C.R. No. 3266 of 1989 (O and M). Case: Chander Parkash Vs Ved Parkash and Ors.. High Court of Punjab (India)

Case NumberC.R. No. 3266 of 1989 (O and M)
CounselAnil Malhotra, Court Appointed Adv. and For Appellant: V.K. Kapur, Adv. and For Respondents: Hemant Kumar, Adv.
JudgesK.P. Bhandari, J.
IssueCode of Civil Procedure (CPC), 1908 - Order 26 Rules 14, 14(2); Chandigarh (Sales of Sites and Buildings) Rules, 1960 - Rule 14; Constitution of India - Articles 14, 21; Capital of Punjab (Development and Regulation) Act, 1952 - Section 20
Citation1991 (99) PLR 606
Judgement DateFebruary 22, 1991
CourtHigh Court of Punjab (India)

Judgment:

K.P. Bhandari, J.

  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.

  4. Notice of this revision petition was given to the Standing Counsel for the Union Territory Administration, which, was added as a party to the proceedings vide my order dated 2nd of February, 1990. Mr. Ashok Bhan, Senior Advocate appeared for the Union Territory Administration, Chandigarh.

  5. In this case, in order to determine whether the property in dispute can be partitioned, Shri Ravindra Partap, Architect was appointed as Commissioner He submitted his report to the Court together with plans Annexures B and C Mr. Ravindra Partap also appeared as a witness in the Court. Ha has proved his report. In his statement before the Court, he has deposed that he has 17 years experience in the line. He has further deposed that he is fully conversant with the architectural work and report has been prepared keeping in view the building bye-laws of the Chandigarh Administration. According to the report, he has also worked out the value of the house in dispute. In crass examination he has admitted that the existing structure consists of two bed rooms, one guest bed room, kitchen, verandah, bath and laterine. The value of the land has been determined after taking into consideration the value of the plot and building of the similar nature. According to the report, five independent apartments cars be constructed on the plot. He has prepared the scheme in Annexure 'B'. He has stated that five independent apartments of 900 sq ft covered area can be constructed on the plot He has valued the property at Rs. 10,79,650/- He has determined the value of apartments as follows:--

    (i) Ground Floor: Apartment I: Rs. 3,16,800/-- Apartment I: Rs. 3.71,700/- (ii) First floor having two apartments with 1868 sq. ft. as covered area. Value of one apartment: Rs. 3,63,300/- (iii) Second floor: Rs. 3,36,800/-

    According to his report, the property can be partitioned in the manner indicated in his report.

  6. The respondents were given opportunity to produce evidence" in rebuttal but the counsel for the respondents stated that his clients do not want to...

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