R.S.A.No. 485 of 2008 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 485 of 2008 Date of decision: 31.7.2009 Jugal Kishore and another ......Appellants Versus Municipal Corporation, Amritsar .......Respondent CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr. Ashwani Gaur,Advocate, for the appellants. Mr.Sandeep Khungar, Advocate, for the respondent. **** SABINA, J. Plaintiffs Jugal Kishore and Varsha Rani filed a suit for permanent injunction which was decreed by the Civil Judge (Jr.Divn.) Amritsar vide judgment and decree dated 17.1.2003. In appeal, the said judgment and decree were set aside by the Additional District Judge (Adhoc), Fast Track Court, Amritsar vide judgment and decree dated 8.2.2008. Hence, the present appeal by the plaintiffs. R.S.A.No. 485 of 2008 2 Brief facts of the case, as noticed by the lower appellate Court in para Nos. 2 and 3 of its judgment, are as under:- “2 The plaintiffs/respondents filed the suit alleging that they are owners of the disputed khokha situated in Galli No.8, Bagh Raman and, Amritsar, as they have purchased the same vide sale deed dated 14.12.1989 from Sh.Partap Singh. They are carrying on the business of charcoal firewood under the licence granted by the defendant. The said bussiness is being done for the last 30/40 years and even licence fee has been paid upto 1995-96. Earlier Tara Chand father of the plaintiff No.1 was carrying on business in the premises for the last 30/40 years and had been paying the licence fee. Then the plaintiff No.1 being the only son started carrying on the business of his father as a tenant under the original owner namely Partap Singh. Later on plaintiff purchased the property and became the owner. Khokha is being used for the last 30/40 years for storage of fire wood. There are walls on the western and northern side of the plot. For the protection of fire wood, there is also a boundary wall. As per Section 269(1) of the Punjab Municipal Corporation Act, 1976, no property or building can be demolished by the defendant corporation unless a demolition order is passed by the competent authority R.S.A.No. 485 of 2008 3 after giving proper opportunity to the constructor or owner but in this case, no proper opportunity was afforded. No new construction had been raised by the plaintiff which the defendants are threatening to demolish. No demolition order has been passed nor the same has been served. The said area where khokha of the plaintiff is situated is not covered by any Town Planning Scheme. The officials of the opposite party came to the spot and threatened to demolish the property in question. He will suffer irreparable loss in case khokha is demolished. There is no other efficacious remedy available as such the plaintiff had to file this suit. 3. The suit was contested by the defendant and in reply preliminary objections were taken that this Court has no jurisdiction to entertain and try the suit; a notice under Section 269(1) of the Punjab Municipal Corporation Act, 1976, bearing No.348/1 dated 15.3.1994 was served upon the plaintiff and no reply was filed by the plaintiff and the demolition order was passed; the suit in the present form is not maintainable; plaintiff has got no locus standi to file the suit; no notice under Section 396 of the Punjab Municipal Corporation Act has been served; the suit is bad for non-joinder of necessary parties; the Town Planning Scheme has been sanctioned under the order of R.S.A.No. 485 of 2008 4 the Govt. of Punjab and as such Punjab Govt. is a necessary party; the suit is barred by limitation and plaintiff has got no right, title or interest in the property. Regarding merits, it was denied that the plaintiffs are owners of the disputed khokha. It was pleaded that the said alleged sale deed dated 14.12.1989 is a sham transaction. It was denied that the plaintiff is working at the site for the last 30/40 years or he has got a licence. Moreover, the licence taken under Section 343 of the Punjab Municipal Corporation Act, 1976, cannot regularise the illegal possession. No licence was ever given to the plaintiff for use of open space. All the allegations made by the plaintiff are denied and it was alleged that the boundary wall constructed by the plaintiff is a recent one and as such notice was served. The plaintiffs were in the knowledge that notices were issued to them and they did not tender any explanation and they filed this suit. The suit is liable to be dismissed.” On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether the plaintiff is entitled to permanent injunction prayed for? OPP 2. Whether this Court has no jurisdiction to try and decide the present suit? OPD R.S.A.No. 485 of 2008 5 3. Whether the suit is not maintainable in the present form? OPD 4. Whether notice under u/s 396 of the PMC Act was required to be served upon the defendants before filing the present suit? OPD 5. Whether the suit is bad for nonjoinder of necessary parties? OPD 6. Relief. ” After hearing learned counsel for the parties, I am of the opinion that the present appeal deserves to be dismissed. In the present case, the plaintiffs alleged that they were owners of the disputed Khokha as they had purchased the same vide sale deed dated 14.12.1989 from Partap Singh. The case of the defendant, on the other hand, was that the plaintiffs had raised boundary wall in the street. Admittedly, demolition order was passed by the Commissioner Ex.D-4 on 25.3.1993. As per Section 269 (2) of the Punjab Municipal Corporation Act, 1976, 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 District Judge of City within the period specified in the order for the demotion of the erection or work to which it relates. The demotion order is passed by the Commissioner under Section 269 (1) of the Act. The plaintiffs instead of filing an appeal had filed a suit for permanent injunction. R.S.A.No. 485 of 2008 6 In these circumstances, learned Additional District Judge rightly held that the suit of the plaintiffs was not even maintainable as the remedy available to the plaintiffs was to challenge the order of demolition by filing an appeal to the District Judge. No substantial question of law arises in this regular second appeal. Accordingly, the same is dismissed. (SABINA) JUDGE July 31, 2009 anita