IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CWP No.1415 of 2007 Reserved on 7.3.2008 Date of decision 27.3.2008 Smt. Sangeeta Sachdeva Petitioner Vs. Municipal Corpn. and anr. Respondents Coram: The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 No. For the Petitioner: Mr.Ajay M. Goel, Advocate. For the respondents: Mr.Shrawan Dogra, Advocate, for respondent No.1. Mr.Satyan Vaidya, Advocate, for respondent No.2. Rajiv Sharma, J. A challenge has been laid by way of this petition to the order passed by the learned District Judge (Forests), Shimla in CMA No.9-S/14 of 2002 dated 2.7.2007. The brief facts necessary for the adjudication of this petition are that the petitioner had reported the matter to respondent No.1 to the effect that respondent No.2 had carried out illegal construction by constructing one flush latrine, measuring 4.26 square meters. The Commissioner, Municipal Corporation passed the order on 15.12.2001 holding therein that 1 Whether reporter of local papers is allowed to see the judgment? No. 2 the respondent No.2 has not obtained any permission from the Corporation for undertaking the construction and as such the construction of the latrine block was without permission. He declared the construction carried out by respondent No.2 illegal. He accordingly ordered the respondent No.2 to demolish the illegal construction of latrine block within 7 days from the date of the order. A notice was also issued to the respondent No.2 on 16.1.2002. An appeal was filed by respondent No.2 against the orders dated 16.1.2002 before the learned District Judge, Shimla. The learned District Judge, Shimla remanded the matter to the Commissioner, Municipal Corporation, Shimla on 30.11.2002. He had categorically held in his judgment that there was no merit in the appeal. However, still he had remanded the matter to the Commissioner, Municipal Corporation with the observation that the property which was ordered to be demolished must be identified properly by depicting the structure in a map drawn to scale accurately. He had further directed that the unauthorized construction be distinctively indicated in the notice in accordance with prescribed rules. Consequently the Commissioner, Municipal Corporation Shimla issued a notice to respondent No.2 under Section 253 of the H.P. Municipal Corporation Act, 1994. The respondent No.2 was directed to appear before the Commissioner, Municipal Corporation, Shimla on 27.3.2004. The matter came up before the Commissioner on 20.10.2004. The Commissioner came to the conclusion that the respondent No.2 had constructed a toilet without permission of the Corporation and while doing so encroachment has also been made upon Khasra No.762. He ordered the respondent No.2 to remove the unauthorized construction raised by her, within a period of 7 days. Thereafter the notice was also issued to 3 respondent No.2 to demolish the construction raised by her within 7 days from the date of issuance of the order. An appeal was filed against the order dated 20.10.2004 by the respondent No.2 before the learned District Judge, Shimla. The learned District Judge (Forests), Shimla however again remanded the matter to the Commissioner, Municipal Corporation on 2.7.2007. Mr.Ajay Mohan Goel, learned counsel for the petitioner had strenuously argued that the order passed by the learned District Judge (Forests), Shimla on 2.7.2007 is not sustainable in the eyes of law. He then contended that the matter could not be remanded back by the learned District Judge (F) since the respondent No.2 has failed to place any material on record to establish that she had sought permission to raise the construction. He further contended that the fact whether there was valid building permission or not could be established by way of written orders only and it could not be proved by oral submission by respondent No.2 as observed by the District Judge. Mr. Shrawan Dogra, learned counsel appearing on behalf of respondent No.1 had supported the orders dated 20.10.2004 and notice dated 4.11.2004 issued by the Commissioner, Municipal Corporation, Shimla. He further contended that respondent No.2 has not sought prior permission to raise the construction and the construction raised by respondent No.2 is liable to be demolished. Mr. Satyan Vaidya, learned counsel for respondent No.2, however had supported the order dated 2.7.2007. He then submitted that his client had only undertaken minor repairs in the existing building and for that purpose no permission was required. 4 I have heard the learned counsel for the parties and have gone through the records carefully. What emerges from the facts discussed here in above is that the Commissioner had earlier passed the order against respondent No.2 on 15.12.2001 holding construction raised by her illegal. The learned District Judge strangely enough had remanded the matter to the Commissioner, Municipal corporation, Shimla on a very very flimsy ground that the property was not identifiable and precise notice was required to be issued to the respondent No.2. Once the learned District Judge had held that there was no merit in the appeal he could not remand the matter to the Commissioner. The Commissioner, Municipal Corporation issued a fresh notice to respondent No.2 on 4.2.2004 and consequently the order was passed on 20.10.2004. The order dated 20.10.2004 is based on the demarcation report carried out by the Revenue Department. It has come in the report that the respondent No.2 had constructed toilet unauthorizedly over khasra No.763 one wall of which had been constructed in Khasra No.762 by pushing 1 feet in khasra No.762 which is a public path. The site in question was properly identified and marked during the demarcation. It is apparent from the order passed by the Commissioner on 20.10.2004 that the parties along with Junior Engineer of the corporation were present at the spot at the time of demarcation. The Junior Engineer as per the observation made by the learned District Judge in his judgment dated 30.11.2002 had drawn the plan of the construction as per scale. The order passed by the Commissioner, Municipal Corporation is a speaking and well reasoned order based on the demarcation report. The respondent No.2 has failed to establish before the Municipal Corporation as well as before this court that any prior building permission was obtained as per 5 the provisions of the Municipal Corporation Act, 1994 before raising of the construction of latrine block. It is mandatory for the parties to seek prior permission before venturing to raise construction within the territorial jurisdiction of the Municipal Corporation, Shimla. The permission is accorded in writing by the concerned authorities exercising the powers under the Municipal Corporation Act, 1994. The learned District Judge has erred gravely in coming to the conclusion that the petitioner could establish the grant of building permission by leading oral evidence. The respondent No.2 could not establish by oral evidence that any building permission was accorded. If there was a building permission the same could be placed on record. The Municipal Corporation, Shimla had carried out the demarcation afresh on the basis of the observation made by the learned District Judge in his judgment dated 30.11.2002. The exercise undertaken by the Corporation to identify the structure on the basis of demarcation that too in the presence of parties, cannot be faulted with. The fact of the matter is that the respondent No.2 has failed to place on record the copy of building permission either for raising new or undertaking repair work. Consequently, the writ petition is allowed. The order passed by learned District Judge dated 2.7.2007 in CMA No.46-S/14 of 2006/04 is set aside. The respondent No.1 is directed to implement order dated 20.10.2004 read in conjunction of order dated 4.11.2004 within a period of six weeks. The petitioner is entitled to costs quantified at Rs.3000/-. March 27, 2008 (g) ( Rajiv Sharma ), J