Civil Writ Petition No.5543 of 2011 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.5543 of 2011 Date of Decision:28.03.2011 Raghbir Singh and another ......Petitioners Versus Municipal Corporation, Amritsar, through its Commissioner .....Respondent CORAM: HON'BLE MR. JUSTICE MEHINDER SINGH SULLAR. Present: Mr.Anil Chawla, Advocate, for the petitioners. **** M EHINDER S INGH S ULLAR , J.(oral) Tersenessly, the facts, culminating in the commencement, relevant for disposal of the instant writ petition and emanating from the record, are that petitioners-Raghbir Singh son of Mohinder Singh and another, purchased the land bearing khasra Nos.3824/1-3240/1930, vide sale-deed dated 07.03.1991. The site plan(Exhibit “AX”) submitted by them was stated to have been sanctioned by the Municipal Corporation, Amritsar (for brevity “the respondent-Corporation”) on 01.04.1991, in view of the provisions of The Punjab Municipal Corporation Act, 1976 (hereinafter to be referred as “the Act”). The respondent-Corporation claimed that as the construction was not in accordance with the sanctioned plan and the petitioners have illegally started running Sonu Marriage Palace in the residential area, therefore, notices under Sections 269 and 270 of the Act were issued to them on 20.02.1998 and 05.03.1998 with regard to the illegal construction on first and second floor of the building. Since, the petitioners did not remove the encroachment/un-authorised construction, so the impugned demolition order dated 04.06.1998(Annexure P-1) was passed by the respondent- Civil Writ Petition No.5543 of 2011 2 Corporation. 2. Aggrieved by the demolition order(Annexure P-1), the petitioners filed the appeal, which was dismissed as well by the Additional District Judge, Amritsar(for short “the Appellate Court”) by way of impugned judgment dated 24.02.2011(Annexure P-2). 3. The petitioners, Raghubir Singh, partner of and M/s Sonu Palace, still did not feel satisfied and preferred the instant writ petition, challenging the impugned orders(Annexures P-1 and P-2), invoking the provisions of Articles 226/227 of the Constitution of India. 4. After hearing the learned counsel for the petitioners, going through the record and legal position with his valuable help and after considering the entire matter deeply, to my mind, there is no merit in the present writ petition. 5. Ex facie, the argument of the learned counsel that, in any case, if the petitioners have violated the provisions of bye-laws under the Act and the terms and conditions of the sanctioned site plan(Exhibit “AX”), then the respondent- Corporation ought to have compounded the offences and regularised already constructed Marriage Palace, is neither tenable nor the observations of this Court in case Cantonment Board, Ambala Cantt. Versus S.S.Dass, 1992(1) PLR 622, are at all applicable to the facts of the present case, wherein respondent-plaintiff owned Bungalow No.102, situated on the Mall Road, Ambala Cantt. The Cantonment Board issued notice for demolition of two bath-rooms and two latrines in the Bungalow. The plaintiff therein has challenged the correctness of the notice on the ground that the constructions were old constructions and were not un-authorised. It was not disputed that the constructions were in existence for the last more than 25 years. 6. On the peculiar facts and in the circumstances of the case, the Cantonment Board was directed to compound the violation of the un-authorised constructions. Possibly, no one can dispute with regard to the aforesaid Civil Writ Petition No.5543 of 2011 3 observations, but the same would not come to the rescue of the petitioners in the present controversy. 7. As is evident from the record that petitioner-Raghubir Singh son of Mohinder Singh, Smt.Sheela Rani, wife of Mohinder Singh and Smt.Rani Marwaha, wife of Ashwani Kumar, purchased the land in dispute to the extent of 1/3rd share each, by virtue of sale-deed dated 07.03.1991. Although, the site plan (Exhibit “AX”) submitted by them was sanctioned on 01.04.1991 for the construction of residential house only, but they have illegally raised un-authorised constructions and started running Sonu Marriage Palace in it. According to the respondent-Corporation, the petitioners started illegal constructions on first floor of the building, without getting the building for Marriage Palace approved and, accordingly, show cause notices were served on them under Sections 269 and 270 of the Act. As they did not stop the illegal constructions and use, despite statutory notices, therefore, demolition order dated 04.06.1998(Anneuxre P-1) was rightly passed, because the constructions were in violation of the sanctioned plan. The use and structure of the sanctioned plan even on the ground floor as well as on the first and second floor were stated to have been changed by the petitioners to use the building as Marriage Palace for commercial purpose in this regard. 8. Above being the position on record, now the short and significant question, though important, that arises for determination in this case is, whether the petitioners have violated the provisions of bye-laws and the Act. 9. Having regard to the contention of the learned counsel for the petitioners, to me, the answer is in affirmative, as the petitioners have clearly violated the legal provisions in the following manner. 10. As is clear that Chapter XIV of the Act enumerates the provisions of erection and re-erection of the building in the Corporation area. Section 258 of the Act postulates that no person shall erect or commence to erect any building, or execute any of the works specified in Section 260 except with the previous Civil Writ Petition No.5543 of 2011 4 sanction of the Commissioner, nor otherwise than in accordance with the provisions of this Chapter and of the bye-laws made under this Act in relation to the erection of buildings or execution of works. 11. Sequally, Section 259 of the Act further posits that every person who intends to erect a building shall apply for sanction by giving notice in writing of his intention to the Commissioner in such form and containing such information as may be prescribed by bye-laws made in this behalf and every such notice shall be accompanied by such documents, fees and plans, as may be so prescribed. 