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REPLY AND REPRESENTATION AGAINST A SHOW CAUSE NOTICE FOR ALLEGED MISUSE OF A SITE OR BUILDING

(Filed in answer to a notice issued under __________)

To

__________
__________

Date: __________

Place: __________

SUBJECT: Reply and representation on behalf of __________ to Show Cause Notice No. __________ dated __________, issued under __________, in respect of __________, __________, Chandigarh

Sir / Madam,

The Noticee respectfully submits this reply and representation to the show cause notice described above, which was received on __________, and states as follows. This reply is filed without prejudice. Nothing in it is to be read as an admission that any misuse of the Property has occurred or subsists, and every allegation contained in the notice which is not expressly admitted below is denied.

PART I — THE NOTICEE AND THE PROPERTY

1. The Noticee. __________, __________ __________, resident of __________, telephone __________, who is __________ (together, the Noticee, whether one person or more).

2. Appearance and service. The Noticee appears and will continue to appear in these proceedings, in person or through a duly authorised representative. Every notice, summons, order and communication in this matter may be served on the Noticee at the address given in paragraph 1 above, and service at that address shall be good service. The Noticee requests that a copy of every order passed in this matter be supplied, so that the thirty days allowed for an appeal under section 10 of the Capital of Punjab (Development and Regulation) Act, 1952 and under Rule 18 of the Chandigarh Estate Rules, 2007 run from an order actually communicated.

3. The Property. __________, __________, Chandigarh, being __________, held on __________ tenure, measuring __________ (the Property), described more fully in the Schedule at the end of this reply.

4. How the Property is held. The Property came to the Noticee by way of __________, the original allotment having been made vide Allotment Letter No. __________ dated __________. The allotment letter, and every document evidencing the Noticee's title to the Property, already forms part of the record of this Office, and copies are produced with this reply for convenience.

5. The purpose for which the Property was allotted. The purpose recorded in the allotment letter is __________, and it is that record, and not any assumption about the character of the sector, which fixes the permitted use for the purposes of Rule 9(i) of the Chandigarh Estate Rules, 2007.

PART II — THE NOTICE TO WHICH THIS IS A REPLY

6. The notice. Show Cause Notice No. __________ dated __________, issued under __________, was received by the Noticee on __________. This reply is filed within the period allowed by the notice, and the Noticee prays that it be taken on the record of the file and considered before any order is made.

7. What the notice alleges. The substance of the allegation, as the Noticee understands it from the notice, is this: __________ The area said to be under misuse is stated in the notice as __________.

8. The Noticee's answer, in one sentence. The case of the Noticee is that __________.

PART III — PRELIMINARY SUBMISSIONS

9. What Rule 10 requires this Office to do. Rule 10(i) of the Chandigarh Estate Rules, 2007 provides that when a misuse of a site or building under Rule 9 is reported or comes to the notice of the Estate Officer, a notice of a period of not less than fifteen days shall be served on the allottee or lessee and on the occupier requiring that they shall, within a period of two months, remove the said misuse and pay monthly charges at Rs. 500 per square foot of the area under misuse, jointly and severally, for every month or part of a month during which the misuse occurs. Rule 10(ii) requires this Office, after affording an opportunity of being heard to the allottee or lessee and to the occupier, to determine whether or not the misuse has been removed. Rule 10(iii) permits recourse to section 8-A of the Act only if, after the expiry of two months from the notice, and after a further opportunity of being heard, the Estate Officer is satisfied that the misuse continues. Rule 10(iv) allows the period for removal to be extended beyond two months and up to six months where the misuse is on the part of the occupier, or where it cannot be removed unless certain acts are done by the occupier. Rule 10(v) makes established misuse charges payable within fifteen days of the order, with interest at one and a half per cent for each month of delay or part of it. The Noticee respectfully submits that each of those steps is a condition of a valid order, and that the opportunity of being heard which Rules 10(ii) and 10(iii) require is a hearing on the question whether misuse exists at all, and not merely on the amount.

10. Resumption and forfeiture under section 8-A of the Act. Whatever else the notice invokes, resumption is a last resort. Rule 10(iii) of the Chandigarh Estate Rules, 2007 permits recourse to section 8-A only after the expiry of two months from the notice, only after a further opportunity of being heard, and only on recorded satisfaction that the misuse continues. Should this Office at any stage propose to proceed to the resumption of the Property or to the forfeiture of any money, the Noticee asks to be told so distinctly and to be heard separately on that question.

