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TMI Blog2012 (2) TMI 714X X X X Extracts X X X X X X X X Extracts X X X X ..... ort the Act ) alleging misuse of the premises owned by the petitioners. It is alleged in the notices that the sites have been allotted to the petitioner for use as Shop-cum-Flats (SCFs), whereas the petitioners have started running the first and second floor of such building for guest houses/lodges, which is not permissible. It is the stand of the administration that until and unless the petitioners seek firstly conversion of the first and second floor portion for use as for the office purposes and secondly to seek permission to use the office portion for commercial purpose i.e. for tourist lodges and guest houses, the petitioners are violating the provisions of the Act and the building is liable to be resumed. The petitioners have alleged that the Notified Area Committee for the area of Manimajra, within the territorial area of Chandigarh was constituted under the provisions of the Punjab Municipal Act, 1911 (for short the Municipal Act ). Such Committee allotted sites in the year 1978 to the petitioners. The petitioner in CWP No.9029 of 2009 was allotted Shopcum-Flat (SCF) site No.304, petitioner in CWP No.9030 of 2009 was allotted Shop-cum-Flat (SCF) site No.305, whereas th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... overned by the provisions of the Municipal Act including the subsequent extension of the Punjab Municipal Corporation Act, 1976 to Chandigarh vide notification dated 27 th July, 1994 issued in terms of the Punjab Municipal Corporation Law (Extension to Chandigarh) Act, 1994 (Act No.45 of 1994) (for short the Municipal Corporation Act ). The said notification reads as under: No.4628 UTFI(4)-94/10249 - In exercise of the powers conferred by subsection (1) of Section 3 of the Punjab Municipal Corporation Act, 1976 as extended by the Punjab Municipal Corporation Law (Extension to Chandigarh) Ordinance, 1994, the Administrator, Union Territory, Chandigarh, is pleased to specify the area mentioned in the Schedule to be the Municipal Area of the Corporation of the Chandigarh. SCHEDULE 1. City of Chandigarh comprising the area of the site of the Capital of Punjab as notified by the Government of Punjab before the 1 st November, 1966 and such other area as notified by the Administrator, Union Territory, Chandigarh, thereafter. 2. Notified Area Committee, Manimajra: East: - Starting from South-Eastern corner of Khasra No.126/12 of Village Manimajra along the common boundary l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Banerjee Vs. State of Madhya Pradesh etc. AIR 1971 SC 517 and on Ahmedabad Urban Development Authority Vs. Sharadkumar Jay Antikumar Pasawalla and others (1992) 3 SCC 285. It is also argued that in response to information sought under Right to Information Act, 2005, the petitioners have been informed that the conversion charges are transferred to the Consolidated Fund of India. Once the charges are transferred to the said fund, therefore, the levy is in the nature of tax and such levy cannot be left to be determined to subordinate legislation. Even if, it is treated to be fee, the element of quid pro con is not satisfied, as admittedly the respondents are not even suggesting to provide any services in lieu of levy of conversion charges. On the other hand, learned counsel for the respondents has argued that the land over which motor market has been developed was forming part of Notified Area Committee of Manimajra after its acquisition for a public purpose under the Land Acquisition Act, 1894. The allotments were made by Notified Area Committee specifying the purpose for the use of the building. The building plans have been sanctioned specifying the ground floor to be used for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... age Hadbast No. xxx xxx xxx In view of the above notification, the area of the motor market of the notified area committee is also now governed by the provisions of the Act. It is pointed out that the Act was enacted on the lines of the Municipal Bye-Laws so long as properly constituted local body does not take over the administration of city, as mentioned in the Objects of such enactment. Therefore, while extending the provisions of the Act, the provisions in contained in Sections 226 to 275 appearing in Chapter XIII; Sections 286 to 312 appearing in Chapter XV pertaining to Sanitation and Public Health and Sections 343 to 346 appearing in Chapter XVIII of Markets, SlaughterHouses, Trades and Occupations particularly dealing with the user of the premises were omitted in its application to the Chandigarh. The Municipal Corporation Act also incorporated Section 424A, whereby the provisions of the Act were applied to the entire area of Chandigarh. The relevant statutory provisions of the Act and the Municipal Corporation Act read as under: Capital of Punjab (Development and Regulation) Act, 1952 1. Short, title, extent and commencement. (1) This Act may be called the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n erection of buildings. 5. Bar to erection of buildings in contravention of building rules (1) No person shall erect or occupy any building at Chandigarh in contravention of any building rules made under sub-section (2). (2) The Central Government may, by notification in the official Gazette, make rules to regulate the erection of buildings and such rules may provide for all or any of the following matters, namely:- xxx xxx xxx (f) the minimum dimensions of rooms, intended for use as living rooms, sleeping rooms, or rooms for the use of cattle; (g) the ventilation of' rooms, the position and dimensions of' rooms, or projections beyond the outer faces of external walls of a building and of doors or windows; (h) any other matter in furtherance of the proper regulation of erection, completion and occupation of buildings; 7. Levy of fee or tax for amenities (1) For the. purpose of providing maintaining or continuing any amenity at Chandigarh the Central Government may levy such fees or taxes as it may consider necessary (which shall be in addition to any fee or tax for the time being leviable under any other law) in respect of any site