MAYA DEVI Vs. CHANDIGARH ADMINISTRATION

JUDGEMENT

(1.) THIS writ petition has been filed under Articles 226 and 227 of the Constitution of india praying that the respondents Nos. 1 and 2 be restrained for permitting respondent No. 3 to change the use of a shop and from permitting respondent No. 4 to run a halwai shop therein, i. e. Shop No. 18, Sector 11-D.

(2.) THE facts as given in the petition are that the petitioners Nos. 1 and 2 are the owners of Shop No. 1 situated in Sector 11-D, whereas the petitioner No. 3 and shrimati Giatri Devi are the owners of Shop No. 36. In Shop No. 1, the petitioners nos. 1 and 2 have been carrying on the business of halwai; and in Shop No. 36, the petitioner No. 3 has been running a restaurant since 1960 and 1965 respectively. The Capital of Punjab (Development and Regulation) Act, 1952 (hereinafter referred to as the 'act') and the Rules framed thereunder provide for the systematic planning and development of the various sectors of Chandigarh. The Administration prepared a Master Plan for the entire city of Chandigarh and in conformity with that, zoning plans were prepared by respondent No. 2 to provide for sectorwise planning. The Zoning Plan was prepared and the layout was drawn for Sector 11 on May 19, 1958 by the authorities. The layout prepared under the zoning Plan is in the nature of a representation made to the citizens to enable them to decide about the purchase of plots for business in any particular locality by stating therein the nature of business for which they had been earmarked. In the Zoning Plan of Sector 11, it is provided that market shall be established in part 11-D and in that market there shall be two shops, one for halwai and the other for restaurant, both situated on either end of Sector 11-D and bearing Nos. 1 and 36. The petitioners Nos. 1 and 2 and the grandfather of petitioner No. 3 purchased the shops mentioned above on the representations made in the Zoning Plan and started their business therein. The main attraction for them was that there would be only one halwai shop and one restaurant. In the second week of January, 1973, shop No. 18 which had been earmarked for general merchandise in the Zoning and the layout plans, was being re-erected for the purpose of being used as halwai shop by the respondents. The petitioners, on enquiry, came to know that the authorities had orally permitted the respondents Nos. 3 and 4 to make reconstruction of their shop for the said purpose. The order of the respondents Nos. 1 and 2 in allowing the change of the user of the shop is illegal and without jurisdiction. The action of the respondents is neither bona fide nor in the conformity with the sound judicial principles. The order has not been passed in conformity with rules of natural justice. The petitioners have therefore, prayed that the aforesaid order be quashed. The petition has been contested by the respondents. Two returns have been filed, one by respondents Nos. 1 and 2 and the other by respondents Nos. 3 and 4. Inter alia, it is pleaded by respondents nos. 1 and 2 that Zoning Plan is prepared by the Architect's Department of chandigarh Administration and not by respondent No. 2. The Zoning Plan has been defined under the Punjab Capital (Development and Regulation) Building Rules, 1952 (hereinafter referred to as the 'rules') and under Rule 3, the person who wants to erect any building, has to comply with the restrictions shown in the zoning Plan. In the Zoning Plan of Sector 11, no such restrictions have been provided as to the use of a particular shop for a particular purpose. The object of the layout plan is merely to indicate the situation of the shops in the market and the use indicated in it for any particular shop does not amount to a restriction within the meaning of the Zoning Plan as defined in the Rules, because layout plan is not a statutory plan like the Zoning Plan. The Administration, while indicating the trade for a particular shop, did not make a representation the said shop was to be used for that particular trade for all times. Considering the stage of development and the needs of the locality, the Administration had the right in the exercise of its executive discretion to specify the trade for which the particular shop was to be used. This could not be termed to be in the nature of representation made to the citizens. The Chief Administrator is empowered under rule 117 of the Rules to modify or waive the terms and conditions as thought fit by him. There is no provision in the Zoning Plan that there will be only one halwai shop and one restaurant in the market of Sector 11. Respondent No. 3 had been permitted a change of the trade from general to halwai, after a thorough processing of the case. The matter was examined at the highest level and the comparative statement of the number of halwais' shops in different sectors was drawn up and examined along with the circumstances of acute hardship mentioned by respondent No. 3 in his application. The Chief Architect, Chandigarh administration, was consulted and he gave an opinion that the change of trade does not involve any change in the Zoning Plan. The town planners also expressed the view that there could be no objection to the request of respondent No. 3 being acceded to on his fulfilling the conditions laid down by the Administration for such cases.

(3.) THE first contention of the learned counsel for the petitioners is that the Government gave an undertaking while preparing a layout plan of Section 11-D that there would be two shops, one for halwai and the other for restaurant. Petitioners Nos. 1 and 2 and grandfather of petitioner No. 3 purchased the shops on the aforesaid representation. The main attraction for purchasing the shops by them was that there would be only one halwai shop and one restaurant. The learned counsel for the respondents states that no representation was made that there would be only one shop for halwai and one restaurant. He also submits that the petitioners have no legal right to challenge the order passed by respondent no. 2 for changing the nature of business in the shop.