v.^-' y.(8SS' ^^t^ ^'y'-r'-'""J...- ••";C,^-r);f"^fa..--""" ,AVJ '>) 1 V\.^.-" ^7 ny;3.b.--- THE HIGH COUHT QF JUDICATURE AT SILASPUR ^v!\^.l. CHHATTISGARH W.P, N0, ^o^ /2006 saa HSHj •w: •^ •'s. 'i^ PBTITIONBR RESPONDBNTS -co^ \\\^ ^.^8PUR %|' \:ssw^ 3>ks^ ,^'"S" A '''i^^*'— •Sr-a. ~/y '^y ^•s'^'.^y -^e Sujan Singh Sengar,;,;Aged about 72 years, S/Q* Sundar Sinsh Sensar. R/Q. Villase Kedarpur, Ambikapur, Surguja (CG) VERSUS 1] State of Chhattisgarh, Througb: Collector, Ambikapur, Surguja (CG) 21 Municipal Corporation, Ambikapur, Througb: Corninissioner, Ambikapur, Distt. Surguja (CG) 31 The Chief Executive Officer. Municinal CorpQration; Arabikapur, District Surguja (CG) 41 Assistant Engineer, Municipal Corporation, Ambikapur, District Surguja (CG) 5] S.D.O. Ambikapur, District Surguja (CG). 61 Director, Town & Countrv Planning, Raipur, Distt. Raipur (CG() WRIT PBTITION UNDBR ARTICLB 226/227 OF THE CONSTITUTION OF INDIA :!;" fj l^-—- 's '%. '^..^ I1 •^^ er^^ 6' HIGH COURT OF CHHACTfS^GARH : BILASPUR ^ Sinale Bench: Hon'bleShjii Manindra Mjohan Shrivastava, J. WntPetition No.307 6f2006 Petitioner Respondents Sujan Singh Sengar Versus State of Chhattisgarh and Others (Writ Petition underArticle 226/2270fthe Constitution oflndia) Present: - Shri Manoj Paranjpe, counsel for the petitioner. Shri Ajay Dwived', Deputy Gdvernment Advocate for the State/respondents No. 1, 5 & 6. Shri B. D. Guru, counsel for respondents No.2 to 4. ORAL ORDER (Passedon 19-04-2011) By this petition, the petitioner has called in question the correctness, legality and vafidity of order dated 10-01-2006 (Annexure P-12) passed by the respondent No.4 as also the subsequent action of the respondent-Corporation and its authorities in demolishing part of the building structure belonging to the petitioner. 2. The genesis of the dispute giving rise to the instant petition is that the petitioner ownsland in Khasra No.48/1 & 48/5 admeasuring 21 dismil (o.21 acre) situated at Ring Road, Mission Chowk, Ambikapur. According to the petitioner, the land was purchased by a registered sale deed in the year 1970 and part of thatwas purchased in the year 1971. After purchase, the petitioner got his name mutated in the revenue records. Relevant records to that effect are placed on record vide Annexure P-1 to P-4. It is the case of the petitioner that the petitioner got the land demarcated by the revenue authorities and relevant records to that effect as also the map has also been placed on record as Annexure P-5. Further ^\ assertion of the petitioner is that the petitioner applied for grant of building permission along with map and permission was granted to the petitioner to raise the construction according to the sanctioned map vide order dated 26-07-1972 (Annexure P-6), whereafter the petitioner has constructed building on his own '•^.' land. 3. On 18-09-1982, the Tahsildar had initiated proceedings for eviction under Section 248 of the Land Revenue Code, 1959 on the ground that the petitioner encroached upon the government land. In those proceedings, the Revenue Inspector submitted a report that no encroachment was made on the government land whereupon the Tahsildar dropped the eviction proceedings vide its order dated 04-02-1983 (Annexure P-10). For the purpose of management of his property, the petitioner had executed power of attorney in favour of Ramdayal Singh Bhadoriya, who along with his son Manoj Bhadoriya, manages the property. 4. The respondent-Assistant Engineer of the Corporation issued a notice on 10-01-2006 (Ahnexure P-12), wherein it was stated that the petitioner has encroached upon and constructed building on the Ring Road, Mission Chowk, Ambikapur without any permission and without any information, which has caused obstruction on the public road and also adversely affecting the traffic, and therefore, the petitioner is required to remove the construction immediately, failing which, the Corporation would proceed to take action under Section 305, 322 and 323 of the Chhattisgarh Municipal Corporation Act, 1956 (In short "the Act"), Notice was issued in the name of Ramdayal Singh Bhadoriya, Power of Attorney holder of the petitioner. The same was served on the son of Ramdayal Singh Bhadoriya on 11-01-2006. A request was made by Manoj Bhadoriya S/c Ramdayal Singh Bhadoriya to the Assistant Engineer, Municipal Corporation, /•;•'' '^1 /^ ii f-~.^< s .s^^*--. ";^ 1 l'^-"" JJ ^/.i ^. ^\ Ambikapur, to grant a month's time and the Assistant Engineer granted a month's time to remove the construction, which is reflected from the endorsement made on the notice dated 10-01-2006. Thereafter, Manoj Singh Bhadoriya, S/o Ramdayal Singh Bhadoriya, Powjer of Attorney holder of the petitioner submitted an objection on 12-01-2006 (Annexure P-13), wherein it was stated that construction has been raised on the land owned by the petitioner according to thesanctioned map and building permission granted earlier. It was also stated in the objection to the proposed action that earlier also, certain proceedings on the allegation of encroachment was initiated, but later on, upon enquiry, no encroachment on any government land was found, and therefore, the proceedings were dropped. However, on 14-01-2006, six shops and the office of Manoj Singh Bhadoriyawas demolished. The demolition even affected a portion of the residential house also. .It is further case of the petitioner that the then Additional Collector, assaulted Manoj Singh Bhadoriya. 