Himachal Pradesh High Court
Kavi Khanna vs Municipal Corporation on 23 May, 2023
Bench: Tarlok Singh Chauhan, Satyen Vaidya
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No. 3672 of 2022 a/w CWP No. 5507 of 2022 Reserved on: 18.05.2023 Decided on: 23.05.2023 .
__________________________________________________________
1. CWP No. 3672 of 2022 Kavi Khanna ...Petitioner Versus Municipal Corporation, Shimla and another ...Respondents
2. CWP No. 5507 of 2022 N.D. Bhardwaj ..Petitioner Versus Municipal Corporation, Shimla and another ...Respondents.
_______________________________________________________________ Coram The Hon'ble Mr. Justice Tarlok Singh Chauhan, Acting Chief Justice.
The Hon'ble Mr. Justice Satyen Vaidya, Judge 1 Whether approved for reporting? Yes _______________________________________________________________ For the petitioner(s) : Ms. Heena Chauhan, Advocate, for the petitioner in CWP No. 3672 of 2022.
Mr. Suneel Awasthi, Advocate, for the petitioner in CWP No. 5507 of 2022 and for respondent No.2, in CWP No. 3672 of 2022.
For the respondents: Mr. Naresh K. Gupta, Advocate, for
respondent No.1 in both the
petitions/Municipal Corporation,
Shimla.
Satyen Vaidya, Judge
Both these petitions have been heard together and are being decided by a common judgment on account of 1 Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 23/05/2023 20:32:50 :::CIS 2inter-connection of facts involved.
2. For clarity, petitioner in CWP 3672 of 2022 will hereafter be referred as "the petitioner", respondent No.1 as .
"the Corporation", Commissioner of respondent No. 1 as "the Commissioner" and the respondent No 2 who also is the petitioner in CWP 5507 of 2022 will be referred to as "the respondent"
3. Facts necessary for adjudication of these petitions are that a complaint was received by the Architect Planner of the Corporation on 14.11.2019, through the "Chief Minister Sankalp Seva", alleging acts of unauthorized construction against the petitioner. The Commissioner on 5.12.2019 issued a notice under Sections 254(6) & 253 read with Section 242 of the Himachal Pradesh Municipal Corporation Act, 1994 (for short, 'the Act') to the petitioner requiring him to show cause as to why the civic amenities provided to petitioner be not withdrawn and why the unauthorized construction raised by him be not demolished. Petitioner was required to submit his response within three days and also to present himself before the Commissioner on 7.12.2019 at ::: Downloaded on - 23/05/2023 20:32:50 :::CIS 3 10.00 a.m. The allegation in the notice dated 5.12.2019 read as under:
"You have erected/raised CGI sheets fencing having .
height from 1.60 to 2.20 mtrs. On the both side of the path/road at Kanlog by violating M.C. building bye- laws and without any permission of competent authority".
4. Petitioner submitted his reply to the Commissioner on 7.12.2019. It was stated that petitioner was not the sole owner of the properties. The CGI fencing had been raised much before 16.11.2017 to protect the plot of petitioner and other co-owners from debris/garbage etc. being dumped by the residents of the area. Petitioner also submitted that the construction on the part of plot of land was being raised in accordance with sanction. Certain counter-allegations were also levelled against the persons residing in neighbourhood for which the petitioner had reserved liberty to file separate complaint.
5. The proceedings initiated against petitioner by the Commissioner were not taken to logical end within reasonable time. Respondent alongwith some other residents of the area approached this Court by way of CWP No.2694 of 2020 seeking directions against the Commissioner to decide ::: Downloaded on - 23/05/2023 20:32:50 :::CIS 4 the proceedings against petitioner expeditiously and to complete the construction of Ambulance road undertaken by the Corporation from Shiv Mandir to Durga Mandir in Kanlog .
area of Shimla town. The respondent and other petitioners in CWP No. 2694 of 2020 had also alleged having filed complaint against petitioner. According to them, petitioner by raising CGI sheet fencing on both sides of the path, on one hand had encroached upon the path and on the other prevented the Corporation from constructing Ambulance road.
6. The Division Bench of this Court on 29.10.2020 issued directions in CWP No.2694 of 2020 to the Commissioner to complete the proceedings against petitioner as expeditiously as possible and in no event later than 31.12.2020. The parties or their counsel(s) were directed to appear before the Commissioner on 06.11.2020 at 11.00 A.M.
7. The petitioner was duly represented in CWP No. 2694 of 2020 and order dated 29.10.2020 in said petition was passed in presence of learned counsel representing the petitioner.
::: Downloaded on - 23/05/2023 20:32:50 :::CIS 58. Petitioner did not appear before the Commissioner on 06.11.2020. The Commissioner proceeded with the case and finally passed an order against petitioner on 24.12.2020, .
the operative part of the order passed by the Commissioner reads as under:
"Now, in terms of the directions passed by the Hon'ble National Green Tribunal coupled with the provisions contained in Section 253 of the Himachal Pradesh Municipal Corporation Act, 1994, and in compliance to the orders dated 29.10.2020 passed by the Hon'ble High Court of H.P. in CWP No. 2694 of 2020 titled as N.D. Bhardwaj & others Vs. State of H.P. the respondent is directed to remove the illegally erected boundary wall of CGI sheets on both sides of the said road/path and further restore it to its original position as narrated above within a period of two weeks from the receipt of this order, failing which the same shall be demolished by E.E. (R&B), M.C. Shimla at the risk, cost and responsibility of the respondent.
Further Architect Planner, M.C., Shimla is directed to get this order served upon the respondent in accordance with the provisions, contained in the Himachal Pradesh Municipal Corporation Act, 1994 and report compliance".
9. Aggrieved against the order passed by the Commissioner, petitioner preferred appeal under Section 253 (2) of the Act before learned District Judge, Shimla, which was assigned for disposal to learned Additional District Judge (II), Shimla. The Appellate Authority vide order dated 22.3.2022, rejected the contentions of petitioner raised in the appeal and dismissed the same. Noticeably, in the meanwhile, CWP No. 2694 of 2020 had been disposed of by ::: Downloaded on - 23/05/2023 20:32:50 :::CIS 6 this Court keeping in view the remedy of appeal already availed by petitioner. The respondent was granted liberty to seek his impleadment in the appeal before the Appellate .
Authority. Accordingly, the respondent on his application was impleaded as a party in appeal before the Appellate Authority.
10. In CWP No. 3672 of 2022, petitioner has prayed for issuance of writ of certiorari to quash notice dated 05.12.2019 (Annexure P-1) issued by the Commissioner to petitioner, order dated 24.12.2020 (Annexure P-4) passed by the Commissioner and order dated 22.3.2022 (Annexure P-7) passed by learned Additional District Judge (II), Shimla.
11. Later, the respondent also came up with CWP No. 5507 of 2022, seeking direction against Corporation to complete the construction of Ambulance road in Mauza Kanlog, Tehsil and District Shimla as per decision dated 12.02.2010 in a time bound manner. Directions have also been sought against Corporation to remove the tin sheets and encroachment done by petitioner in Khasra No. 220 and 277, situated at Mauza Kanlog, Tehsil and District, Shimla.
::: Downloaded on - 23/05/2023 20:32:50 :::CIS 712. We have heard learned counsel for the parties and have also gone through the records of the case carefully.
13. Learned counsel for the petitioner, in the first .
instance, contended that the petitioner has been condemned unheard. In compliance to directions passed by this Court in CWP No. 2694 of 2020, petitioner had visited the office of the Commissioner on 06.11.2020 and he was told that the Commissioner was not available and petitioner would be notified future date in due course.
14. Noticeably, petitioner had raised the same ground in appeal before the Appellate Authority. The ground so raised has been rejected by the learned Appellate Authority by holding as under:
"....Hence, the perusal of the proceedings shows that the absence of the appellant before the Commissioner, M.C. Shimla on 06.11.2020 was also intentional and not due to the reason that he had been informed about summons being separately issued for his service......"
The order dated 24.12.2020, Annexure P-4, passed by the Commissioner had also specifically noted as under:
"In compliance to the orders dated 29.10.2020 passed by the Hon'ble High Court of H.P. in CWP No. 2694 of 2020 titled as N.D. Bhardwaj & others vs. State of H.P. the case was taken up on 06.11.2020 but despite the best knowledge of said orders/directions of the Hon'ble High Court, the respondent did not appear before this Court and the matter was proceeded accordingly."::: Downloaded on - 23/05/2023 20:32:50 :::CIS 8
15. The above are pure findings of facts. In order to prove that such findings by the Commissioner and learned Appellate Court were against the record or perverse, the onus .
was on petitioner, which he has miserably failed to discharge.
Nothing has been placed on record to falsify such findings of facts.
