Dinesh Jain and Others vs U.T. Chandigarh and Others

Hemant Gupta, J.

The challenge in the present writ petition is to the show cause notices dated 12.04.2012 (Annexure P-4) and 19.02.2013 (Annexure P-5) issued under Chandigarh Estate Rules, 2007 read with Section 8-A of Capital of Punjab (Development and Regulation) Act, 1952 (for short the Act). The petitioner has also claimed a writ of mandamus directing the official respondents to approve/sanction and deliver the Revised Building Plan submitted by the petitioners on 14.09.2011. One Ms. Jaspreet Kaur was the owner in possession of free-hold residential plot now House No. 1029, Sector 19-B, Chandigarh. Half of the said house was purchased by respondents No. 4 and 5 whereas the remaining half was purchased by the petitioners on 28.11.2006.

The petitioners submitted Revised Building Plan for modification of the first and second floor said to be in their possession and deposited necessary fee on 14.09.2011 but Revised Building Plan was not sanctioned. On the other hand, show cause notices were issued for removal of the violations on the first and second floor of the house. The petitioners served notice upon the respondents that a condition of obtaining no objection from the other co-sharers is not warranted. Reference was made to some of the orders passed by this Court in some of the writ petitions i.e. CWP No. 18788 of 2007 titled as Deepak Bhasin v. Union Territory, Chandigarh, decided on 06.08.2009; LPA No. 32 of 2012 titled as Union Territory, Chandigarh v. Deepak Bhasin, decided on 18.01.2010; CWP No. 15186 of 2011 titled as Anuj Aggarwal and another v. Union Territory, Chandigarh and others, decided on 12.12.2012 and CWP No. 15187 of 2011 titled as Rajesh Gupta v. Union Territory, Chandigarh and others, decided on 12.12.2012.

In reply to the writ petition, the stand taken by the respondents is that request for sanction of revised building plan cannot be acceded as the same are not signed by all the co-owners.

Learned counsel for the petitioners vehemently argued that one co-owner represents interest of all the co-owners unless the other co-owner objects to such action of the other co-owner. Since there is no objection on behalf of respondents No. 4 and 5, the other co-owners, therefore the Revised Building Plan submitted by the petitioners are required to be sanctioned by the respondents. On the other hand, Ms. Dhir points out that notice was sent on 28.11.2011 vide Annexure R-1 to respondents No. 4 and 5 but they have not received any objections to the building plan submitted by the petitioners, therefore, in the absence of their consent to the Revised Building Plan, the same cannot be sanctioned.

We have heard learned counsel for the parties and find that the action of the Administration in refusing to sanction Revised Building Plan in the absence of consent manifested by signatures of the co-owners is not sustainable in law. In law, one co-owner represents the entire propriety body. Reference may be made to Division Bench judgment of this Court reported as Sant Ram Nagina Ram Vs. Daya Ram Nagina Ram and Others, , followed by Full Bench judgment of this Court in Bhartu Vs. Ram Sarup, and later by Full Bench judgment of this Court in Ram Chander Vs. Bhim Singh and Others, . The other co-owners have a right to object to an action of the co-owner but once the co-owner is not objecting to an action of the petitioners to seek approval of the building plans submitted, the consent of the other co-owners shall be presumed. In Karnail Singh v. Surinder Singh @ Chhinda, (2006-1) 147 PLR 820, one of us (Hemant Gupta J.) held as under:-

"Learned counsel for the petitioner has argued that the petitioner as a co-owner is competent to seek adjustment of the tenant in the proceedings under Section 13-B of the Act. It is not necessary for the petitioner to obtain express authority or consent of the co-owners. Reference is made to the judgment of the Hon''ble Supreme Court reported as India Umbrella Manufacturing Co. and Others Vs. Bhagabandei Agarwalla (Dead) by Lrs. Smt. Savitri Agarwalla and Others, , wherein the Hon''ble Supreme while placing reliance on its earlier judgments reported as Sri Ram Pasricha Vs. Jagannath and Others, and others & Dhannalal Vs. Kalawatibai and Others, , has held that one of the co-owners can file a suit for eviction of a tenant in the property generally owned by the co-owners. This principle is based on the doctrine of agency. One co-owner filing a suit for eviction against the tenant does so on his own behalf in his own right and as an agent of the other co-owners, the consent of other co-owner is assumed as taken unless it is shown that the other co-owners were not agreeable to eject the tenant and the suit was filed in spite of their disagreement. As a matter of fact the said question came up for adjudication before his Court in Civil Revision No. 6938 of 2005 (Kewal Krishan v. Mohan Singh decided on 9.1.2006). Relying upon the judgment of the Hon''ble Supreme Court in the case Dhannalal Vs. Kalawatibai and Others, , it has been held that one of the co-owners is competent to seek eviction of the tenant in terms of the provisions of Section 13-B of the Act. In Dhannalal''s case (supra), the Hon''ble Supreme Court observed as under:-

It is well settled by at least three decisions of this Court, namely, Sri Ram Pasricha Vs. Jagannath and Others, , Kanta Goel Vs. B.P. Pathak and Others, and Pal Singh Vs. Sunder Singh (Dead) by Lrs. and Others, , that one of the co-owners can alone and in his own right file a suit for ejectment of the tenant and it is no defence open to the tenant to question the maintainability of the suit on the ground that the co-owners were not joined as parties to the suit. When the properly forming the subject matter of eviction proceedings is owned by several owners, every owner, every co-owner owns every part and every bit of the joint property along with others and it cannot be said that he is only a part-owner or a fractional owner of the property so long as the property has not been partitioned. He can alone maintain a suit for eviction of the tenant without joining the other co-owners if such other co-owners do not object".

In view of the law laid down that a co-owner acts in his own right qua his interest but as an agent qua the other co-owners, we dispose of the present writ petition with a direction to the respondent to consider sanctioning of the building plans submitted by the petitioners without insisting upon the consent of the other co-owners and take a final decision within a period of two months from today.