Punjab-Haryana High Court
Surender Singh vs State Of Punjab And Nother on 3 February, 2011
Author: Mehinder Singh Sullar
Bench: Mehinder Singh Sullar
CWP No. 9829 of 2010 1
In the High Court for the States of Punjab and Haryana at Chandigarh
...
CWP No. 9829 of 2010
Date of decision: February 3,2011
Surender Singh ..Petitioner.
Versus
State of Punjab and nother ..Respondents
Coram: HON'BLE MR. JUSTICE MEHINDER SINGH SULLAR
Present: Mr. Rakesh Bhatia, Advocate
for the petitioner.
Mr. Palwinder Singh, Sr. DAG, Punjab
for the respondent Nos. 1
Mr. R.S.Bajaj, Advocate
for respondent No.2
...
Mehinder Singh Sullar,J.(Oral)
The petitioner Surender Singh son of Ranjit Singh, has instituted the instant writ petition in the nature of Prohibition, restraining the Municipal Corporation, Ludhiana (Respondent No.2), from demolishing the shop in dispute, mainly on the ground that no statutory notice under Sections 246 and 269 of the Punjab Municipal Corporation Act, 1976 (hereinafter to be referred as "the Act") was issued to him. The respondents have filed a vague reply in this respect and did not produce the copy of show cause notice allegedly issued to the petitioner. Section 269 of the Act reproduced as under:-
"Section 269 of the Act postulates that where the erection of any building or execution of any work has been commenced, or is being carried on, or has been completed without or contrary to the sanction referred to in Section 262 or in contravention of any condition subject to which such sanction has been accorded or in contravention of any of the provisions of this Act or bye-laws made CWP No. 9829 of 2010 2 thereunder, the Commissioner may, in addition to any other action that may be taken under this Act, make an order directing that such erection or work shall be demolished by the person at whose instance the erection or work has been commenced or is being carried on or has been completed, within such period (not being less than three days from the date on which a copy of the order of demolition with a brief statement of the reasons therefor has been delivered to that person).
Proviso to this Section further posits that no order of demolition shall be made unless the person has been given by means of a notice served in such manner as the Commissioner may think fit, a reasonable opportunity of showing cause why such order should not be made."
2. A co-joint reading of Section 269 of the Act would reveal that order of demolition is required to be delivered and notice is required to be issued to the petitioner, before demolishing the shop in dispute.
3. The mandatory nature of Section 269 of the Act came to be considered before a Division Bench of this court in Smt. Santosh Versus State of Punjab and others (1993-3) PLR 397 and it was ruled as under:-
"A plain reading of first proviso to sub-section (1) of Section 269 of the 1976 Act quoted above, clearly shows that a notice is to be given to the aggrieved persons before the process of demolition starts.
It further specifies that if reply to the notice is not found to be satisfactory, the competent authority would be in a position to reject the claim of the affected party. The aggrieved persons under sub-
section (2) of Section 269 of the 1976 Act then can prefer an appeal to the Court of the District Judge of the city where the work of demolition is to take place. We agree with this argument put forward by the petitioner's counsel."
4. Meaning thereby issuance of notice and delivery of order of CWP No. 9829 of 2010 3 demolition under Section 269 of the Act, before the demolition are mandatory in nature.
5. What is not disputed here is that the petitioner has specifically pleaded that no such notice/order was issued to him before passing the demolition order and there is clear violation of Section 269 of the Act. The respondents have filed a vague reply in this respect and did not produce the copy of show cause notice/order allegedly issued to the petitioner in this context.
6. In the light of the aforesaid reasons and in the absence of mandatory notice/order, the instant writ petition is disposed of with the direction to respondent No.2 to issue statutory show cause notice/order under Section 269 of the Act to the petitioner, before demolition of the shop in question, in accordance with law.
February 3,2011 (Mehinder Singh Sullar)
nk JUDGE
Whether to be referred to reporter ? Yes/No