IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. R.S.A. No. 97 of 2011. Reserved on: 25.03.2011. Decided on: 20.04.2011. _____________________________________________________ Praveen Nehru. …Appellant. -Versus- Municipal Corporation, Shimla through its Commissioner. …Respondent. Coram: The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 No. __________________________________________________________ For the appellant. : Mr. Y.P. Sood, Advocate. For the respondent : Nemo. ---------------------------------------------------------------------------------------- Rajiv Sharma, Judge: This Regular Second Appeal is directed against the judgment and decree dated 06.12.2010, passed by the learned Additional District Judge, Shimla, H.P. in Civil Appeal No. 1-S/13 of 2009. 2. Material facts necessary for adjudication of this Regular Second Appeal, are that the appellant-plaintiff (hereinafter referred to as ‘the plaintiff’ for convenience sake), has alleged that he alongwith his brother, namely, Tarun Nehru and mother, namely, Sheela Nehru are co-owners of land comprised in Khewat Khatauni No. 2/2, Khasra No. 1441, situated at Mauja Kareru, Tehsil and District Shimla, H.P., as per Jamabandi for the year 1 Whether the reporters of the local papers may be allowed to see the judgment? No. - 2 - 1997-98. The predecessor-in-interest of the plaintiff had constructed a small single storied structure (hereinafter called as suit property), for the purpose of storing grass and other purposes subservient to agriculture. Plaintiff came to know about the passing of order dated 01.11.2003 for demolition of the structure situated on the suit land by M.C. Shimla, under Section 253 of the Himachal Pradesh Municipal Corporation Act, 1994 (hereinafter referred to as the Act for brevity sake), without complying with the provisions of the Act and principles of natural justice. His brother and mother had filed an appeal against the order passed by respondent No. 3 on 01.11.2003 before the learned District Judge, Shimla. The same was dismissed on 17.08.2005. The Municipal Corporation was executing the order dated 01.11.2003. Hence, the suit was filed for restraining the M.C., Shimla from executing the aforesaid order and further for declaring the order dated 01.11.2003 as well as the order dated 17.08.2005, passed by the learned District Judge, Shimla as wrong, illegal and not binding on the rights of the plaintiff. 3. The respondent-Corporation has filed the written statement. It has taken preliminary objection that the suit was bad for want of notice, under Section 392 of the Act and the suit was barred under Section 11 of the Code of Civil Procedure. On merits, it was contended that the structure was constructed without approval as well as in violation of the norms laid down by National High Way Authority. The Junior Engineer of the Corporation visited the construction site and noticed that an unauthorized construction was carried out on the spot and four RCC columns were raised on the spot without any permission - 3 - from the replying defendant. Thereafter, the proceedings under Section 253 of the Act were initiated against Smt. Sheela Nehru and Shri Tarun Nehru. 4. According to the respondent-defendant (hereinafter referred to as ‘the defendant’ for convenience sake), the order dated 01.11.2003, passed by the Commissioner and order dated 17.08.2005, passed by the learned District Judge, Shimla are valid and had attained finality. The trial Court framed the issues on 21.09.2006. The suit was dismissed by the trial Court on 02.12.2008. Plaintiff preferred an appeal before the learned District Judge, which was dismissed on 06.12.2010. 5. Mr. Y.P. Sood, learned counsel for the appellant has strenuously argued that the judgment and decree passed by both the Courts below are contrary to the settled principles of law. According to him, his client has not been heard by the Commissioner while passing the order dated 01.11.2003. He further contended that the suit was maintainable in the present form. 6. I have heard Mr. Y.P. Sood, learned counsel for the appellant and gone through the record carefully. 7. What emerges from the facts pleaded by the parties, is that the order was passed by the Commissioner of the respondent- Corporation on 01.11.2003 vide Annexure DW-1/D. An appeal bearing C.M.A. No. 79-S/14 of 2003 was preferred against the order dated 01.11.2003 before the learned District Judge, which was dismissed on 17.08.2005. 