RSA No.2594 of 1987(O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. RSA No.2594 of 1987 (O&M) Date of decision: 9.3.2010 Municipal Committee ............Appellant Versus Om Parkash and another .........Respondents CORAM: HON'BLE MR. JUSTICE ALOK SINGH -.- Present: Ms. Anjali, Advocate for the appellant. Mr. Vineet Soni, Advocate for the respondents. --- 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 ALOK SINGH, J. 1. The appellant/Municipal Committee is assailing the judgment dated 10.3.1987 of the first Appellate Court/Additional District Judge, Sangrur, thereby the first Appellate Court set aside the dismissal order of the trial Court and decreed the suit filed by the plaintiffs/respondents. 2. The brief facts of the present case are that plaintiffs filed suit for permanent injunction restraining the defendant/Municipal RSA No.2594 of 1987(O&M) 2 Committee from interfering in the possession of the plaintiffs over the property in dispute. In the nutshell, case of the plaintiffs is that plaintiffs are the owners of the Shop No.B-II/453 situated in Mandi Sunam and defendant/Municipal Committee has no connection with the shop in dispute and wants to forcibly interfere in the possession of the plaintiffs. 3. The suit was contested by the Municipal Committee by filing written statement and it was contended that plaintiffs illegally occupied a portion of the land measuring 24'-6”x14'-9” adjoining to the shop of the plaintiffs. It was further contended by the defendant/Municipal Committee that plaintiffs had raised illegal construction on the Municipal's land without the approval of the Municipal Committee. However, the Executive Officer, Municipal Committee reported the matter to the Municipal Committee and notices under Sections 172, 195 and 195-A of the Punjab Municipal Act, were issued to the plaintiffs. Plaintiffs did not comply with the notices served by the Municipal Committee. Hence, notice under Section 220 of the Punjab Municipal Act was issued to the plaintiffs. It was further contended by the Municipal Committee that Municipal Committee has every authority, power and jurisdiction to demolish the illegal construction raised by the plaintiffs and Municipal Committee has every power to remove the encroachment made by the plaintiffs over the Municipal's land. 4. On the pleadings of the parties the following issues were framed by the learned trial Court:- “1. Whether the plaintiffs are the owners of the suit property?OPP. 2. Whether the plaintiffs are entitled to the RSA No.2594 of 1987(O&M) 3 injunction prayed for?OPP. 3. Whether the plaintiffs have no locus standi to file the suit?OPD. 4. Whether the suit is not maintainable in the present form?OPD. 5. Whether this Court has no jurisdiction to hear this suit?OPD. 6. