Punjab-Haryana High Court
Smt. Santosh vs State Of Punjab And Ors. on 3 August, 1999
Equivalent citations: AIR2000P&H19, (1999)123PLR397, AIR 2000 PUNJAB AND HARYANA 19, (1999) 4 RECCIVR 129, (1999) 2 CURLJ(CCR) 430, (1999) 3 PUN LR 397, (2001) 2 LANDLR 308
Author: Mehtab S. Gill
Bench: Mehtab S. Gill
JUDGMENT Mehtab S. Gill, J.
1. This petition has been filed for Issuance of a writ in the nature of certiorari quashing the action of the respondents in demolishing the shops/constructions raised by the petitioner on the land owned and possessed by her. A writ in the nature of mandamus directing the respondents not to dispossess her has also been prayed.
2. The relevant facts for deciding this petition may be, briefly, noticed :--
Petitioner has stated in the petition that she is the widow of Shri Sudarshan Kumar and is the owner of the disputed piece of land, which was purchased by her husband situated at Bajwa Nagar District Ludhiana, vide registered sale deed dated 23-9-1993. After the purchase of this land, husband of the petitioner constructed four shops with basement. This land is situated within the limits of Municipal Corporation. An electric meter is also installed and the petitioner is paying house-tax regularly to the respondent-Corporation. She has further stated that the respondent-Municipal Corporation is planning to construct and develop a 30 feet wide 5 kilometers long metalled road or Both sides of Budda Nallah passing on the outskirts of Ludiana town. The respondent-Corporation has not issued any notice to acquire the land under the Land Acquisition Act, 1894 (for short, 'the Act') or any other law.
3. On 5-6-1999, respondent No. 5 along with other officials of the Municipal Corporation came to the site to demolish the property of the petitioner. The petitioner showed them the registered sale deed in her favour, also the registered sale deed in her husband's favour and the affidavits whereby her sons and daughter had made her the sole owner. Further she showed to these officials the house tax receipts which she was paying regularly and she specifically asked respondents 4 and 5 whether any notice under Section 4 or 6 of the Act or under Section 269 of the Municipal Corpporation Act, 1976 (hereinafter referred to as 'the 1976 Act') has been issued by the State Government, but the officials of the Municipal Corporation did not pay any heed towards her request. On 6-6-1999 at 10.00 a.m., they demolished the construction over this piece of land, which was owned by her. She further alleges that she has suffered a loss of Rs. 7 lacs.
4. Notices were served upon the respondents whereby respondents 2 to 5 filed reply through the Legal Assistant, Municipal Corporation, Ludhiana.
5. Respondents, In the written statement, stated that the petitioner has not disclosed as to which property is that of hers and on which piece of land the disputed shops are constructed. As there are large number of encroachers and without the correct/khasra numbers, it is not possible to identify the possession of a person. Further it is stated that when the shops were made, petitioner's husband did not take any demarcation from the revenue authorities. No document of ownership was also produced. They have pleaded that on both sides of the drain, which is popularly known as pudda Nallah, there existed a path-way from time immemorial, but now it has attained the character of a public street. The owners of the nearb) lands have extended their occupation by unauthorisedly encroaching upon this path-way by constructing boundary walls and making building thereon, and the true forum for determination of the dispute is only by way of a civil suit rather than the writ petition, where evidence can be led. During the rainy season, the drain (Budda Nallah) starts over-flowing and a large part of the vicinity of the drain is flooded. Dirty water enters the houses, which also spreads diseases. Respondents have further stated that the public was taken into confidence and majority of the encroachers came forward to co-operate with the implementation of digging of the drain. A notice (Annexure R-1) in the form of Public Notice was pasted at the site informing the public about the project and calling upon them to remove the encroachments within seven days. Munadi war. also done, which is Annexure R-2. The majority of the residents/occupiers voluntarily demolished the construction and in some cases, the residents requested the Municipal Corporation to assist them in the tesk of demolition. Further the respondents have stated that as per Sections 169 and 224 of the 1976 Act, all public sewers, drains, culverts, water courses, public streets, all construction by or for the Corporation along side any public street, pavements, stones and other materials shall vest in the Corporation and thus, stating that this path-way; which is a public street, was in the ownership of the respondent-Corporation, they had a right to demolish it.
6. We have heard the learned counsel for the parties and gone through the record available on the file.
7. Learned counsel for the petitioner has laid stress on Section 269 of the 1976 Act, which is reproduced as under :--
"269 :-- Order of demolition and stoppage of buildings and works in certain cases and appeal :-- (1) 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 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) as may be specified in the order of demolition :--
Provided 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 :
Provided further that where the erection or work has not been completed, the Commissioner may by the same order or by a separate order, whether made at the time of the issue of the notice under the first proviso or at any other time, direct the person to stop the erection of work until the expiry of the period within which an appeal against the order of demolition, if made any be preferred under Sub-section (2).
(2) Any person aggrieved by an order of the Commissioner made under Sub-section (1) may prefer an appeal against the order to the Court of the District Judge of the City within the period specified in the order for the demolition of the erection or work to which it relates.
(3) Where an appeal is preferred under Sub-section (2) against an order of demolition, the Court of the District Judge may stay the enforcement of that order on such terms, if any, and for such period, as it may think fit :
Provided that where the erection of any building or execution of any work has not been completed at the time of the making of the order of demolition shall be made by the Court of the District Judge unless security, sufficient in the opinion of the Court, has been given by the appellant for not proceeding with such erection of work pending the disposal of the appeal.
(4) to (6) xxx xx xx xx xx"
8. 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.
9. During the course of arguments, we asked learned counsel for the parties to negotiate and settle the matter amicably and to come to some sort of a compromise/arrangement, as the digging of the drain is in the interest of the public at large. Learned counsel for the parties agreed that they will try and go for a negotiated settlement. In case the settlement between the parties does not come about, the Municipal Corporation is duty bound to give notice to the petitioner under Section 269(1) of the Act.
With the observations aforesaid, the petition filed by the petitioner is hereby allowed with no orders as to costs.