or building o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Govermnent may, by notification in the official Gazette, make rules for carrying out the purposes of this Act. (2) In particular, and without prejudice to the generality of the foregoing powers, such rules may provide for all or any of the following matters, namely:- (a) the terms and conditions on which any land or building may be transferred by the Central Government under this Act; (b) the manner in which consideration money for any transfer may be paid; (c) the rate of interest payable, and the procedure for payment of instalments, interest, fees, rents or other dues payable under this Act; (d) the terms and conditions under which the transfer of any right in any sit or building may be permitted; (e) erection of any building or the use of any site; (f) levy of fees or taxes under section 7; (g) the terms and conditions for the breach of which any site or building may be resumed; (h) the conditions with regard to the buildings to be erected on sites transferred under this Act ; (i) the form of notice and the manner in which notices may be served; (j) the form and manner in which appeals and application under this Act may be filed and the court fe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion Act have been enacted to achieve distinct purpose. It is pointed out that the question of applicability of the Act; Municipal Act and the Punjab New Capital (Periphery) Control Act, 1952 was examined by this Court in a judgment rendered in CWP No.16970 of 2007 titled Paramjeet Singh Rai Vs. Union Territory, Chandigarh and others decided on 04.03.2010, wherein one of us (Hemant Gupta, J.) was a member. Therefore, the Act and the Municipal CorporationAct can co-exist over the area in question. Under the Act, the Administration is competent to levy conversion and user charges as part of the terms of sale under Sections 4 5 of the Act. We have heard learned counsel for the parties at length. We find that the following questions arise for our consideration: 1. Whether the provisions of Capital of Punjab (Development Regulation) Act, 1952 are applicable to the area of motor market of the notified area committee consequent to the notification dated 27.7.1994? 2. Whether the conversion charges claimed by the Administration to permit the change of user of the flat (residential) portion to office is a part of terms of sale or lease under Section 3 or its user under Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r planning or development of Chandigarh in respect of any site or building either generally for the whole of Chandigarh or for any particular locality thereof. Section 4(f) of the Act deals with restrictions regarding the use of site for purposes other than erection of buildings. Whereas, Section 5 of the Act prohibits the erection or occupation of any building constructed in contravention of Building Rules contemplated to be provided under sub-Section (2). Under sub-section (2), the Building Rules have been framed. The Building Rules defines building to mean any construction or part of construction in Chandigarh, transferred by the Central Government under Section 3 of the Act, intended to be used for residential, commercial, industrial or other purposes. The 'class of buildings' has been defined in Rule 2(xv) of Building Rules to mean residential building, commercial building, warehouse and industrial building or public building. The 'commercial building' has been defined in clause 2(xvi) to mean a building used or constructed or adapted to be used wholly or principally for shops, offices, banks or other similar purposes or for industries other than factories and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and B of the Schedule II, annexed to these rules and shall include any other trade which is not so mentioned provided that such other trade is similar to and carried on in the same fashion as mentioned in the respective part of these Schedules; Provided that the Chief Administrator, may, in the case of residential buildings, for reasons to be recorded in writing and with the prior approval of the Administrator, Union Territory, Chandigarh, allow such a building or portion thereof to be used for a purpose other than that for which the site was allotted subject to such conditions as he may by an order specify in this behalf: Provided further that trades shall be classified in two categories as indicated in Schedule (II) annexed to these rules and conversion from a particular trade in Schedule 'I' to that in Schedule 'II' shall be allowed on payment of conversion charges as determined by the Chandigarh Administrator. Similar provisions exist in the Lease Hold of Sites and Building Rules, 1973, as contained in Rule 17. Such rules are pari materia to 1960 Rules. Therefore, the same are not reproduced for the sake of brevity. In terms of Section 3 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the purpose of use as commercial or for the purpose of office, does not deal with any amenity. The condition of use of any site or building for a specific purpose is not an amenity as defined under the Act. Therefore, the amenities within the scope of Section 7 of the Act, does not include the charges for the allowing the change of use from residential to commercial and as commercial for the use of tourist lodge etc. Learned counsel for the petitioners referred to the various judgments to contend that the conversion fee claimed from the petitioners is an amenity under Section 7 without any guideline or limitation. Thus, it is a case of excessive delegated legislation. Reliance is placed upon M/s Devi Das Gopal Krishnan etc. (supra) wherein uncontrolled power given to the provincial Government to levy tax in the absence of any guidelines was found to be ultra vires. It was observed as under: 16. Under Section 5 of the Punjab General Sales Tax Act, 1948, as it originally stood, an uncontrolled power was conferred on the provincial government to levy every year on the taxable turnover of a dealer a tax at such rates as the said Government might direct. Under that section, th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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