16. The contours of jurisdiction of this Court to interfere with the findings of fact returned by statutory tribunals/authorities are well defined. In this respect, reference can be made to the exposition made by the Hon'ble Supreme Court in General Manager, Electrical Rengali Hydro Electric Project, Orissa and others vs. Giridhari Sahu and others (2019) 10 SCC 695, wherein it was held as under:
"19. Since, the applicants contend that the findings of fact by the Labour Court are virtually unassailable in the certiorari jurisdiction and the argument has been found appealing and accepted by the High Court, it is necessary to deal with the same.
20. An erroneous decision in respect of a matter which falls within the authority of the Tribunal would not entitle a writ applicant for a writ of certiorari. However, if the decision relates to anything collateral to the merit, an erroneous decision upon which, would affect its jurisdiction, a writ of certiorari would lie. See Parry & Co. Ltd. vs. Commercial Employees Association AIR 1952 SC
179. The scope of writ of certiorari came in for an elaborate ::: Downloaded on - 23/05/2023 20:32:50 :::CIS 9 consideration by this Court in T.C. Basappa v. T. Nagappa AIR 1954 SC 440. Therein, this Court, inter alia, held as follows: (AIR p.444, paras 7, 9 & 10) "7. ... The second essential feature of a writ of certiorari is that the control which is exercised .
through it over judicial or quasi-judicial tribunals or bodies is not in an appellate but supervisory capacity. In granting a writ of certiorari the superior court does not exercise the powers of an appellate tribunal. It does not review or reweigh the evidence upon which the determination of the inferior tribunal purports to be based. It demolishes the order which it considers to be without jurisdiction or palpably erroneous but does not substitute its own views for those of the inferior tribunal. The offending order or proceeding so to say is put out of the way as one which should not be used to the detriment of any person [ Vide Per Lord Cairns in Walsall Overseers v. London and North Western Railway Co., (1878) LR 4 AC 30].
r xxx xxx xxx
9. Certiorari may lie and is generally granted when a court has acted without or in excess of its jurisdiction. The want of jurisdiction may arise from the nature of the subject-matter of the proceeding or from the absence of some preliminary proceeding or the court itself may not be legally constituted or suffer from certain disability by reason of extraneous circumstances [Vide Halsbury, 2nd Edn., Vol. IX, p. 880]. When the jurisdiction of the court depends upon the existence of some collateral fact, it is well settled that the court cannot by a wrong decision of the fact give it jurisdiction which it would not otherwise possess [ Vide Banbury v. Fuller, (1853) LR 9 Exch. 111; R v. Income Tax Special Purposes Commissioners, (1888) LR 21 QBD 313].
10. A tribunal may be competent to enter upon an enquiry but in making the enquiry it may act in flagrant disregard of the rules of procedure or where no particular procedure is prescribed, it may violate the principles of natural justice. A writ of certiorari may be available in such cases. An error in the decision or determination itself may also be amenable to a writ of certiorari but it must be a manifest error apparent on the face of ::: Downloaded on - 23/05/2023 20:32:50 :::CIS 10 the proceedings, e.g. when it is based on clear ignorance or disregard of the provisions of law."
(Emphasis supplied)
21. In Hari Vishnu Kamath v. Ahmed Ishaque & Ors. AIR 1955 SC 233, this Court held: (AIR pp.243-44, paras 21 & .
23) "21. ... On these authorities, the following propositions may be taken as established: (1) Certiorari will be issued for correcting errors of jurisdiction, as when an inferior Court or Tribunal acts without jurisdiction or in excess of it, or fails to exercise it. (2) Certiorari will also be issued when the court or Tribunal acts illegally in the exercise of its undoubted jurisdiction, as when it decides without giving an opportunity to the parties to be heard, or violates the principles of natural justice. (3) The court issuing a writ of certiorari acts in exercise of a supervisory and not appellate jurisdiction. One consequence of this is r that the court will not review findings of fact reached by the inferior court or tribunal, even if they be erroneous. This is on the principle that a court which has jurisdiction over a subject-matter has jurisdiction to decide wrong as well as right, and when the legislature does not choose to confer a right of appeal against that decision, it would be defeating its purpose and policy, if a superior court were to rehear the case on the evidence, and substitute its own findings in certiorari. These propositions are well-settled and are not in dispute.
xxx xxx xxx
23. It may therefore be taken as settled that a writ of certiorari could be issued to correct an error of law. But it is essential that it should be something more than a mere error; it must be one which must be manifest on the face of the record. ... The fact is that what is an error apparent on the face of the record cannot be defined precisely or exhaustively, there being an element of indefiniteness inherent in its very nature, and it must be left to be determined judicially on the facts of each case." (Emphasis supplied)
22. The question arose in Dharangadhara Chemical Works Ltd. v. State of Saurashtra and others, AIR 1957 SC 264.
::: Downloaded on - 23/05/2023 20:32:50 :::CIS 11The question was whether the finding by the Tribunal under the Act about the party respondents being workmen was liable to be interfered with. After dealing with various tests relating to determining the issue, this Court also made the following observations: (AIR p. 269, para 19) .
