Regular Second Appeal No. 3195 of 2008 1 In the High Court of Punjab and Haryana, at Chandigarh. Regular Second Appeal No. 3195 of 2008 Date of Decision: 4.7.2011 Pawan Kumar Soni and Another …Appellants/Plaintiffs. Versus Didar Singh and Others …Respondents CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA. Present: Mr. Vikas Bahl, Advocate for the appellants. Mr. Jagpal Singh, Advocate for Mr. Harpreet Singh Gharuan, Advocate for legal heirs of respondent No.1. Mr. Surinder Kapoor, Advocate for respondent No.2. None for legal heirs of respondent No.3. Kanwaljit Singh Ahluwalia, J. (Oral) Rajinder Parshad had filed a suit for permanent injunction praying that respondents-Municipal council, Nawanshahar, Didar Singh and Bhushan be restrained from demolishing the toilet and the room constructed by the plaintiff in the suit property and further forcibly carving out ventilators and windows through walls as described in the plaint. It was pleaded that the construction was in existence since the time immemorial and from generation to generation, the plaintiff was enjoying the exclusive peaceful possession for more than 30 years. The defendants, in their written statements, raised a plea that the plaintiff Regular Second Appeal No. 3195 of 2008 2 had encroached upon the public property and the Municipal Council had already issued a notice on 24.4.1998 under Section 195-A of the Punjab Municipal Act, 1911 (hereinafter referred to as “the Act”) for demolition of the unauthorized construction raised over the public property. After conclusion of the pleadings from the parties, the following issues were drawn by the trial Court:- “1. Whether the plaintiff is owner in possession of the property, which is shown in green and red colour in the site plan? OPP 2. Whether the plaintiff is entitled to permanent injunction restraining the defendant from demolishing the toilet and the room which are built by the plaintiff in the suit property and further restraining the defendants from carving out any ventilators and windows in the wall, which is marked as A, B? OPP 3. Whether the present suit is bad for want of notice? OPD 4. Whether the suit is not maintainable in the present form? OPD 5. Whether the plaintiff is barred by his act and conduct, from filing the present suit? OPD. 6. Whether the plaintiff has got no locus Regular Second Appeal No. 3195 of 2008 3 standi to file the present suit? OPD. 7. Relief.” The trial Court relied upon an order dated 17.10.1973 Ex.P4, passed by the Sub Divisional Magistrate, Nawanshahar, in an earlier litigation wherein an objection filed by the plaintiff was answered and Sardari Lal, on behalf of the Municipal Council, admitted that the demised premises is a private place. All the issues were decided in favour of the plaintiff. The trial Court decreed the suit with costs and permanently restrained the defendants from demolishing the toilet and room built by the plaintiff in the suit property except in due course of law. However, the trial Court has clarified that it shall not preclude the Municipal Council to decide the proceedings arising out of notice issued under Section 195-A of the Act. Learned counsel for the appellants has drawn my attention to the notice Ex.P3 to state that since without obtaining prior permission of the Municipal Council, as required under Section 189 of the Act, the plaintiff had started construction of the room situated in the Mohalla, therefore, the same being unauthorized, is to be demolished. Against the judgment and decree of the trial Court dated 15.10.2005, the appellants and Didar Singh, defendant, have preferred separate appeals. The lower Appellate Court held that the statement made by Sardari Lal, Secretary of the Municipal Council, Nawanshahar, will not bind the Council as he was not authorised to make the statement and no resolution to this effect was passed by the Municipal Council. Thus, the Appellate Court reversed the findings of the lower Court qua ownership of the plaintiff but maintained his possession thereof and Regular Second Appeal No. 3195 of 2008 4 accordingly partly decided issue No.1 in favour of the plaintiff. However, findings on other issues were affirmed and dismissed both the appeals vide its judgment and decree dated 30.11.2007. Hence, the present appeals. Learned counsel for the Municipal Council has submitted that even if the statement of Sardari Lal, Secretary, is taken into consideration, he has only stated that the demised premises is a private building. It is nowhere proved that the plaintiff is the owner of the property. Furthermore, notice Ex.P3 specifically states that the appellants had started an unauthorized construction without obtaining prior permission from the Municipal Committee. Both the Courts below have also granted an injunction in favour of the plaintiff to the extent that the construction, raised by the plaintiff, shall not be demolished by anybody except in due course of law. Both the Courts below have rightly not eclipsed the right of the Municipal Council, Nawanshahar, to proceed further in pursuance of notice under Section 195-A of the act. Learned counsel for the appellants has submitted that the following substantial questions of law arise for consideration of this Court:- i) That issuance of notice under Section 195-A of the Act amounts to admission that the appellants are owners of the property. ii) That notice under Section 195-A of the Act cannot be issued after six months of the completion of the construction. I am of the view that both the aforesaid questions of law do not Regular Second Appeal No. 3195 of 2008 5 arise on the facts of the present case. Notice Ex.P3 in itself states that the appellants had started the construction without obtaining prior permission from the Municipal Council, therefore, the same being unauthorized, is to be demolished. A perusal of notice Ex.P3 reveals that every construction made by a person should be sanctioned by the Municipal Authorities and had to be in consonance with the bye-laws and rules. Since it has been stated in the notice that the appellants have raised an unauthorized construction in the suit property, therefore, it cannot be said that the mandatory period of six months has elapsed and Municipal Council is barred to issue notice. Furthermore, the findings of learned trial Court that the appellants (legal heirs of the plaintiff Rajinder Prashad) are the owners of the suit property have been set aside. Even if the statement of Sardari Lal, Secretary of the Municipal Council, is accepted to the extent that the demised premises is a private building, then in the private property, the construction has to be raised in consonance with the rules and bye-laws of the Municipal Council. Therefore, notice under Section 195-A of the Act is to be replied by the appellants. To this extent, no interference is warranted in the findings recorded by both the Courts below. Hence, the present appeal is dismissed. (Kanwaljit Singh Ahluwalia) Judge July 4, 2011 “DK”