Punjab-Haryana High Court
Sanjay Mittal vs State Of Haryana And Others on 17 February, 2011
Author: Mehinder Singh Sullar
Bench: Mehinder Singh Sullar
CWP No. 370 of 2010 &
CWP No. 535 of 2010 -1-
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
1. CWP No. 370 of 2010
Sanjay Mittal ...Petitioner
versus
State of Haryana and others ...Respondents
2.. CWP No. 535 of 2010
Om Pati Devi ...Petitioner
versus
State of Haryana and another ...Respondents
Date of decision : 17.02.2011
CORAM: HON'BLE MR. JUSTICE MEHINDER SINGH SULLAR
Present: Mr. Arvind Singh, Advocate
for the petitioners.
Mr. Narender Singh , D.A.G., Haryana
for respondent No 1.
Mr. Kuldip Singh, Advocate, for
Mr. G.S. Hooda, Advocate
for respondent No. 2
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Mehinder Singh Sullar, J. (Oral)
As identical questions of law and facts are involved, therefore, I propose to decide the indicated writ petitions, vide this common order, in order to avoid the repetition. However, the factual matrix, which needs a necessary mention for the limited purpose of deciding the sole controversy involved in these writ petitions, has been extracted from (1) CWP No. 370 of 2010 titled as Sanjay Mittal vs. State of Haryana and others
2. The contour of the facts, culminating in the commencement, relevant CWP No. 370 of 2010 & CWP No. 535 of 2010 -2- for disposal of the present writ petitions and emanating from the record, is that petitioners purchased plots in question, situated within the Municipal limits of Municipal Council, Panchkula (respondent No. 2) (for brevity "respondent- council") and applied for the sanction of the site plans, which were sanctioned by respondent No.2, by virtue of letters dated 20.11.2009 (Annexure P1) & 15.10.2009 (Annexure P2), in view of the provisions of The Haryana Municipal Act, 1973 (hereinafter referred to be as"the M.C Act"). The petitioners claimed that after the sanction of the site plans, they started raising the constructions over the plots as per terms and conditions of the sanctioned plan and spent huge amount. They were shocked to receive the orders dated 04.01.2010 (Annexures P3 & P4), issued by the Executive Officer of respondent-council (respondent No. 2), by means of which the sanctions of the site plans of the petitioners were cancelled without issuing any notice and further directed them to demolish the entire constructions within a period of 7 days.
3. The petitioners did not feel satisfied and preferred the present writ petitions, challenging the impugned orders (Annexures P3 & P4), invoking the provisions of Article 226/227 of the Constitution of India, inter alia, pleading that neither any show cause notice was issued nor any order of demolition was passed or served to the petitioners, before passing the impugned orders of cancellation of sanction of site plans by the Executive Officer of respondent-council. According to petitioners that, as its Executive Officer did not have the jurisdiction to pass such orders without any show cause notice, therefore, the impugned orders were stated to be illegal, arbitrary, without jurisdiction and against the statutory provisions of the Act. On the basis of aforesaid allegations, the petitioners sought the quashment of impugned orders (Annexures P3 & P4), in the manner depicted herein above.
4. The respondents contested the claim of the petitioners and filed the written statement, inter alia, pleading certain preliminary objections of CWP No. 370 of 2010 & CWP No. 535 of 2010 -3- maintainability of the writ petitions, cause of action and locus standi of the petitioners. It was claimed that since the petitioners have started raising the constructions in violation of the terms and conditions of the sanctioned site plans, so the impugned orders (Annexures P3 & P4) were stated to have rightly been passed by the Executive Officer of the respondent-council. Be that as it may but the committee did not produce the copy of any show cause notice or demolition orders before passing the impugned orders (Annexures P3 & P4), in this context. However, it will not be out of place to mention here that the contesting respondents have stoutly denied all other allegations contained in the writ petitions and prayed for their dismissal.
5. Having heard the learned counsel for the parties, having gone through the record with their valuable assistance and after bestowal of thoughts over the entire matter, to my mind, the instant writ petitions deserve to be partly accepted, in this regard.
