IN THE HON’BLE HIGH COURT OF C.G. AT BILASPUR w.P. (C) No. @xgk.‘ OF 2009 PETITIONER : gt. Anju Jaiswal, W/o Shri Jugalkishor Jaiswal, aged about 36 years, R/o Near Sapna Talkies, Durga Nagar, Nandini Road, Bhilai, District- Durg (C.G.) VERSUS 1 RESPONDENTS :./ State of Chhattisgarh Through— The Secretary, Urban Development Department, D.K.S. Bhawan, Raipur (C.G.) 2./ Collector, Durg, District— Durg (C.G.) 3. /Municipal Corporation .Bhilai, through— The Commissioner, District— Durg (C.G.) 4. /Administrative Officer, Zone—III, Mother Teresa Nagar, Municipal Corporation, Bhilai District— Durg (C G ) WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA ' ‘ v Mm . if) > HIGH COURT OF CHHATTISGARH : BILASPUR Sinqle Bench: Hon’ble Shri Manindra Mohan Shrivastava, J. W.P. (C) No.2454/2009 Petitioner Smt. Anju Jaiswal Versus State of Chhattisgarh and Others Respondents (Writ Petition under Article 226 of the Constitution of India) A Present: - (y " 'i Shri Prateek Sharma, counsel for the petitioner. Shri V. V. S. Murthy, Deputy AdvocateGeneral for respondents No.1 & 2/State. Shri H. B. Agrawal, Senior Advocate with Ms. Sareena Khan, counsel for respondents No.3 & 4. ORAL ORDER (Passed on 10-02-2011) By this petition, the petitioner calls in question the legality and validity of notice dated 08—05-2009 (Annexure P-1), by which, the respondent-Corporation has required the petitioner to remove encroachment on the road and drain, which according to the respondent—Corporation, is in violation of Section 304, 307 and .322 of the Chhattisgarh Municipal Corporation Act, 1956 (In short “the Act”). 2. Assailing the correctness and validity of notice and proceedings, learned counsel for the petitioner argued that the show cause notice has been issued by the Administrative Officer, Shivaji Nagar, Zone—4, Municipal Corporation, Bhilai, without any jurisdiction as p9wer,toqissue notice under any of the provisions / contained in Section 304, 307 and 322 of the Act vested with the Commissioner. The second submission made by learned counsel for the petitioner is that the respondent—Corporation proceeded to issue impugned notice even without any proper spot inspection and measurement much less measurement by giving any notice to the petitioner. The third submission of learned counsel for the petitioner l \ is that before proceeding to demolish the construction raised by the petitioner, i @ fairness required the respondent-Corporation to first give the petitioner a show cause notice, hold enquiry and then only to take action. The last submission of learned counsel for the petitioner is that the notice dated 06—09-2008 (Annexure R-3 & Annexure R—4-2) was never received by the petitioner and he has come to know about the same only after receiving the reply of the respondent— Corporation. 3. On the other hand, learned counsel for the respondent-Corporation submitted that the construction raised by the petitioner is clearly encroaching upon the public street and drain and the respondent-Corporation upon inspection made by its authorities at the spot, found that the petitioner has raised construction on the land in an illegal manner, and therefore, show cause notice under Section 307(2) of the Act was given to the petitioner on 06—09-2008 as to why the illegal construction be not removed, but‘the petitioner did not reply to the same. Learned counsel for the respondent-Corporation further submitted that in the inspection made on 11 O5 2009 by the Sub Engineer of Zone 4 it was found that the construction raised by the petitioner was beyond sanctioned map (Annexure R 3 & Annexure R-4/4). He further submits that even photographs which have been placed on record, clearly shows that the petitioner’s construction is in excess of the building permission granted to him and the same is projecting over the public drain and street. Further submission of learned counsel for the respondent-gorporation is that the petitioner could avail the remedy of appeal as provided to him under Section 403 of the Act and the petitioner has filed this petition without availing the alternative remedy, hence, this petition is liable to be dismissed on this ground Learned counsel for the respondent Corporation seeks to rely upon the deCiSion of the Supreme Court in the case of Priyanka Estates International Private Limited and Others Versus State ofAssam and Others, (2010)x2 Supreme Court Cases 27. 4. Though, various issues have been raised for consideration ofthis Court, in the opinion of this Court, the impugned notice dated 08-05-2009 (Annexure P-1) cannot be sustained in law as the same has been issued by the sub-ordinate authority of Commissioner other than the Commissioner of the Corporation. A perusal of the provisions contained in Section 304, 307 and 322 of the Act would show that whether it be a case of violation of building plan or a case of encroachment on public street or drain, the competent authority to issue notice for removing construction or to show cause against proposed action of removal is the Commissioner of the Corporation. ln the petition, the petitioner has raised a very specific ground in para 9.2 that the impugned notice is without any jurisdiction. However, in the return, there is nothing to show as to how the concerned officer i.e. the Administrative Officer; Shivaji Nagar, Zone-4, Municipal Corporation, Bhilai derived power exercisable by the Commissioner. Though, learned counsel for the respondent-Corporation submitted that power exercisable by the Commissioner under the Act could be delegated to the Officer under his control in view of the provisions contained in sub section(4) of Section 69 of the , Act, there is neither any such pleading in the return nor any order delegating power of the Commissioner to such Officer, as required under Section 69(4) of the Act, has been placed on record by the respondent-Corporation. Therefore, the impugned notice clearly appears to be withoutjurisdiction and authority under the law. If the order itself is without jurisdiction and authority under the law, relying upon the decision of’ the supreme Court in the case of Whirlpool Corporation versus Registrar of Trade Marks, Mumbai and Others, (1998)8 i SCC' 1, Harbanslal Sahnia and Another vs. Indian Oil Corporation Limited V l and Others, (2003) 2 SCC 107, this Court would not insist on exhausting / i alternative remedy even if such remedy exists under the law. 5. accordingly allowed. The Corporation however would be at liberty to take action on the stated allegation, but strictly in accordance with law. L Sd/— Manindra Mohan Shrivastava Judgg Tumans