Punjab-Haryana High Court
The Municipal Corporation vs Shri Arjan Kumar And Anr. on 8 July, 1993
Equivalent citations: (1993)104PLR582
JUDGMENT Amarjeet Chaudhary, J.
1. This judgment of mine will dispose of CWP No. 1239 of 1991 (Municipal Corporation v. Sewa Singh & another), CWP No. 5506 of 1992 (Municipal Corporation Amritsar v. Maltej Bhan & another) and CWP No. 6065 of 1992 (Municipal Corporation v. Arjun Kumar & another) involving identical questions of law and facts written statement was filed in CWP No. 6065 of 1992. As such the facts have been taken from that writ petition.
2. In these writ petitions, the petitioner-Municipal Corporation Amritsar, has prayed for quashing the order of the District Judge, Amritsar, dated 10-5-1989, copy Annexure P-8 to the writ petition, vide which the appeal filed by respondent Arjan Kumar under Section 269 sub sections (2) &(3) of Punjab Municipal Corporation Act 1976 against the order of the Commissioner, Municipal Corporation, Amritsar dated 22-5- 1987, was accepted.
3. The case of the petitioner, as set up in this writ petition, is that Arjan Kumar, respondent No. I had made encroachment on the Municipal Corporation land i.e. public property by making unauthorised construction on the area covered by "Fasil Wall by fixing a shutter & window in the said wall on Ground Floor and windows on 1st floor towards outer circular road without seeking permission or sanction from the petitioner corporation. -
4. It is averred in the writ petition that the said 'Fasil Wall' which is known as 'Safety Wall' existed arround the city of Amritsar since time immemorial, the width of which is ranging from 5 feet to 7 feet and the site underneath is public property standing in the name of the petitioner-Corporation in the revenue record
5. An FIR No. 397/2 was lodged on 19-3-1986 by the Building Inspector of the petitioner corporation against respondent No. 1 for making encroachment on the public property belonging to the petitioner-corporation and raising unauthorised construction thereon On the same day, the Commissioner, Municipal Corporation, Amritsar, issued a composite notice under Sections 269(1) & 2"C(1) of the Punjab Municipal Corporation Act, 976 to respondent No. 1 to show cause as to why the unauthorised construction should not be demolished within 72 hours after the receipt of the notice. A copy of the notice is Annexure P-1 to the writ petition. According to the petitioner Corporation, respondent No. 1 did not furnish any reply to the said Show Cause Notice- As a consequence, an order under Sub-section (I) of Section 269 of the Act was passed by the Commissioner, Municipal Corporation, Amritsar, ordering the demolition of the unauthorised construction.
6. Against the order of Commissioner, the respondent filed an appeal in the Court of Addl. District Judge, Amritsar in which he tad taken the following pleas : -
(a) That originally the property was evacuee property and was purchased by ;the appellant in the year 1955-56.
(b) That in 1970 71 there was no "Fasil Wall" in existence.
(c) That the building was constructed after a plan had been submitted
(d) That the shutter had been fitted in the year 1970-71 and it is being used as an outlet of shop.
(e) That the learned Commissioner had exceeded his jurisdiction etc etc.
7. The petitioner-corporation contested the appeal and controverted the allegations contained therein by way of filing a reply in which the petitioner-Corporation had taken a specific stand that the construction was raised over the area comprising the "Fasil Wall" which was a public property and the same was made without proper permission and sanction of the petitioner-Corporation. This appeal was accepted by the Additional District Judge, Amritsar and the order of the Commissioner dated 23-4-1986 ordering demolition of unauthorised construction was set aside vide his order dated 1-12-1986. While allowing this appeal, it was observed by the learned Additional District Judge, Amritsar that this order would not debar the respondent, now petitioner, from taking further faction as prescribed under the law after making fresh enquiry and serving proper notice under the law. In pursuance of the observations made in the said order, the petitioner-Corporation again served a no ice dated 10-3-1987, copy Annexure P 5, on the respondent requiring him to show cause why the illegal construction raised by him be not ordered to be demolished within 72 hours of the receipt of this notice. In this notice, it was mentioned in clear terms that in case no reply is filed within the stipulated time, it would be presumed that respondent had nothing to say in reply and proper orders would be passed for demolition. Pursuant to this notice, impugned order dated 22-5-1987, copy Annexure P-6, was passed asking the respondent to demolish the unauthorised construction within 3 days failing which it would be demolished by the petitioner-corporation.
8. Against the impugned order, an appeal was preferred by the respondent in the Court of District Judge, Amritsar. This appeal was accepted and the impugned order of demolition dated 22-5-1987 passed by the Commissioner was set aside by the District Judge, Amritsar vide his judgment dated 10-5-1989.
9. Aggrieved against this judgment, the petitioner-Municipal Corporation, Amritsar, has filed the present writ petition
10. The learned Counsel for the petitioner contends that some of the contentions and counter-contentions raised material issues which required judicial determination by the Court below. The Counsel further contends that procedure of a civil suit ought to have been followed by the District Judge, Amritsar while disposing of the appeal of respondent No. I. The District Judge did not follow any procedure as envisaged under Section 384 of the Act. As such the entire proceedings have been vitiated.
11. On the other hand, the learned Counsel for respondent No. 1 has raised a preliminary objection regarding the maintainability of the writ, petition on the ground that there was no resolution to file this writ petition.
12. On consideration of the matter, I am not inclined to entertain the preliminary objection as this petition was admitted after notice of motion. In my view, the objection taken by the respondent did not find favour with the Division Bench admitting the Writ Petition. As such the preliminary objection taken by the respondent now cannot be gone into.
13. I have gone through the relevant provisions to the Punjab Municipal Corporation Act, 1976. Under Section 269(3) District Judge has been empowered to examine the legality of a notice issued under Section 269(1) which requires a person to demolish an unauthorised construction Sub section (4) bars the jurisdiction of any other Court to deal with matters which are covered by Section 269(1) Finality is attached to the order passed by the District Judge. The question as to whether the District Judge while disposing of the matter is required to give an opportunity to the aggrieved person to lead evidence in support of his claim, is required to be examined in this case. Before examining this question, it would be relevant to note the provisions of Section 384 of the Act This Section provides that the procedure provided in the Code of Civil Procedure 1908 in regard to suits shall be followed by the District Judge as far as possible For facility of reference, Section 384 is reproduced below :-
"384. General Powers and procedure of the Court of District Judge -The procedure provided in the Code of Civil Procedure, 1908, in regard to suits shall be followed as far as it can be made applicable, in the disposal of applications, appeals or references, that may be made to the Court of the District Judge under this Act or any bye-law made thereunder".
14. The requirement to pass a speaking order and to act in a judicial manner is a well recognised principle. The matter was examined in Bhagat Raja v. Union of India, A.I.R. 1967 S.C. 1606 and it was pointed out that authorities deciding a Us between the parties should follow the rules of natural justice and should support their orders by giving reasons. This can be done only if opportunity is given to the parties to lead evidence.
15. The matter is not res integra In Tarlok Singh v. The Municipal Corporation and Anr., (1986-2) 90 P. L. R. 540 (S.C ) the Supreme Court examined the matter arising out of proceedings taken by the Municipal Corporation, Amritsar, under Section 69(1) and the scope of Section 384 of the Punjab Municipal Corporation Act, 1976. Even though the question in the above case was as to whether additional evidence can be led by resorting to Order 41 Rule 27 of the Code of Civil Procedure and even though Supreme Court came to the conclusion that such a power did not vest in the District Judge, yet the Supreme Court proceeded to observe that in an appropriate case whenever the District Judge feels satisfied he may give opportunity to the parties to lead evidence as it would be open to the District Judge to apply the procedure as far as it can be made applicable in the facts and circumstances of each case.
16. The observations made by the Supreme Court in the above case are clear and as such when a citizen dispute the validity of notice issued by a Corporation constituted under the Punjab Municipal Corporation Act, 1976, he would be well within his rights to lead evidence In this eventuality, the District Judge should permit the concerned parties all possible assistance by applying the provisions of the Code of Civil Procedure and also giving an opportunity to the Corporation to rebut the evidence. The procedure to be adopted may not be as elaborate as in a suit but the principle that "justice should not only be done, but seem to have been done" should be observed.
17. The objection that Resolution of the Corporation is required before filing the writ petition, is without any force as under Section 394 of the of the 1976 Act, the power to institute legal proceedings vests with the Commissioner of the Corporation. As such present writ petition filed through the Commissioner is in order.
18. In view of the aforesaid discussion, impugned order dated 10-5-1989 passed by respondent No.2, copy of which is Annexure P-8 in all the three writ petitions, is quashed. Case is remanded to the Appellate Authority i.e. respondent No. 2 to take a fresh decision in accordance with: law. Parties through their counsel are directed/to appear before respondent Mo. 2 on August 25, 1993 to receive further directions. Parties to bear their own costs.