption proceedings were undertaken by the Chandigarh Administration against the petitioner on the ground of change of user. The Estate Officer vide order dated August 11, 1983 ordered the resumption of the site in question and further forfeited 10% of the price of the plot. i.e., Rs.660/- plus interest, under Section 8-A of the Capital of Punjab (Development & Regulation) Act, 1952. A copy of the said order is at Annexure P4 with this petition. Against the order passed by the Estate Officer, the petitioner filed an appeal, which was dismissed by the Chief Administration vide order dated February 27, 1990 (Annexure P7). Ultimately, the petitioner filed a revision petition before the Adviser to the Administrator, Chandigarh, who vide order dated March 25, 1992 (Annexure P1) set aside the order of resumption and restored the site in question to the petitioner subject to the condition that the violation, if any, be removed before April 30, 1992, However, the amount forfeited by the Estate Officer was kept intact. It is against the order dated March 25, 1992 passed by the Adviser (Annexure P1) that the petitioner has filed the present writ petition.
4. It has been contended by the learned counsel for the petitioner that the change of user, if any, was not within the control of the petitioner. The petitioner had shown his sincerity in filing ejectment petition against respondent Nos.3 and 4 on the ground of change of user. The ejectment order was allegedly passed by the Rent Controller on July 25, 1998 against respondent No. 4. Ultimately, the petitioner had to file the revision petition in the High Court, which was allowed and the executing court was directed to put in operation the order dated July 25, 1998 passed by the Rent Controller. The counsel has also placed reliance on a Division Bench authority of this Court reported as M/s Naresh Departmental Chandigarh v. The Chandigarh Administration and Ors. (2001-1)127 P.L.R. 314, it has also been contended by the learned counsel for the petitioner that the misuse of the premises in dispute as guest house does not exist any more. On the basis of these contentions, the petitioner has prayed that the order dated March 25, 1992 passed by the Adviser to the Administrator (Annexure PI) be quashed and the possession of the premises in dispute be restored to the petitioner.
5. In support of the resumption order and in order to controvert the contentions raised on behalf of the petitioner, the counsel appearing on behalf of the Chandigarh Administration has placed reliance on a Division Bench judgment of this Court reported as Simareet Kaur v. Chandigarh Administration, (1999-2)122 P.L.R. 609, wherein the resumption order was held valid and the petitioner was directed to make an application for re-allotment of the site in dispute.
6. After hearing the learned counsel for the parties and on going through the case file, I am of the view that the violation in the premises with regard to change of user was not within the control of the petitioner. It is not disputed that as and when the petitioner came to know about the running of a guest house in the premises in dispute by respondent No. 4, the petitioner filed ejectment petition against the tenant as well as the sub-tenant on the ground of change of user. The ejectment petition filed by the petitioner was allowed by the Rent Controller. Against the ejectment order dated July 25, 1998, respondent No. 4 filed objections under Order 21 Rule 97, CPC. On the objections filed by respondent No. 4, the trial Court stayed the execution proceedings. Ultimately, the petitioner had to move this Court for getting the tenants evicted from the demised premises. Even this Court allowed the revision petition and restored the order of ejectment passed by the Rent Controller. It shows that sincerity on the part of the petitioner in getting the alleged violation in the premises removed. It has been held by a Division Bench of this Court in M/s Naresh Departmental’s case (supra) as under: –
“The order of resumption is an extreme penalty. It should be normally awarded in the rarest of the rate cases. In a case where the landlord is not to blame, it would be unfair to impose the extreme penalty against him. This would be all the more so where the erring tenant persists in default despite all the possible efforts on the part of the landlord.
As already mentioned above, in the present case the petitioner cannot be held responsible for the change of use in any manner. In fact, irked by defaults committed by the tenant and sub-tenant, the petitioner launched ejectment proceedings against them on the ground of change of user. The action taken by the petitioner for the ejectment of the tenant and sub-tenant, i.e., respondent Nos. 3 and 4, would show that the petitioner cannot be put to blame for the change of user at all. The facts of Simarjeet Kaur’s case (supra) are quite different from the facts appearing in the present case. In Simarjeet Kaur ‘s case (supra) the landlord had not taken any action for the ejectment of the tenant on the ground of change of user at all. The landlady therein could not prove that the change of the user was beyond her control and without her consent. However, in the present case this is not the position.
7. In the light of the above discussion, I allow the writ petition and set aside the impugned order dated March 25, 1992 (Annexure P-l). It is directed the site in question be restored to the petitioner expeditiously, preferably within one month from today.It is further held that whatever amount the Chandigarh Administration is to recover for the violation of the conditions of allotment of the site to the petitioner, it should recover form the sub-tenant i.e., respondent No. 4, as the petitioner cannot be blamed for the alleged violation in the demised premises.