CWP No.12913 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No.12913 of 2010 Date of Decision: 31.10.2011 Neeraj Kumar ...Petitioner Vs. State of Punjab & Ors. ...Respondents CORAM HON'BLE MR.JUSTICE A.N.JINDAL, Present: Mr.S.K.Arora, Advocate, for the petitioner. Mr.Baljinder Singh Sra, Addl.A.G.,Punjab. Mr.H.K.Aurora, Advocate, for respondent No.4. --- A.N.Jindal, J . The petitioner Neeraj Kumar has invoked the powers of this court as envisaged under Articles 226/227 of the Constitution of India challenging the order dated 31.5.2010 (Annexure P.11) passed by Director, Local Bodies, Punjab, vide which order dated 26/27.3.2009 (Annexure P.7), passed by Deputy Commissioner, CWP No.12913 of 2010 2 Faridkot, respondent No.3, has been rescinded. Brief history of the case is that Neeraj Kumar is a tenant over the premises including Room No.1 which is on some part of comprised of Property No.51 as shown in the site plan (Annexure P.1). There is other property beyond the wall bearing Nos.50 & 51. Due to deteriorated condition of the said room he had applied for reconstruction of the room as per sanctioned site plan. Accordingly, permission was granted on 19.12.2005 by respondent No.4. Thereafter, the time for reconstruction was extended vide order dated 31.01.2008 up to 30.1.2009. At the time of leasing the property there was no door towards property No.51 but the petitioner under the garb of seeking reconstruction mentioned a door in the wall of adjoining property No.50 in occupation of respondent No.5. When he tried to reconstruct the wall and by opening the door in the adjoining property of Municipal Council i.e. Property No.50, objection was raised, as such the petitioner had to file a suit for permanent injunction, wherein a temporary injunction was granted by Civil Judge, pursuant to which he constructed the wall and opened a door as per the sanctioned site plan. Respondent No.5 filed appeal against the said order before the District Judge, Faridkot. In the meantime, on 13.2.2009 Municipal Council passed a resolution regarding closing of the door as approved by site plan (Annexure P.1). On 10.3.2009, the Director, Local Bodies, Punjab stayed the operation of the resolution and called for the report from respondent CWP No.12913 of 2010 3 No.4, who submitted his report vide letter dated 20.3.2009. Thereafter, on 26.3.2009 Municipal Council, Faridkot while exercising powers under section 132 of the Municipal Act, 1911, stayed the operation of the resolution No.73 dated 13.2.2009. On 29.5.2009 after considering the clarification sent with regard to the proceedings dated 13.2.2009 conducted by Municipal Council, Faridkot, respondent No.2, vide letter dated 29.05.2009 directed the Municipal Council to act upon the resolution in accordance with rules. On 10.3.2009 again clarification was sought regarding said resolution, then again on 29.5.2009, respondent No.4 directed the Municipal Council to act upon resolution. In the meantime, Civil Judge (Junior Division), while accepting the application for interim injunction partly allowed the opening of the door. However, said order was challenged before the District Judge, Faridkot who while partly setting aside the order and partly accepting the appeal held that the petitioner had every right to construct the wall on his own property but he had no right to demolish the common wall and to reconstruct the same etc. and he could not open any door in the common wall. The order passed by Deputy Commissioner, Faridkot was also challenged before Director, Local Bodies, Punjab, Chandigarh. Vide order dated 31.5.2010, the Director, Local Bodies, Punjab upset the order dated 27.3.2009 passed by the Deputy Commissioner, Faridkot and upheld the resolution No.73 dated 13.2.2009 of the Nagar Council, Faridkot. Reply to the petition was filed wherein resolution No.73 CWP No.12913 of 2010 4 dated 13.2.2009 has not been disputed by the Nagar Council. However, it was submitted that the petitioner had also filed another petition bearing Civil Revision No. 6667 of 2009 before this court challenging the order dated dated 22.10.2009 passed by the learned District Judge, Faridkot, whereby interim application filed by him under Order 39 Rules 1 and 2 of the CPC seeking restraint order against respondent No.5 from interfering in the construction and opening of the door was dismissed. In that petition, this court had observed that the order dated 29.5.2009 passed by respondent No.2 was vague and had issued a direction to the Director, Local Bodies, Punjab, to pass a speaking order if he had affirmed, modified or rescinded the order dated 26.3.2009 passed by the Deputy Commissioner. In pursuant thereto, the Director Local Bodies, Punjab had passed speaking