CR No.601 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CR No.601 of 2010 Date of decision: 6.5.2011 Municipal Corporation, Ludhiana and another ...Petitioners Versus Neeru Jain and another ...Respondents Coram: HON'BLE MR.JUSTICE RAM CHAND GUPTA Present: Mr.Harsh Aggarwal, Advocate for the petitioners Mr.Deepak Sharma, Advocate for the respondents Ram Chand Gupta, J.(Oral) The present revision petition has been filed under Article 227 of the Constitution of India for setting aside the order dated 9.5.2009 (Annexure P-4) passed by learned first appellate court. I have heard learned counsel for the parties and have gone through the whole record carefully including the impugned order passed by learned first appellate court. Facts relevant for the decision of the present revision petition are that suit was filed by the respondents-plaintiffs for permanent injunction restraining the petitioners-defendants from demolishing any portion of the property in dispute duly described in heading of the plaint. The suit was contested by the petitioners-defendants. Alongwith the suit an application under Order 39 Rules 1 and 2 of the Code of Civil Procedure (for short 'the CPC') was also filed by respondents- CR No.601 of 2010 2 plaintiffs restraining the petitioners-defendants from demolishing construction already existing on the spot. The said application was also contested by the petitioners-defendants. However, the same was dismissed by learned trial court by observing that the petitioner-Corporation has adopted legal procedure and served a notice and obtained objections which were decided before removal of the construction. In appeal filed against the said order by respondents-plaintiffs, learned first appellate court restrained the present petitioners from demolishing the existing construction raised by the respondents-plaintiffs without serving notice as required under Section 269 of the Municipal Corporation Act (for brevity 'the Act'). However, it has been contended by learned counsel for the petitioners that construction is still existing and has not been demolished in view of the present suit filed by respondents-plaintiffs. There are some arguable and disputed points in the present suit, which will be decided on merits only after giving opportunities to the parties for leading their respective evidence. Learned first appellate court has only restrained the present petitioners-defendants from demolishing the existing construction without serving notice as required under Section 269 of the Act. Sufficient reasons have been given by learned first appellate court in passing the impugned order in para No.10, which reads as under:- “10. It has been argued by the counsel for the appellant that the findings of the learned lower court are against CR No.601 of 2010 3 law and facts. The appellant had raised construction about several years back. The respondents have not given any notice as required under Section 269 of the Act before demolition of the property of the plaintiff. So far as previous litigation is concerned, that stands admitted between the parties. In case we go through the previous litigation, there is order dated 10.5.1995 passed by the court of Sh.Balbir Singh, ADJ, Ludhiana, in MCA No.96 of 4.5.1995 wherein it was observed that in the absence of show cause notice under Section 269 of the Act, Corporation was not legally competent to issue composite notice under Section 269 of the Act for demolition of unauthorised construction. There is nothing on the record that show cause notices were issued to the appellants before passing the impugned notice dated 29.4.1994 and accordingly, these orders were quashed. Again an order dated 1.12.1995 was passed by Commissioner, Municipal Corporation, Ludhiana under Section 246 of the Act which was challenged in MCA No. 163 dated 18.12.1995 which was decided by the Court of Sh.C.D. Gupta, ADJ, Ludhiana on 8.5.1998 and it was observed that no power has been given to Commissioner, Municipal Corporation, Ludhiana i.e. under Sections 246 and 269 of the Act to CR No.601 of 2010 4 order the plaintiffs to vacate the premises within two months. In case any encroachment has been made then they are at liberty to take action against the appellants after serving notice under Sections 246/269 of the Act and accordingly the appeal was accepted and order dated 1.12.1995 was set aside. The counsel for the appellant has also brought to the notice of the Court sale deeds vide which plaintiffs purchased property and copy of jamabandi of said property falling in Khasra No. 254 and during the course of arguments counsel for the respondents have not been able to rebut that the appellants are not owner of the property as per sale deed referred in the pleadings and copy of jamabandi for the year 1987-88. Although in the written statement a plea has been taken that the matter was again taken up in the court of Sh.S.M.S. Mahal, ADJ, Ludhiana vide judgment dated 20.5.2003. In response to show cause notice dated 18.12.2003 in view of the interim directions of Hon'ble High Court, the appellants had filed objections and attended their office and after that demolition order was passed on 2.5.2005, but during the course of arguments no such document has been brought to the notice of the Court by the counsel for the respondents. In case we go through the order of Hon'ble High Court in CWP CR No.601 of 2010 5 No.4886/03 vide which directions were given to District and Sessions Judge, Ludhiana to ensure that all the applications filed on behalf of Municipal Corporation, Ludhiana for vacating the interim orders are heard and decided by the concerned court within a period of six weeks from the date of their filing. Counsel for the appellant has relied upon certain judgments i.e. 1996(3) RCR (Civil) 408 Dr.R.S. Bhujwala Versus Municipal Corporation of Delhi wherein it has been observed that natural justice demands that recognised owner is entitled to notice under Sections 343 and 349 before demolition of his property. There is another judgment of our own Hon'ble High Court reported in 1999(4) RCR (Civil) 129 Santosh Versus State of Punjab that Section 269(1) and (2) of Municipal Corporation Act, in case of demolition unauthorised construction, natural justice demands that before proceeding with the action of demolition, the Corporation is bound to issue a show cause notice and give an opportunity to the person concerned to explain. If his explanation is rejected, he is entitled to file an appeal before the District Judge, an Appellate Authority, resorting to demolition without complying with the provisions of Section 269 of the Act is illegal and arbitrary. On the same lines is judgment reported in AIR CR No.601 of 2010 6 (1987) 639 Raj Masih Versus Municipal Corporation, Amritsar and another, AIR 1992 Andhra Pradesh 143 M.Raj Kumar and others versus the Excise Superintendent, Hyderabad and others and 2002(1) RCR (Civil) 262 Mr.Obaidul Rab Raufi versus Municipal Corporation of Delhi. This legal proposition has not been controverted by the counsel for the respondents that no construction can be demolished without serving notice as required under Section 269(1) and (2) of the Act and respondent has not been able to pin point any notice served upon the plaintiffs before demolishing the property of the plaintiffs. With regard to the notice issued to R.Jain Industry which is figuring in the list which has been stated to be prepared by Corporation in view of the directions given by Hon'ble High Court for removal of the encroachments. In case we go through the pleadings of the plaintiff, it has been specifically stated that they are running business under the name and style of D.Jain Hosiery. Even otherwise the plaintiff has given the property number and Khasra number, but no such notice connecting the property with Municipal number or Khasra number has been proved on the record. This aspect was not properly dealt with by the learned lower court and without discussing this factual CR No.601 of 2010 7 and legal position had dismissed the application of the plaintiff which is legally not sustainable.” Hence, in view of these facts, it cannot be said that any illegality or material irregularity has been committed by learned first appellate court in passing the impugned order, warranting interference by this Court. There is no merit in the present revision petition. Hence, the same is hereby dismissed. However, it is made clear that nothing observed herein shall be having any bearing on the decision of the case on merit by learned trial court. However, as the present suit pertains to the year 2006 and the same is still at the stage of evidence of the plaintiffs, learned trial court is directed to expedite the decision of the present suit and efforts be made to decide the same within six months from the next date of hearing. 6.5.2011 (Ram Chand Gupta) gsv Judge