"19. ... It is equally well settled that the decision of the Trinbunal on a question of fact which it has jurisdiction to determine is not liable to be questioned in proceedings under Article 226 of the Constitution unless at the least it is shown to be fully unsupported by evidence."
(Emphasis supplied)
23. A Constitution Bench of this Court, in Syed Yakoob v. K.S. Radhakrishnan and another AIR 1964 SC 477, has spoken about the scope of Writ of Certiorari in the following terms: (AIR pp. 479-80, para 7) "7. The question about the limits of the jurisdiction of High Courts in issuing a writ of r certiorari under Article 226 has been frequently considered by this Court and the true legal position in that behalf is no longer in doubt. A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior courts or tribunals: these are cases where orders are passed by inferior courts or tribunals without jurisdiction, or in excess of it, or as a result of failure to exercise jurisdiction. A writ can similarly be issued where in exercise of jurisdiction conferred on it, the court or tribunal acts illegally or improperly, as for instance, it decides a question without giving an opportunity to be heard to the party affected by the order, or where the procedure adopted in dealing with the dispute is opposed to principles of natural justice. There is, however, no doubt that the jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the court exercising it is not entitled to act as an appellate court. This limitation necessarily means that findings of fact reached by the inferior court or tribunal as a result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an ::: Downloaded on - 23/05/2023 20:32:50 :::CIS 12 error of fact, however grave it may appear to be. In regard to a finding of fact recorded by the tribunal, a writ of certiorari can be issued if it is shown that in recording the said finding, the tribunal had erroneously refused to admit admissible and material evidence, or had .
erroneously admitted inadmissible evidence which has influenced the impugned finding. Similarly, if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari.
In dealing with this category of cases, however, we must always bear in mind that a finding of fact recorded by the tribunal cannot be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the tribunal was insufficient or inadequate to sustain the impugned finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the r exclusive jurisdiction of the tribunal, and the said points cannot be agitated before a writ court. It is within these limits that the jurisdiction conferred on the High Courts under Article 226 to issue a writ of certiorari can be legitimately exercised (vide Hari Vishnu Kamath v. Ahmad Ishaque [AIR 1955 SC 233] , Nagendra Nath Bora v. Commr. of Hills Division and Appeals [AIR 1958 SC 398] and Kaushalya Devi v. Bachittar Singh [AIR 1960 SC 1168])."
(Emphasis supplied)
24. We may more importantly also advert to the view expressed by this Court in a matter which again arose under the Act in M/s. Perry and Co. Ltd. v. P.C. Pal, AIR 1970 SC 1334. It was a case related to the scope of the jurisdiction of the Tribunal in the matter of retrenchment under Section 25F. This is what the Court held inter alia:
(AIR p. 1340, para 11) "11. The grounds on which interference by the High Court is available in such writ petitions have by now been well established.In Basappa v.
Nagappa, it was observed that a writ of certiorari is generally granted when a court has acted without or in excess of its jurisdiction. It is available in those cases where a tribunal, ::: Downloaded on - 23/05/2023 20:32:50 :::CIS 13 though competent to enter upon an enquiry, acts in flagrant disregard of the rules of procedure or violates the principles of natural justice where no particular procedure is prescribed. But a mere wrong decision cannot be corrected by a writ of certiorari as that would be .
using it as the cloak of an appeal in disguise but a manifest error apparent on the face of the proceedings based on a clear ignorance or disregard of the provisions of law or absence of or excess of jurisdiction, when shown, can be so corrected. In Dharangadhara Chemical Works Ltd. v. State of Saurashtra [(1957) SCR 152] this Court once again observed that where the Tribunal having jurisdiction to decide a question comes to a finding of fact, such a finding is not open to question under Article 226 unless it could be shown to be wholly unwarranted by the evidence. Likewise, in State of Andhra Pradesh v. S. Sree Rama Rao [AIR 1963 S.C. 1723] this Court observed that where the Tribunal has r disabled itself from reaching a fair decision by some considerations extraneous to the evidence and the merits of the case or where its conclusion on the very face of it is so wholly arbitrary and capricious that no reasonable person can ever have arrived at that conclusion interference under Article 226 would be justified.