11. Rule 1(ii) and the date of allotment. Rule 1(ii) of the Chandigarh Estate Rules, 2007 provides that those Rules come into force from the date of their publication in the official gazette — the notification of the Finance Department, Chandigarh Administration bearing No. 50/10/71-UTFI(5)-2007/6952 dated 7 November 2007 — and shall apply to all allotments and auctions made after that date and to actions or transactions pursuant to them. Rule 20(i) repealed the Chandigarh (Sale of Sites and Buildings) Rules, 1960 and the Chandigarh Leasehold of Sites and Buildings Rules, 1973, and Rule 20(ii) saves everything done or taken under the repealed rules so far as it is not inconsistent with the 2007 Rules. As to the applicability of the 2007 Rules to the Property, __________. The Noticee accordingly prays that, before any charge is computed, this Office record in its order the rule under which the charge is levied and the date of the allotment on which that rule is said to operate, so that the Noticee knows the case that has to be met on appeal.

12. Quantification. As to the quantification of any charge, __________. The Noticee further submits that Rule 10(i) fixes the charge by reference to the area under misuse and to the months or parts of months during which the misuse occurs, so that a demand is only as good as the measurement and the period behind it; that Rule 10(ii) contemplates charges being levied from the date of issue of the notice up to the date of removal; and that a lump sum unaccompanied by a measured area, a start date, an end date and an arithmetical working cannot be answered and ought not to be made. The Noticee prays that any computation proposed be put to the Noticee in writing before it is confirmed, and that the Noticee be heard on it.

13. Material relied upon, and natural justice. As to the material relied upon in the notice, __________. An order under Rule 10 or under section 8-A visits the Noticee with a monthly charge, with interest at one and a half per cent for each month of delay, with recovery as arrears of land revenue under section 8 of the Act, and ultimately with resumption of the Property and forfeiture of up to ten per cent of the consideration money, interest and other dues. Section 19 of the Act bars the civil court from entertaining any suit or proceeding in respect of recovery under section 8, resumption under section 8-A, forfeiture under that section, or any order made in the exercise of a power conferred by or under the Act. The proceedings before this Office are therefore, in substance, the only fact-finding forum the Noticee has, and the Noticee respectfully submits that the opportunity of being heard must be a real one: notice of the case, sight of the material, a chance to answer it, and a reasoned order.

PART IV — REPLY ON THE FACTS

14. The use to which the Property is actually put. The Property is at present being used as follows: __________. That use is consistent with the purpose recorded in the allotment letter, and the Noticee is willing to demonstrate it on inspection at any reasonable time.

15. Reply to the allegations, in detail. __________

16. The occupier, and the Explanation to Rule 10(i). The Explanation to Rule 10(i) of the Chandigarh Estate Rules, 2007 provides that where the Estate Officer determines that the misuse is on the part of the occupier, the charges shall be recovered from the occupier only, and that in case of non-payment by the occupier they shall be recovered as arrears of land revenue. Rule 10(iv) further allows the period for removal to be extended up to six months where the misuse is on the part of the occupier or cannot be removed without acts on the part of the occupier. The Noticee prays that this Office determine, under the Explanation to Rule 10(i), on whose part the use complained of arises, and that every occupier of the Property be separately noticed and separately heard as Rule 10(i) requires. A determination on that question is not optional: it decides who pays, and it decides whether the period for removal is two months or up to six.

17. Removal. As to removal, __________. The Noticee is conscious that under Rule 10(ii) this Office must, after hearing, determine whether the misuse has been removed, and asks that such a determination be made and recorded rather than left to inference.

18. Permission and change of use. As to permission, __________. The Noticee is aware that under the proviso to Rule 9(i) of the Chandigarh Estate Rules, 2007 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 a building or a portion of it to be used for a purpose other than that for which the site was allotted, subject to conditions; that under the proviso to Rule 9(iii) the competent authority may allow conversion from one trade list to another as per a notified scheme; and that under Rule 19 the Administrator may relax all or any of the provisions of the said Rules for reasons to be recorded in writing, in public interest and in exceptional circumstances. The Noticee prays that any application made or to be made under those provisions be considered before any coercive order is passed.

19. Dues. As to dues, __________. A User Account Statement for the Property generated from estateoffice.chd.gov.in is enclosed. The Noticee is aware that under section 8 of the Act arrears are recoverable as arrears of land revenue, and states that any amount finally found due will be paid.

20. Earlier proceedings on the Property. Save as stated above and as appears from the record of this Office, no other proceeding concerning the use of the Property is pending.

21. Documents filed with this reply. The Noticee files the following in support of this reply: __________ The Noticee craves leave to file such further documents, photographs, measurements and affidavits as may be necessary, and to lead evidence at the hearing.