5. Learned counsel for the petitioner contended that the action of the respondent-Corporation and its authorities is illegal and in excess of Jurisdiction and authority vested in them under the law, because the petitioner was not given any notice to show cause against the proposed action of demolition and in a high ^ handed manner as a bolt from blue, the impugned order dated 10-01-2006 was issued directing the petitioner to demolish 'the construction and on 4th day, demolition had taken place. He submits that there was no material available with the respondents, on the basis of which, the proposed action could be taken on the assumption that the petitioner had encroached upon the public street warranting action in exerdse of police power under Section 305, 322 & 323 of the Act. He further submits that the petitioner was entitled to one show cause notice and he ought to be afforded an opportunity of hearing before issuing impugned order dated 10-01-2006, but that was not done. He further submits that l^jl^'l, '^/-/ fc from the high-handed action of the respondent authorities of the Corporation, it is reflected that even though, the respondent authorities had granted a month's time to remove the construction, yet six shops were demolished on the 4 day. In support of hissubmission, learned counsel for'the petitioner relied upon the Judgment of the Supreme Court in the case of Ahmedabad Municipal Corporation v. Nawab Khan Gulab Khan and others, AIR 1997 Supreme i. Court 152 and order dated 15-03-2011 passed bythis Court in Writ Petition (C) No 3044 of 2009 (HarishChandra Singhania versus State of Chhattisgarh & Others). 6. On the other hand, learned counsel for the respondents No.2 to 4- Municipal Corporation submitted that the petitioner's case thaf he had dujy obtained sanction for construction of building and there existed building permission in his favour, itself is highly doubtful for more than one reason. It is contended that building permission relied upon by the petitioner has been issued by the President of the Municipal .Council, Ambikapur, but the same does not bear signature ofthe Chief Municipal Officer. It is further submitted that neither in the map (Annexure P-4) nor in the map attached therewith, either Khasra Number or Survey Number has been mentioned, and moreover, there is no signature of qualified Sub Engineer or Planner in the map, on which, the petitioner places reliance. It is next contended that even assuming that there was a sanction, it was only for construction of residential building, whereas the petitioner had constructed shops, and therefore, construction is in violation of the sanctioned map and it was for this reason, the respondent-Corporation proceeded to demolish the construction. Learned counsel further submitted that the impugned action has been taken by the respondent-Corporation in public necessity and interest, in as much as because of the shops constructed by the petitioner, a blind curve has been created, which was required to be removed in 's. •^ (\ order to maintain smooth and safe traffic. It is also submitted that there were serious traffic problem because of the activjties carried out in the shops, and therefore, it became necessary to ease the traffic congestion in the area. Learned counsel for the respondent-Corporation- further contended that the petitioner had effective and efficacious remedy of filing appeal and pray for suspension of the order of demolition as provided under Section 403 of the Act. It is further submitted that according to the Town and Country Planning Department, wtdth of the Ring Road is 120 Feet (Annexure R-2). Lastly, it is submitted that this petition was fited by the petitioner on the pleadings that the petitioner intended to file a civil suit and needed some breathing time and prayer has also been made to this effect as also the petitioner has already enjoyed interim protection granted bythis Court, therefore, the petitioner is not entitted to invoke )urisdiction of this Court for adjudication of controversy involved in the matter. 