..." (Emphasis supplied)
25. We may advert to the decision of this Court in Mukand Ltd. v. Mukand Staff & Officers' Association (2004) 10 SCC 460. We may only advert to the following paragraphs: (SCC pp. 486-87, paras 47-49) "47. In support of his contention that this Court while exercising its power under Article 136 of the Constitution of India in an appeal from the judgment of the High Court rendered in exercise of its powers under Articles 226 and 227 of the Constitution of India will exercise the same power which the High Court could exercise and will not interfere with the finding of facts recorded by a Tribunal, learned counsel cited the judgment in the case of Parry & Co. Ltd. v. P.C. Pal [AIR 1970 SC 1334 : (1969) 2 SCR 976] . In the said case, this Court held as under:
(AIR p. 1341, para 13) ::: Downloaded on - 23/05/2023 20:32:50 :::CIS 14 "13. Since this is an appeal arising from a writ petition for certiorari we also would not interfere with the conclusions arrived at by the Tribunal except on grounds on which the High Court could have done."
.
48. In the case of Fuel Injection Ltd. v. Kamger Sabha [(1978) 1 SCC 156 : 1978 SCC (L&S) 33] this Court observed as under: (SCC p. 157, para 3) "3. ....But the present appeals are from a judgment of the High Court under Article 226 and so the jurisdiction of this Court in entertaining an appeal by special leave under Article 136 must ordinarily be confined to what the High Court could or would have done r under Article 226."
49. In our view, the material that was placed before the Tribunal was not considered or discussed and that there was, as such, no adjudication by the Tribunal. The whole award of the Tribunal, in our view, is liable to be set aside on the ground of non-application of mind by the Tribunal to the material on record. In the first place, the Tribunal has no jurisdiction to entertain and decide a dispute which covered within its fold "persons who are not workmen". That the material on record before the Tribunal as regards the comparable concerns was admittedly "sketchy" and incomplete as observed by the learned Single Judge of the High Court and that the award based on such material could not have been sustained."
(Emphasis supplied)
26. In Durga Das Basu "Commentary on the Constitution of India" 9th Edition, in regard to the concept of no evidence, we find the following discussion:
"No evidence' does not mean only a total dearth of evidence. It extends to any case where the evidence taken as a whole is not reasonably capable of supporting the finding, ::: Downloaded on - 23/05/2023 20:32:50 :::CIS 15 or where, in other words, no tribunal could reasonably reach that conclusion on that evidence. This "no evidence" principle clearly has something in common with the principle that perverse or unreasonable action is unauthorised and ultra vires. An order made .
without "any evidence" to support it is in truth, made without order made without "any evidence is worthless, it is equal to having "no evidence" jurisdiction."
(Emphasis supplied)
27. In fact, in the decision relied upon by the applicants, viz., S. Viswanathan (supra), it is, inter alia, held as follows: (SCC p. 196, para 12) "12. Normally, the Labour Court or the Industrial Tribunal, as the case may be, is the final court of facts in these types of disputes, but if a finding of fact is perverse or if the same is not based on legal evidence the High Court exercising a power either under Article r 226 or under Article 227 of the Constitution can go into the question of fact decided by the Labour Court or the Tribunal. But before going into such an exercise it is necessary that the writ court must record reasons why it intends reconsidering a finding of fact. In the absence of any such defect in the order of the Labour Court the writ court will not enter into the realm of factual disputes and finding given thereon...." (Emphasis supplied)
28. On the conspectus of the decisions and material, we would hold as follows:
The jurisdiction to issue writ of certiorari is supervisory and not appellate. The Court considering a writ application of Certiorari will not don the cap of an Appellate Court. It will not reappreciate evidence. The Writ of Certiorari is intended to correct jurisdictional excesses. A writ of prohibition would issue when a Tribunal or authority has not yet concluded its proceedings. Once a decision is rendered by a body amenable to Certiorari jurisdiction, certiorari could be issued when a jurisdictional error is clearly established. The jurisdictional error may be from failure to observe the limits of its jurisdiction. It ::: Downloaded on - 23/05/2023 20:32:50 :::CIS 16 may arise from the procedure adopted by the body after validly assuming jurisdiction. It may act in violation of principles of natural justice. The body whose decision which comes under attack may decide a collateral fact which is also a jurisdictional fact and assume jurisdiction. Such .