PART V — PRAYER

22. In the premises, the Noticee respectfully prays that this Office may be pleased to:

(a) take this reply on the record of the file and consider it, together with the documents filed with it, before any order is made;

(b) hold that no misuse of the Property within the meaning of Rule 9 read with Rule 10 of the Chandigarh Estate Rules, 2007 is established, and discharge Show Cause Notice No. __________ dated __________;

(c) in the alternative, and without prejudice, determine under the Explanation to Rule 10(i) on whose part the use complained of arises, and determine under Rule 10(ii), after hearing, whether it has been removed and the exact area and period by reference to which any charge is computed;

(d) __________;

(e) __________;

(f) not proceed under section 8-A of the Capital of Punjab (Development and Regulation) Act, 1952 to the resumption of the Property or to the forfeiture of any money without a separate notice and a separate opportunity of being heard on that question, no ground for such a course existing; and

(g) pass such further or other order as the facts of the case and the justice of the matter require.

PART VI — UNDERTAKINGS AND RESERVATION

23. Undertakings. The Noticee undertakes:

(a) to abide by the purpose for which the Property was allotted, as recorded in the allotment letter, and not to put the Property or any part of it to a use other than that purpose except with the written permission of the competent authority;

(b) to remove, within the period allowed by Rule 10 of the Chandigarh Estate Rules, 2007 or within such further period as this Office may allow under Rule 10(iv), anything which this Office determines, after hearing the Noticee, to be a misuse;

(c) to give access to the Property for inspection at any reasonable time on notice, and to produce the original of every document copies of which are filed with this reply; and

(d) to pay any amount finally determined to be lawfully due, within the fifteen days allowed by Rule 10(v), without prejudice to any appeal.

24. Reservation. The Noticee reserves the right to appeal to the Chief Administrator, Union Territory, Chandigarh within thirty days of the communication of any order made in this matter, under section 10 of the Capital of Punjab (Development and Regulation) Act, 1952 and Rule 18 of the Chandigarh Estate Rules, 2007, and thereafter to seek revision within thirty days — to the Adviser to the Administrator, Union Territory, Chandigarh under Rule 18(iv) against an order made under the said Rules, and to the Central Government under section 10(4) of the said Act against an order made under sections 8 and 8-A of it. The Noticee also reserves the right to file a further or supplementary reply if any material relied upon in the notice is supplied after the date of this reply.

VERIFICATION

I, __________, the Noticee above named, verify that the contents of paragraphs 1 to 24 of this reply are true to my knowledge, save as to those matters stated on information received and believed to be true, and that nothing material has been concealed. Verified at __________ on __________.

SIGNED

___________________________
__________
__________ __________
__________
__________
Telephone: __________

ANNEXURE A1 — AFFIDAVIT OF THE NOTICEE IN SUPPORT OF THE REPLY

(To be sworn on non-judicial stamp paper of the denomination current at the vendor's counter, before a Notary Public or an Oath Commissioner)

BEFORE __________

IN THE MATTER OF: Show Cause Notice No. __________ dated __________ in respect of __________, __________, Chandigarh

AFFIDAVIT

I, __________, __________ __________, aged about __________ years, resident of __________, do hereby solemnly affirm and declare as follows:

1. That I am __________, and am competent to swear this affidavit.

1. That the Property, namely __________, __________, Chandigarh, was allotted vide Allotment Letter No. __________ dated __________ for the purpose recorded as __________.

1. That the Property is at present being used as follows: __________.

1. That the case set out in the accompanying reply, and in particular that __________, is true to my knowledge.

1. That as to removal, __________.

1. That the contents of paragraphs 1 to 24 of the accompanying reply are true to my knowledge, save as to those matters stated on information received and believed to be true, and that nothing material has been concealed.

DEPONENT

VERIFICATION: Verified at __________ on __________ that the contents of the above affidavit are true and correct to my knowledge, that no part of it is false and that nothing material has been concealed.

DEPONENT

SCHEDULE — THE PROPERTY

All that piece of land, and the building standing on it, known as __________, __________, Chandigarh, within the Union Territory of Chandigarh, being __________, held on __________ tenure, measuring __________, allotted vide Allotment Letter No. __________ dated __________, together with every right, easement and appurtenance belonging to it.

LIST OF ENCLOSURES

A document already forming part of the record of this Office need not be produced again. Subject to that, the following are enclosed:

• Copy of Show Cause Notice No. __________ dated __________, with the envelope or acknowledgement showing receipt on __________.
• Copy of Allotment Letter No. __________ dated __________.
• Affidavit of the Noticee at Annexure A1, duly sworn, together with a separate affidavit in the same terms of every other person recorded as an allottee or lessee of the Property.
• User Account Statement of the Property, generated from estateoffice.chd.gov.in.
• Photographs of the Property showing the use to which it is put, with the date on which they were taken.
• Such further documents as are listed in paragraph 21 above.

FOR OFFICE USE — ACKNOWLEDGEMENT OF RECEIPT

Received a reply dated __________ from __________ to Show Cause Notice No. __________, in respect of __________, __________, Chandigarh.

Diary No. _____________ Date of receipt _____________ Number of pages received _____________

Next date fixed in the matter _____________________

___________________________
Signature and stamp of the receiving official