8. Plaintiff has appeared as PW-1. He has admitted in his cross-examination that originally a cow-shed was made of - 4 - stone and mud, and presently RCC columns and slab have been raised. He has also admitted that no prior permission has been sought from the Municipal Corporation, Shimla for raising RCC columns and slab. He denied the suggestion that he was aware of the proceedings initiated by M.C. Shimla. 9. PW-2 Shri Puran Dev has deposed that the predecessors of the plaintiff were having agricultural land at Chakkar. On the disputed land, there were two Kacha rooms, where the ancestors of the plaintiff used to tether their cattle. These rooms were also used for storing agricultural produce, grass and agricultural implements. In his cross-examination, he also admitted that in the property in dispute, RCC columns and slab have been laid. In the suit property, the plaintiff was running shop for the last 10 to 12 years. He has also admitted that Kararu was never a Gram Panchayat. He also admitted that the plaintiff has no cattle. 10. Shri Daler Singh, Junior Engineer has appeared on behalf of the defendant as DW-1. According to him, the area of Karuru falls in his jurisdiction. The plaintiff, in his Khasra No. 1441, situated at Karuru, has un-authorizedly constructed one storeyed house and proceedings were initiated by the Municipal Corporation, Shimla. Notices were issued on 31.01.2002 vide Ex. DW-1/A and Ex. DW-1/B, under Section 254 of the Act. Mother of the plaintiff filed reply to the same, which is Ex. DW-1/C. The Municipal Corporation has ordered the demolition of structure vide Ex. DW-1/D, dated 01.11.2003. 11. Plaintiff has admitted in his examination-in-chief that his brother Arun Kumar was missing for the last 12 to 13 years. - 5 - In his cross-examination, he has admitted that the land in question was being looked after by him alongwith his mother and brother. PW-2 Puran Dev has also deposed in his chief examination that the shed in question was repaired by the family of the plaintiff. Plaintiff has also asserted that only repairs were undertaken. The permission is required to be sought, even if repairs are undertaken under the Municipal Corporation Act. It cannot be believed that the plaintiff was not aware of the proceedings initiated by the Municipal Corporation, Shimla qua the suit property, in which, the brother and mother of the plaintiff have participated. In fact, as noticed above, the mother of the plaintiff has filed reply Ex.DW-1/C. Plaintiff has also not disclosed when he came to know about the proceedings and the order passed by the defendant-Corporation. He has pleaded that he came to know about these proceedings through one of his relatives. But, he has not named any such relative nor examined him. Plaintiff has not placed any evidence on record that he had been living separately from his family. Plaintiff has throughout the knowledge of proceedings initiated under Section 253 of the Himachal Pradesh Municipal Corporation Act, 1994. The expression used in Section 253 is ‘person’. Plaintiff could have proved that he had been living separately from his family by bringing the copy of Parivar register and any other contemporaneous material on record. Even PW-2 Puran Dev has not deposed that plaintiff was living separately from his mother and brother. In fact, since the brother of the plaintiff had been missing for the last 10 to 12 years, it can safely be presumed that he and his mother are looking after the property in dispute. The - 6 - Court is of the view that the suit filed by the plaintiff was barred in view of the Section 392 of the H.P. M.C. Act, 1994. Plaintiff filed the suit for declaration and permanent prohibitory injunction. If it was a simple suit for injunction, then the notice was not required to be issued before filing the suit, as per Sub-section (3) of Section 392 of the Act. In the instant case, it was necessary for the plaintiff to issue notice to the respondent under Section 392 of the Act before instituting the suit. 12. Accordingly, in view of the observations and discussions made hereinabove, there is no merit in this Regular Second Appeal and the same is dismissed, so also the pending application(s), if any. No costs. (Rajiv Sharma) Judge April 20, 2011. (bhupender) - 7 -