Civil Writ Petition No.20951 of 2008 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Date of decision : 9.2.2011 M/s Majestic Hotels Limited, Ludhiana ..........Petitioner Vs. Municipal Corporation, Ludhiana and others .......Respondents CORAM: HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR Present : Mr.Ashok Aggarwal, Senior Advocate, with Mr.V.K.Sachdeva, Advocate, for the petitioner. Mr.Harsh Aggarwal, Advocate, for respondents No.1 and 2. Nemo for respondent No.3. M ehinder Si ngh S ullar , J. (Oral) The crux of the facts, which needs a necessary mention for the limited purpose of deciding the core controversy, involved in the instant writ petition and emanating from the record, is that petitioner M/s Majestic Hotels Limited, Ludhiana, a public limited company, had purchased the land in question, vide registered sale deed dated 19.4.1990 situated at Bhai Bala Chowk, Ferozpur Road, Ludhiana, for constructing a 5 Star Hotel. 2. Sequelly, the Municipal Corporation, Ludhiana-respondent No.1 (for brevity “the respondent-Corporation”) duly approved and sanctioned the building plans of the hotel, vide its sanction/letter dated 12.6.1992 (Annexure P-2). Certain violations in building plan pointed out by the Corporation were compounded and petitioner company was stated to have deposited an amount of Rs.1,27,370/-, by means of receipt dated 12.6.1992 (Annexure P-3) in this context. The petitioner- company was stated to have constructed a multi-storeyed 5 Star Hotel, strictly in accordance with the sanctioned building plan and Hotel became operational w.e.f. 27.12.1999 after its completion. 3. The petitioner-company claimed that the respondent-Corporation Civil Writ Petition No.20951 of 2008 2 issued the impugned notice/order dated 5.12.2008 (Annexure P-1) to it at the instance of respondent No.3 due to political rivalry, proposing to seal its building of the hotel. 4. The petitioner-company did not feel satisfied and instituted the instant writ petition, challenging the validity of the impugned order (Annexure P- 1), invoking the provisions of Articles 226 and 227 of the Constitution of India. 5. Levelling a variety of allegations and narrating the sequence of events, in all, according to the petitioner-company, the respondent-Corporation did not have the power to seal its building of the hotel and hence the impugned order/notice (Annexure P-1) issued at the instance of respondent No.3- political rival of the Managing Director of the petitioner-company was termed to be illegal, arbitrary and without jurisdiction. On the basis of aforesaid allegations, the petitioner-company sought the quashment of impugned order (Annexure P-1), in the manner indicated hereinabove. 6. The respondent-Corporation contested the claim of the petitioner- company. Contesting respondents No.1 & 2 filed their joint written statement, inter-alia, pleading certain preliminary objections of, maintainability of the writ petition, locus standi and cause of action of the petitioner. The contesting respondents claimed that since the petitioner-company has violated the terms & conditions of the sanctioned building plan, so, the respondent-Corporation has rightly issued the notice (Annexure P-1) to it under Section 273 of The Punjab Municipal Corporation Act, 1976 (for brevity 'the Act”). It will not be out of place to mention here that the contesting respondents have stoutly denied all other allegations contained in the writ petition and prayed for its dismissal. 7. Having heard the learned counsel for the parties, having gone through the record and relevant legal provisions with their valuable assistance and after bestowal of thoughts over the entire matter, to my mind, the instant writ petition deserves to be partly accepted in this regard. Civil Writ Petition No.20951 of 2008 3 8. As is evident from the record, the respondent-Corporation issued notice dated 5.12.2008 (Annexure P-1) to the Managing Director of the petitioner- company, which, in substance, is as under :- “And where as the building inspector vide report dated 25.11.2008 has reported that during the survey of the area/building it has been noticed that you in violation of sanction permit, referred above has changed the user of area reserved for parking for use as services and other than parking. As such you have willfully, knowingly & intentionally harmed the public interest & violated the provisions of Punjab Municipal Corporation Act, 1976 & the building bye-laws made there under. Your this illegal act has caused immense loss to the public interest as the vehicles are parked outside the hotel premises leading traffic hazard & congestion. Your illegal act is also violation of section 273(i) i.e. change of user without permission, the change of user of area reserved for parking is non compoundable offence user rule 3.15(b) of the building Bye-laws 1997. You are hereby informed that Municipal Corporation has proposed to seal your building so long as the un-authorised use of land/area reserved for parking is again put to use for the same purpose apart from prosecuting you in the competent court for committing the grave and serious offence of change of land user referred above. If you have any explanation to this proposal, the same may be submitted in writing to the Commissioner Municipal Corporation Ludhiana, within a period of three days from the date of receipt of this notice.” 9. What is not disputed here is that the impugned notice (Annexure P-1) was issued under Section 273 of the Act, which postulates that no person shall, without the written permission of the Commissioner, or otherwise than in conformity with the conditions, if any, or such permission convert or allow the conversion of one kind of tenement into another kind. Sub section (5) of this Section further posits that if the owner or occupier of the building does not comply with the order within the period specified therein, the Commissioner shall take such steps in relation to the building as to prevent all cause of danger therefrom. 10. A conjoint reading of these provisions would reveal that before Civil Writ Petition No.20951 of 2008 4 taking any action under this Section, the Commissioner is required to pass an order and if the owner or occupier of any building does not comply with the order within the period specified therein, only then a penal action can be taken against the erring person that too after affording the opportunity and within the ambit of Section 273 of the Act and not otherwise. 11. Again, it is not a matter of dispute that no such order has been passed by the Commissioner in the instant case. Although, learned counsel for the respondents vehemently attempted to support the action of the respondents, but he did not point out any provisions of law authorizing the Assistant Town Planner, exercising the delegated powers of Commissioner, to issue notice/order proposing to seal the building. Thus, as the Assistant Town Planner has slipped into legal error and exceeded his jurisdiction, therefore, the impugned order/notice (Annexure P-1) is not only illegal and arbitrary, but against the statutory provisions of the Act, as well and cannot legally be sustained in the obtaining circumstances of the case. 12. In the light of aforesaid reasons, the instant writ petition is partly accepted with costs. Consequently, the impugned notice/order (Annexure P-1) is hereby quashed in this respect. 13. Needless to mention that the respondent-Corporation may take appropriate fresh action against the petitioner-company for the alleged violations of the terms & conditions of the sanctioned plan/rules, after issuing show cause notice/order, as contemplated under Section 273 of the Act in this relevant connection. (Mehinder Singh Sullar) Judge 9.2.2011 AS Whether to be referred to reporter?Yes/No