12. Likewise, Sections 260 to 268 of the Act regulates the procedure of apply, sanction and refusal of the building plans. Sections 269 and 270 of the Act escalates the service of notice and passing of demolition order, in case, any person has illegally constructed the un-authorised construction, contrary to the sanctioned plan, bye-laws and rules under the Act. 13. A co-joint reading of these provisions would reveal that no person can erect or commence to errect or re-erect a building, without the approval of sanctioned plan, in accordance with the bye-laws and rules under the Act. 14. It is not a matter of dispute that no doubt the petitioners have obtained the approval of site plan(Exhibit “AX”) by means of order dated 25.03.1991(01.04.1991) to construct the first floor as a residential house, but they have started illegal constructions on first and second floor and also has started using the entire building as a Marriage Palace for commercial purpose, without obtaining any permission/sanction under the Act and bye-laws. The respondent- Corporation claimed that such major violations/un-authorised constructions cannot legally be compounded under the Act, as urged on behalf of the petitioners. 15. In this manner, as the construction of the petitioners was un- authorised, so the respondent-Corporation has every right to take legal action against them, in accordance with the provisions of the Act. The mere fact that the petitioners obtained the electricity, water and telephone connections, ipso facto is Civil Writ Petition No.5543 of 2011 5 not a ground to condone the violations committed by the petitioners. Therefore, the contrary arguments of the learned counsel for the petitioners “stricto sensu” deserve to be and are hereby repelled under the present set of circumstances. 16. The matter can be viewed from a different angle. The petitioners have challenged the demolition order(Annexure P-1) and the Appellate Court provided full opportunity to the parties to lead their evidence in order to substantiate their respective pleas. The appeal was dismissed by means of detailed impugned order dated 24.02.2011(Annexure P-2). The operative part of which is, as under:- “Even if the Sonu Marriage Palace has got telephone, electric and water connections, but the same does not help Raghbir Singh to think that he was authorised to raise un-authorised construction. Moreover, while getting the site plan sanctioned, Raghbir Singh had not disclosed that he and his partners were going to start the construction of a Marriage Palace under the name and style of Sonu Marriage Palace, rather the site plan submitted has clearly mentioned it to be a building only, as if the same was a residential building. Had the appellant mentioned in his application or in the site plan that he was going to start marriage palace, then the Municipal Corporation Authorities could have not sanctioned the site plan Ex.AX. So, it seems that Raghbir Singh got the site plan Ex.AX sanctioned on 25.03.1991 in the garb of residential building, but later on, converted the same into marriage palace, without giving any intimation to the Municipal Corporation authorities. The said area is a part of T.P.Scheme No.39 and as such, it meant for residential dwelling houses and not meant for commercial establishment. The respondent has placed the copy of the memo dated 15.3.1991. All this shows that the area in question was residential or commercial under T.P.Scheme No.39. Here, the learned counsel for the appellant has vehemently argued that Prem Raj Hospital, clinic of Dr.Daljit Singh and Kamal Palace are also situated in the very same area. Here, it has to be mentioned that some other commercial establishments have also been raised in the residential area then the said establishments are also to be taken for task under the law, but the appellant cannot get benefit of the fact that some other commercial establishments are also there in that area. So, establishing a marriage palace in a residential area, that also after playing fraud upon the Municipal Civil Writ Petition No.5543 of 2011 6 Corporation is an illegal act and as such, cannot be compounded by the Municipal Authorities. The rulings referred to by the learned counsel for the appellants are not applicable in the facts of the present case as the ruling given in M/s Rajatha Enterprises(supra) concerns only with construction in excess of permissible area and the second ruling in the case of Dula Ram's case(supra) was given as in that case breaches of statutory provisions relating to construction of building were minor ones or formal breaches. But in the instant case, the appellant and his co-sharers have constructed Sonu Marriage Palace in a residential area, that also by playing fraud upon the authorities by way of showing the site plan to be that of a residential building in the year 1991, then in the year 1998, the appellant has raised un-authorised construction of his first floor on the ground floor on the Sonu Marriage Palace, which was in prohibition of law.” 17. Thus, the Appellate Court having scrutinised the evidence on record in the right perspective, recorded a finding of fact that petitioner-Raghbir Singh submitted the site plan(Exhibit “AX”) and got its approval on 25.03.1991, for the construction of residential house and subsequently in the garb of site plan, illegally converted the building into Marriage Palace, in complete violations of the bye-laws and provisions of the Act. Meaning thereby, the Appellate Court has recorded the valid reasons in this relevant connection. Such judgment, containing the valid reasons, cannot possibly be set aside, in exercise of writ jurisdiction of this Court, unless the same is perverse or without jurisdiction. As, no such patent illegality or legal infirmity has been pointed out by the learned counsel for the petitioners in this context, therefore, the impugned orders(Annexures P-1 and P-2) deserve to be and are hereby maintained in the obtaining circumstances of the case. 18. No other point, worth consideration, has either been urged or pressed by the learned counsel for the petitioners. 19. In the light of aforesaid reasons, as there is no merit, therefore, the instant writ petition is hereby dismissed as such. March 28, 2011 (MEHINDER SINGH SULLAR) seema JUDGE Civil Writ Petition No.5543 of 2011 7 Whether to be referred to reporter?Yes/No