6. As is clear, Section 201 of the M.C. Act regulates the provisions of sanctions of the building plans which postulates that no person shall erect or re- erect or commence to erect or re-erect any building without the sanction of the committee. Section 203 deals with the building scheme. Section 205 of the Act empowers the committee to sanction or refuse the erection or re-erection of the buildings within its jurisdiction.
7. Sequelly, Section 208 of the Act posits that where the erection of any building or execution of any work has commenced or is being carried on, or has been completed without or contrary to the sanction as required by sub-section (1) of Section 201; or without notice as required by sub-section (2) of Section 201; or when sanction has been refused; or in contravention of any provisions of this Act or bye-laws made thereunder, the committee, the Executive Officer or the Secretary, as the case may be, may, within 6 months from the completion of the building, in addition to any other action that may be taken under this Act, make an CWP No. 370 of 2010 & CWP No. 535 of 2010 -4- order directing that such erection work shall be demolished by the person at whose instance the erection of work has been commenced or is being carried on or has been completed, within such period (not being 'less than five days and more than fifteen 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:
8. Likewise proviso to this action escalates that no order of demolition can be made unless the person has been given by means a notice served in such a manner as the committee, the executive officer or the secretary, as the case may be, may think fit, a reasonable opportunity of showing cause as to why such order shall not be made:
9. A conjoint reading of these provisions would reveal that order of demolition and show cause notice are required to be issued/delivered to the petitioners before cancelling the sanction already granted.
10. Such thus being the position on record, now the core question, that arises for determination in the present petition is, as to whether the Executive Officer of the respondent-council has the power to direct the demolition of the building, without following the due procedure under the M.C. Act or not?
11. Having regard to the rival contentions of the learned counsel for the parties, to me, no demolition order can be passed, without issuing show cause notice and delivering demolition order, in this respect. This matter is not res- integra and is well-settled.
12. An identical question came to be considered by a Division Bench of this Court in Smt. Santosh vs. State of Punjab, 1999(3),PLR, 397. Having interpreted the para materia provisions of the Act, 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 CWP No. 370 of 2010 & CWP No. 535 of 2010 -5- 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".
13. Again reliance in this regard can also be placed to a judgment of this Court dated 09.02.201 rendered in CWP No. 20951 of 2008 titled as M/s Majestic Hotels Limited, Ludhiana vs. Municipal Corporation, Ludhiana and others.
14. The ratio of law laid down in the aforesaid judgments mutatis mutandis is applicable to the facts of the present case and is the complete answer to the problem in hand. Meaning thereby, issuance of notice and delivery of demolition order are the conditions precedent before ordering the demolition of the building in question and these provisions are mandatory in nature.
15. What is not disputed here is that petitioners started construction after obtaining the sanction of the site plans (Annexures P1 & P2).The Executive Officer of respondent-council, instead of issuing show cause notice or passing a demolition order, as contemplated under Section 208 of the Act, straightway jumped to cancel the sanction and illegally directed the petitioners to immediately remove the construction, by way of impugned orders (Annexures P3 & P4). In this manner, the impugned orders (Annexures P3 & P4) are not only illegal, arbitrary and against the statutory provisions of the Act but against the principles of natural justice as well and cannot legally be maintained, in the obtaining circumstances of the case.
16. In the light of aforesaid reasons, the instant writ instant petitions are partly accepted. Consequently, the impugned orders (Annexures P-3 and P-4) are hereby quashed, in this context.
17. Needless to mention here that the respondents may initiate fresh CWP No. 370 of 2010 & CWP No. 535 of 2010 -6- proceedings against the petitioners for the alleged violations of terms and conditions of the sanctioned plan/rules, after issuing a show cause notice and delivering the demolition orders and to take appropriate action, in accordance with law.
(Mehinder Singh Sullar) Judge February 17, 2011 G.Arora Whether to be referred to reporter?Yes/No