a finding of fact is not immune from being interfered with by a Writ of Certiorari. As far as the finding of fact which is one within the jurisdiction of the court, it is ordinarily a matter 'off bounds' for the writ court. This is for the reason that a body which has jurisdiction to decide the matter has the jurisdiction to decide it correctly or wrongly. It would become a mere error and that too an error of fact. However, gross it may amount to, it does not amount to an error of law. An error of law which becomes vulnerable to judicial scrutiny by way of Certiorari must also one which is apparent on the face of the record. As held by this Court in Hari Vishnu Kamath (supra), as to what constitutes an error apparent r on the face of the record, is a matter to be decided by the court on the facts of each case. A finding of fact which is not supported by any evidence would be perverse and in fact would constitute an error of law enabling the writ court to interfere. It is also to be noticed that if the overwhelming weight of the evidence does not support the finding, it would render the decision amendable to certiorari jurisdiction. This would be the same as a finding which is wholly unwarranted by the evidence which is what this Court has laid down [See M/s.
Perry and Co. Ltd (supra)].
Thus, there is no material on record warranting our interference in the findings of statutory authority(ies), which otherwise are findings of facts.
17. It was next contended on behalf of the petitioner that in absence of demarcation by Revenue Officer, it was preposterous to assume that petitioner had raised the ::: Downloaded on - 23/05/2023 20:32:50 :::CIS 17 construction by making encroachment on path. The contention so raised also deserves rejection for the reason that the petitioner had not specifically denied the allegation .
of having raised unauthorized construction. The notice Annexure P-1 was issued to petitioner by specifically pointing out as under:
"You have erected/raised CGI sheets fencing having height from 1.60 to 2.20 mtrs. On the both side of the path/road at Kanlog by violating M.C. building bye-laws and without any permission of competent authority."
In reply, the petitioner had submitted as under:
"The CGI fencing was raised much before 16.11.2017 to protect our plot as malba/garbage etc. was being dumped by some residents of the area. Also construction with proper sanction is being done on a part of the plot, and some material was stolen. Hundreds of plot owners, both govt. and private have constructed fencing in Shimla to protect and secure their properties."
18. In view of above stand taken by petitioner, it is too late for him now to say that the impugned orders could not have been passed against him without getting the property demarcated. Even without encroachment, the unauthorized construction can be there. In case petitioner had any proof with respect to his construction being authorized or permitted under the Act, it was for him to have produced such evidence. In absence, the only presumption that can be ::: Downloaded on - 23/05/2023 20:32:50 :::CIS 18 drawn against petitioner is that he had raised the CGI sheets fence(s)/wall(s) without any permission or sanction from the Corporation.
.
19. Fairness in the stand taken by a party before writ court or for that matter any court is an essential pre-
requisite. In our considered view, petitioner has failed in qualifying such benchmark. Assuming the contention of petitioner to be correct regarding his presence in the office of the Commissioner, M.C. Shimla on 06.11.2020, petitioner has no explanation as to why he did not enquire about the proceedings of the case thereafter. This Court in CWP No. 2694 of 2020, had passed the order dated 29.10.2020 in presence of learned counsel for the petitioner. There was a clear direction to the Commissioner to conclude the proceedings on or before 31.12.2020. In this view of the matter, the stand taken by the petitioner cannot be countenanced.
20. In result, there is no merit in the petition (CWP No. 3672 of 2022) and the same is dismissed. Respondent No.1 is directed to execute the order date 05.12.2019, Annexure P-1, within two weeks from the date of passing of this judgment.
::: Downloaded on - 23/05/2023 20:32:50 :::CIS 1921. In CWP No.5507 of 2022, the Corporation has taken a stand that Ambulance road was being constructed and the work was obstructed by the petitioner by raising CGI .
sheet fence/wall. In light of the directions issued in CWP No. 3672 of 2022, the prayer No.(ii) in CWP No. 5507 of 2022 is rendered infructuous. Since the Corporation has not raised any issue with respect to construction of Ambulance road from Shiv Mandir to Durga Mandir at Mauza Kanlog, Tehsil and District, Shimla, the Corporation shall also be under direction to complete the work of construction of Ambulance road as per approval already granted for the project within three months after the execution of order, Annexure P-1, in CWP No.3672 of 2022.
Both the petitions stand disposed of in the aforesaid terms, so also the pending application(s) if any.
(Tarlok Singh Chauhan)
Acting Chief Justice
23rd May, 2023 (Satyen Vaidya)
(GR) Judge
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