CHANDER PARKASH Vs. VED PARKASH

JUDGEMENT

(1.) PETITIONER's father owned House No. 50 Sector 10-A, Chandigarh, measuring 500 sq yards which property was inherited by the sons and daughters of the deceased. The respondents filed a suit for partition of the property and is that suit a preliminary decree dated 30-9-1988 was passed by the Additional Senior Sub Judge, Chandigarh. On appeal against the aforesaid preliminary judgment and decree, passed by the trial Court, District Judge, modified the findings of the trial Court on issues No. 1, 2, 3 and 4 on 1-9-1984.

(2.) THE proceedings for passing of the final decree were taken up by the Subordinate Judge. The Subordinate Judge appointed Shri R. S. Walia, Advocate, as Local Commissioner to suggest the mode of partition. The Local Commissioner submitted his report dated 7-2-1989. Against the report submitted by the Local Commissioner, petitioner Chander Parkash submitted objections. The Subordinate Judge vide his order dated 31-7-1989 rejected the objections. The Subordinate Judge recorded a finding that according to the report of the Local Commissioner, the property in dispute cannot be partitioned by metes and bounds. The Court also came to the conclusion that according to the rules framed by the Union Territory, Chandigarh Administration, it is not permissible to partition the property by metes and bounds. The petitioner filed review petition before the Subordinate Judge for review of the order dated 31-7-1989 which was dismissed by order dated 31-7-1989.

(3.) NOW the petitioner has come up in this revision petition in this Court. The counsel for the petitioner submitted that the Subordinate Judge was in error in holding that the property in dispute cannot be partitioned. He submitted that the house in dispute can be partitioned by meets and bounds. With the permission of the Court, he amended the grounds of revision. By way of amendment, he challenged Rule A of the Chandigarh (Sales of Site and Buildings) Rules I960, which prohibits fragmentation. of any property in Chandigarh. He pleaded that the aforesaid Rule is arbitrary, unreasonable and capricious and so far as it prohibits the partition of the property in Chandigarh. The rule it is submitted is violative of Article 14 of the Constitution. It is farther submitted that the rule making power has been conferred on the Government under Section 22 of the Capital of Punjab (Development and Regulation) Act, 19. 52. It is submitted that the Act has been enacted to vest in the State Government the legal Authority to regulate the sale of buildings, sites and to frame building rules on the pattern of municipal bye laws and for the planned development of the city. It further submitted that there is no provision in the Act to prohibit the partition of the property by metes and bounds. It is submitted that rule making power of the State Government end in so far as it prohibits the partition of the property in the city by metes and bounds. It was contended by the counsel for the petitioner that the aforesaid rule is ultra vires because it is beyond the powers of the rule making power of the State Government.