7. Learned State counsel has supported the case of the respondent- Corporation and has submitted that the action taken by the respondent- Corporation is in accordance with law. 8. The~petitioner has filed this petition way back in the year 2006. From the : grounds urged in the petition, it appears that one of the main ground to challenge the action of the respondent-Corporation is that the respondent-Corporation has proceeded to pass the impugned order of demolition without affording any opportunity of hearing to the petitioner. It is apparent that the respondent proceeded hastily to demolish the construction raised by the petitioner and in that emergent situation; the petitioner approached this Court and was also afforded jnterim protection against further demolition. Therefore, at this stage, 1 do not "t^. ^<t, .<a, 1; I'^s^lj .••?' '..3 "'; .^~ ^ consider it expedient in the interest of justice to throw the petition on the ground ofexistence of alternative remedy offiling appeal. The next submission of learned counsel|E@r the respondent-Corporation that the petitioner had pleaded that he intended to file a civil suit and as the formalities may take some time, during which, demolition may continue, and therefore, the petitioner approached this Court, may be a relevant consideration for this Court to exercise its discretion to entertain or not to entertain the writ petition, but not an absolute bar. The petitioner through this petition had certainly ventilated the grievances against the action of the respondent in issuing the order of demolition and demolishing the construction raised by the petitioner. The petitioner has also raised the grievance that without consideration of all the objections, after issuance oforderdated 10-01-2006, the respondents proceeded to demolish and it has been asserted that the petitioner was not heard. The petitioner has made various prayer in the writ petition, which include prayer for quashing of order dated 10-01-2006 as also prayer for issuance of an direction against the respondent authorities to restrain them from demolishing the building or part ofthe building, and merely because the petitioner had also made a prayer for grant ofthree months time to file a civil suit and till then, prayed for protective order, 1 am not inclined to dismiss the petition only on this ground for the reasons, which 1 shall deal herein below. In the facts and circumstances of the case,' 1 am inclined to consider the grievance of the petitioner rather than directing the petitioner to avail other remedies for which pleadings and prayer have been made by the petitioner in this petition. 9. The petitioner has stated in the writ petition that he is the owner of the land. The ownership of the petitioner has not been disputed by the respondent- Corporation and its authorities. The fact that, after purchase of the land, the ^f^'n. !F^^ % -•"' ] S ^ name of the petitioner was mutated in the revenue records has also not been disputed. The petitioner has also placed on record sanction granted in his favour on26-07-1972 (Annexure P-6). The aforesaid document prima facie show that the petitioner was granted building permission aiti9 it contains signature of Chief Municipal Officer and states that the permission has been granted by the President ofthe Munidpality. Along with the building permission, sanctioned map has also been attached. Therefore, what 1 find is that there was a building permission granted to the petitioner and map was also sanctioned. 10. The respondents have also not disputed the fact that in the past, though proceedings under Section 248 of the Land Revenue Code were initiated, the proceedings were finally dropped by the Tahsildar vide its order dated 04-02- 1983 (Annexure P-10) on the basis of the report of the Revenue Inspector that no encroachment on government land was found by the petitioner. The report of Revenue Inspector also reflects that the allegations of encroachment were examined with reference to the Ring Road. 11. Notice dated 10-01-2006 ofthe respondent-Corporation is clearly a notice for removal of construction on the allegation that the petitioner has encroached upon and raised certain construction over and above the public sfreet in the name of Ring Road, Mission Chowk, Ambikapur. The impugned notice alleges that on account of such encroachment, the traffic and public way is obstructed. It is, therefore, apparent that the action has been initiated against the petitioner on the allegation of encroachment upon the public street, and that is the reason why, the respondents specifically referred to the provisions contained in Section 305, 322 and 323 ofthe Act. From the contents ofthe notice, it is nowhere stated that the action was initiated against the petitioner on the allegation that the construction raised bythe petitioner is in violation of building permission or that it A&''" ^&^^. '''£.. ^^tte.a;^^ f ^SS-y v-.