R.S.A. No. 90 of 1988 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 90 of 1988 Date of decision: May 12, 2010 Jatish Chander Appellant Versus Ram Chander and another Respondents CORAM : HON'BLE MR. JUSTICE ALOK SINGH Present: Mr. H.N. Mehtani, Advocate for the appellant Mr. Sanjay Mittal, Advocate for the respondents ALOK SINGH, J. (ORAL) 1. Present second appeal is filed by defendant-appellant against judgment and decree dated 5.9.1987 passed by first Appellate Court/Additional District Judge, Narnaul, thereby allowing the first appeal filed by the plaintiff( herein respondents) against the dismissal of the suit. First Appellate Court in the impugned judgment dated 5.9.1987, decreed the suit of the plaintiff restraining the defendant-appellant not to demolish the construction raised by the plaintiff-respondent. 2. Brief facts of the present case are that plaintiff filed suit for permanent prohibitory with the allegation that plaintiff got the map sanctioned vide resolution dated 18.2.1977, however, sanctioning of the map was challenged by some persons of the locality by way of filing an appeal under Section 246 of The Haryana Municipal Act, 1973; the Deputy Commissioner vide order dated 7.11.1977 modified the sanction plan directing the plaintiff to leave 10 feets' space around the Mandir which was located on the northern side of the suit property; As per plaintiff, since no appeal lies against the sanction of the map under Section 246 of The Haryana Municipal Act, 1973, hence, order passed by the Deputy R.S.A. No. 90 of 1988 2 Commissioner is without jurisdiction. 3. Defendant – Municipality contested this suit by way of filing written statement supporting the order of the Deputy Commissioner modifying the sanctioned map. 4. The sole important issue before the Courts below was as to whether any appeal lies against sanctioning of the map under Section 246 of the The Haryana Municipal Act. 5. Learned First Appellate Court held that no appeal lies under Section 246 of The Haryana Municipal Act against sanctioning of the map. In the present appeal, the sole substantial question of law arises for consideration of this Court is, as to whether any appeal lies against sanctioning of the map under Section 246 of The Haryana Municipal Act. 6. Section 246 of Haryana Municipal Act reads as under:- “246. Powers to suspend any resolution or order of committee.- The Deputy Commissioner may, by order in writing, suspend the execution of any resolution or order of a committee, or joint committee or prohibit the doing of any act which is about to be done, or is being done in pursuance of or under cover of this Act, or in pursuance of any sanction or permission granted by the committee in the exercise of its powers under this Act, if, in his opinion, the resolution, order or act is in excess of the powers conferred by law or contrary to the interest of the public or likely to cause waste or damage of municipal funds or property, or the execution of the resolution or order, or the doing of the act, is likely to leased to a breach of the peace, to encourage lawlessness, or it causes injury or annoyance to the public or to any class or body of persons.” 7. From the perusal of Section 246, I have no hesitation to hold that Deputy Commissioner can look into the validity of the resolution passed by the Municipal Board. However, power under Section 246 of the Act can be exercised by Deputy Commissioner pertaining to the resolution R.S.A. No. 90 of 1988 3 passed by the Municipal Board, to find out as to whether resolution is in exercise of the powers conferred by law or contrary to the interest of the public or likely to cause waste or damage of municipal funds or property. Undisputedly, by raising the constructions over the private land in accordance with sanction map interest of the public or funds of the Municipal Board are not going to be adversely affected. Hence, no appeal lies under Section 246 against the sanctioning of the map. 8. View taken by the first appellate Court seems to be justified. No other substantial question of law is involved in the present appeal. 8. In view of the above, no interference is called for. Hence, the appeal is dismissed with no order as to costs. (ALOK SINGH) 12.05.2010 JUDGE reena 1. Whether Reporters of local papers may be allowed to see the judgment? Yes 2. To be referred to the Reporters or not? Yes 3. Whether the judgment should be reported in the Digest? Yes