Civil Writ Petition No.11143 of 2011(O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.11143 of 2011(O&M) Date of Decision:13.12.2011 Shamsher and another ......Petitioners Versus The State of Haryana and others .....Respondents CORAM: HON'BLE MR. JUSTICE MEHINDER SINGH SULLAR. Present: Mr.Ajay Jain, Advocate, for the petitioners. Mr.D.Khanna, Additional Advocate General, Haryana, for respondent Nos.1, 2, 4 and 5. Mr.Mukesh Verma, Advocate, for respondent No.3. **** M EHINDER S INGH S ULLAR , J.(oral) The conspectus of the facts, which requires to be noticed for the limited purpose of deciding the core controversy, involved in the instant writ petition and emanating from the record is that, Raja Rati Ram was the owner of the land bearing Khasra No.244/1, situated in the revenue estate of Village Naya Gaon(Daulatpur), District Rewari. He donated/reserved some portion out of it, for the construction of school building, for the benefit of all the inhabitants. The property in dispute was stated to have been vested in the Municipal Council, Rewari(for brevity “the respondent-MC”). 2. The respondent-MC claimed that, the petitioners have forcibly encroached upon the disputed portion, without any legal right. The respondent- MC claiming itself to be its owner and terming the petitioners as encroachers, issued the impugned notice dated 16.08.2010(Annexure P-5) under Section 181 of The Haryana Municipal Act, 1973(hereinafter to be referred as “the Act”), for Civil Writ Petition No.11143 of 2011(O&M) 2 removal of encroachment from the indicated land within a period of seven days, failing which, the action was proposed to be taken against them under Section 235 of the Act. 3. Aggrieved by the action of the respondent-MC, the petitioners preferred the present writ petition, challenging the impugned notice(Annexure P-5), mainly, on the ground that the same is illegal, arbitrary and against the provisions of the Act and the Rules. The respondent-MC refuted the claim of the petitioners and filed the written statement in this respect. 4. After hearing the learned counsel for the parties, going through the record with their valuable assistance and after considering the entire matter deeply, to my mind, the instant writ petition deserves to be partly accepted in this relevant connection. 5. As is evident from the record(written statement filed on behalf of the respondent-MC) that, Raja Rati Ram was the owner, the petitioners were stated to have illegally encroached upon the disputed portion and started constructions of muddy(kachha) mengers & fixing up wooden pegs for tethering their cattles etc. The respondent-MC issued impugned notice(Annexure P-5) to the petitioners under Section 181 of the Act, which deals with the punishment for immovable encroachment or overhanging structure over street and postulates that (1) whoever without the written permission of the Committee, makes any immovable encroachment on or under any street, on, over or under any sewer, or water course or erects or re-erects any immovable overhanging structure projecting into a street at any point above the said ground level shall be punishable with imprisonment for a term up to six months or with a fine which shall not be less than two thousand rupees and more than ten thousand rupees or both. 6. Sequelly, Sub-Section(2) further posits that without prejudice to the provisions of sub-section(1), the committee, the executive officer or the secretary, as the case may be, by notice, call upon any person who has committed a breach of Civil Writ Petition No.11143 of 2011(O&M) 3 the provisions contained in the said sub-section, to stop the unauthorised construction forthwith and to remove or alter such immovable encroachment or overhanging structure as aforesaid within a period of seven days and if such person fails to show cause to the satisfaction of the committee, the executive officer or the secretary, as the case may be, within the said period of seven days, the committee, the executive officer or the secretary, as the case may be, shall proceed to remove the unauthorised construction and the cost of such removal shall be recovered from the defaulter. If the defaulter fails to pay the cost of removal of unauthorised construction on demand within fifteen days, the cost shall be recoverable from such person as arrears of land revenue and the committee shall dis-connect the water supply and the sewerage connections: Proviso to this Section further envisages that if a period of more than five years has elapsed from the completion of encroachment or overhanging structure, no prosecution shall lie under sub-section(1). 7. A plain and meaningful reading of these provisions would reveal that, it was obligatory on the part of the respondent-MC, to come to a definite conclusion that the petitioners have made any immovable encroachment on or under any street, on, over or under any sewer, or water course or erects or re-erects any immovable overhanging structure projecting into a street at any point above the said ground level, which are totally lacking in the instant case. The impugned notice(Annexure P-5) purported to have been issued under Section 181 of the Act, appears to be speculative and it is nowhere mentioned in it that the encroachment of the petitioners is squarely falls within the ambit of Section 181 of the Act. Therefore, to me, the impugned notice(Annexure P-5) cannot legally be sustained in the eyes of law in this regard. 8. In the light of aforesaid reasons and without commenting further anything on merits, lest it may prejudice the case of either side during the course of any kind of subsequent proceedings, the instant writ petition is partly accepted. Civil Writ Petition No.11143 of 2011(O&M) 4 The impugned notice(Annexure P-5) is hereby quahsed. 9. Be that as it may, nothing recorded hereinabove would reflect, in any manner, on the merits of the case, as the same has been so observed for a limited purpose of deciding the validity or otherwise of the impugned notice(Annexure P-5). 10. Needless to mention that, the respondents would be at liberty to take appropriate action for ejectment of the petitioners, after following the due procedure and in accordance with law. December 13, 2011 (MEHINDER SINGH SULLAR) seema JUDGE