TaxTMI 
TaxTMI 
2012 (2) TMI 714
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....nder Section 8A of the Capital of Punjab (Development & Regulation) Act, 1952 (for short '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, petit....
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....nts, the stand of the petitioners is that the sites allotted to the petitioners are governed 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: Ea....
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....egality. Reliance is placed upon M/s Devi Das Gopal Krishnan etc. Vs.State of Punjab and others AIR 1967 SC 1895; Bimal Chandra 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 specifyin....
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....estern corner of Khasra No.228 to South-Eastern corner of Khasra No.126/12 along Western and Southern side of Khasra No.126 and 126/12, respectively, Village 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 Co....
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....tion regarding erection of shops, workshops, warehouses, factories or buildings of a specified architectural character or buildings designed for particular purposes in any locality; xxx xxx xxx (f) restrictions regarding the use of site for purposes other than 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....
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....f any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid and any such investigation, legal proceedings or remedy may he instituted, continued or enforced, and any such privilege, forfeiture or punishment may he imposed and if this substitution has not been made.] xxx xxx xxx 22. Power to make rules. - (1) The Central 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; ....
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....the Act. It is, thus, contended that in terms of Section 424A of the Municipal Act, the area of notified area committee is governed and regulated by the provisions of the Act. The said area is also governed by the Act, in terms of the notification reproduced above. Therefore, the erstwhile area of notified committee came at par with rest of the city of Chandigarh, where both the Act and the Municipal Corporation Act are applicable. The provisions of the Act and the Municipal Corporation 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 f....
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....(d) empowers the Government to frame rules in terms of such provisions of the Act. The Chandigarh (Sale of Sites and Building) Rules, 1960 (for short '1960 Rules') have been enacted contemplating transfer of the property on freehold basis, whereas Chandigarh Lease Hold of Sites and Building Rules, 1973 have been enacted contemplating transfer of land on leasehold basis. Section 4 of the Act empowers the Central Government or the Chief Administrator to issue directions for the purpose of proper 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, intende....
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....fficer may specify that the transferee shall not carry on any trade or employ any industry other than General Trade, Semi Industrial Trade or Special Trade. The following Sub Rule 3 and the proviso stands inserted to Sub-Rule 3 of Rule 9 vide notification dated 5.6.2002: (3) The expression "General Trade", "Semi-industrial Trade", "Special Trade", "New General Trade" and "New Special Trade" shall mean one or more of the trades respectively mentioned in Part A, B and C of the Schedule I and Parts A 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 s....
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.... Sites and Building Rules, 1973. Question No.3 Section 7 of the Act deals with levy of fee or taxes for the purpose of providing, maintaining or continuing any amenity at Chandigarh. The expression "amenity" is defined under Section 2(b) of the Act. It includes roads, water-supply, street, lighting, drainage, sewerage, public building, horticulture, landscaping and any other public utility service provided at Chandigarh. The charges claimed by the Administration for conversion of residential portion of the building for 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 le....