--f S ''<!Sy:jsf' f:^essf:7f3^:ie:i' v^o was without any permission. A complete reading of the notice leads only to this conclusion that action was initiated on the allegation that the petitioner had encroached upon the public street. However, in ^ie' return, which has been filed by the respondent-Corporation, the respondent-Corporation and its authorities have failed to demonstrate that the petitioner had encroached upon any public street. The report of Revenue Inspector placed on record by the petitioner as Annexure P-9 shows that width of Ring Road is 40 feet. There is no authentic document placed on record to show that the widening of the road was undertaken under the provisions of law by acquiring land including the land ofthe petitioner. In fact, the entire emphasis ofthe respondent-Corporation in its return, has been that the construction raised by the petitioner is in violation of the building map and that the sanction for construction itself is doubtful and does not inspire confidence. Therefore, it is apparent that without there being any material jyailable with the respondent-Corporation that the petitioner had encroached ion any public road or any public street, the impugned notice dated 10-01-2006 was issued. 12. The petitioner, through the son of his power of attorney holder, submitted an objection also, which contains the aforesaid relevant facts. The respondent authority ought to have gone into the same and made some enquiry before proceeding to demolish the construction. In the absence of there being any material to show that the petitioner had encroached upon the public street, recourse to the provisions contained in Section 305, 322 & 323 of the Act is also clearly illegal. If the case of the respondent-Corporation is that the petitioner raised construction on his own land but either without building permission or in violation of building permission, the proper course of action was to initiate proceedings under Section 307 ofthe.Act, wherein the Commissioner is required to issue notice to the person against whom, it is alleged that he has raised \. ^' construction without sanction or in contravention ofthe promises of the sanetion. In the present case, no notice as required under sub section(2) of Section 307 of the Act was issued to the petitioner requiring him to show cause against removal/alteration or pulling down the building. ^ 13. Learnedcounsel for the petitioner has rightly submitted that under any circumstance, the petitioner was required to be given a proper notice against the proposed action. The Supreme Court in the case of Ahmedabad Municipal Corporation (supra) has also emphasized the need that even encroachers are entitled to notice Before any action of demolition is taken. The case of the petitioner stands on a much better footing, therefore, the respondent authorities ought to have acted fairiy in giving the petitioner a notice against the proposed action. 14. The respondents did not give any notice to the petitioner before issuing order dated 10-01-2006 and even before this Court, they could not place any material to demonstrate that the petitioner had encroached upon the public street. An attempt has been made to persuade this Court that the Ring Road is either 80 feet wide or 120 Feet, which is reflected from map (Annexure R-2). From the minutes ofthe General Body Meeting ofthe Corporation held on 12-01- L 2006, which have been placed on record by the petitioner as Annexure P-16, it was resolved to carry out survey in respect of Ring Road and certain steps were resolved to be taken, but no survey report has been placed on record. In order to widen the existing road, the competent authority is required to acquire the land of the private persons, and ifthe respondents intended to widen the road, the only course was open to draw appropriate proceedings for acquisition of land and pay compensation thereof. .A..*V 10 ^ ^ 15. In view ofthe aforesaid discussion, l am ofthe considered opinion thatthe impugned order dated 10-01-2006 (Annexure P-12) and the subsequent action of demolition of the building of the petitioner is illegal and;jn excess of authority under the law. In the result, impugned order dated 10-01-2006 (Annexure P-12) is hereby quashed and the respondents are restrained from demolishing the existing structure i.e. the building standing on the land ofthe petitioner. However, ir' in view of what has been stated by the respondents in their return with regard to building permission or legality of the construction raised by the petitioner, on alleged violation of the building permission, it would be open for the respondents to proceed strictly in accordance with law. 15. It is difficult for this Court to assess the damages caused on account of demolition of six shops of the petitioner. The petitioner would be at liberty to file suit for damages and claim monetary compensation in that regard. However, iking into consideration the manner in which, the building raised by the petitioner has been demolished by the respondent authorities, it would be appropriate to direct the respondent-Corporation to pay compensation of Rs.50,000/- to the petitioner. The petitioner may approach the Civil Court to seek damages. In the event of grant of damages, if any, the amount as ordered by this ~J Courtshall be adjusted. ——• — -. Sd/- ; M.M. Shrivastava | Judge i