order while holding that earlier order of Deputy Commissioner, Faridkot, was not correct. The petitioner is a tenant over property No.51 but he, under the garb of renovation of the room over the said property, got the site plan sanctioned while indicating the door 'D' towards property No.50 which was later on rescinded by the Municipal Council vide resolution No.73 of 13.2.2009. The Director Local Bodies, Punjab has given specific reason for quashing the order passed by the Deputy Commissioner, according to that there was no provision of opening a door in the wall of property No.50 in occupation of respondent No.5 from the very beginning, therefore, question of opening the door towards that side which is not the part of the tenancy of the petitioner, did not CWP No.12913 of 2010 5 arise. Municipal Council has every right to sanction or withdraw the site plan for the construction and reconstruction. Actually, the petitioner had demolished the stair-case in the adjoining property No.50 in occupation of respondent No.5 and as such it was decided by the Nagar Council vide resolution No.296 dated 27.10.2005, to take action against him under the Public Premises Act for his eviction. In that regard, a notice No.739-40 dated 20.3.2005 was served upon him but later on, due to the undertaking given by him that he would reconstruct the demolished portion as per site plan submitted by him and he would also enhance the rate of rent to 50% of the prevalent rent, a liberal view was taken and ejectment was not made. However, at the time of sanctioning of the site plan, the approval with regard to the opening of the wall was mischievously taken, whereas there was no provision of the door from the very beginning. Moreover, it was also affecting respondent No.5 whose consent was never obtained. When objection was raised by respondent No.5 for withdrawing the illegal permission for opening the door in his property, the Municipal Council, while detecting the mischief withdrew the said permission. Petitioner being not the tenant over the premises adjoining the property No.51, was not entitled to have access over the adjoining property. Having heard the rival contentions and having examined the records of the case, it appears that the petitioner is a lessee over property No.51 and at the time of giving him property No.51 on tenancy there was no door in the wall of adjoining property No.50 in CWP No.12913 of 2010 6 occupation of respondent No.5. It is an admitted fact that properties Nos. 50 & 51 are owned by Municipal Council. Property No.50 being not part of the leased premises to the petitioner could not be permitted to be used by him under the garb of permission wrongly granted by the Municipal Council and having been obtained by the petitioner cleverly on the pretext that he would raise construction on room No.1 adjoining the property Nos. 50 & 51. Shri S.K.Sharma, IAS, Director, Local Bodies Punjab, while approving the resolution No.73 dated 13.2.2009 made a detailed report on 31.5.2010. Relevant part of the report reads as under:- “11. From the perusal of record it has come to the notice that the permission which was given by the Nagar Council to the tenant of property No.51 which was in his possession for opening the door in the garb of renovation was wrong from the beginning. Therefore, the resolution No.73 dated 13.2.2009 passed by the Nagar Council whereby it had modified its approval by keeping its earlier approval intact except the new door was correct especially when the learned District Judge Faridkot had held this permission to be illegal vide its final order dated 22.10.2009.” Thus, it is implicitly clear from the report that at the time of inception of tenancy of property No.51, there was no door for having access to property Nos. 50 & 51 and the petitioner had applied for CWP No.12913 of 2010 7 renovation, therefore, the Municipal Council did not bother if he wanted to make changes in the leased premises but the petitioner having evil design got inserted clause with regard to the construction of door as such. On the objection raised by respondent No.5, the Municipal Council took note of it and withdrew the sanction vide resolution No.73 dated 13.2.2009 qua opening of the door and allowed the remaining site plan to be unchanged. Sanction which was illegally obtained by the petitioner could be withdrawn which is detrimental to their rights. The said resolution was approved by the Director Local Bodies, Punjab vide order dated 31.5.2010. Even otherwise, property Nos.50 & 51 is owned by Municipal Council and the petitioner has no right to open the door in the wall towards property No.50 in occupation of respondent No.5. No grounds to interfere. Dismissed. (A.N.Jindal) 31.10.2011 Judge rp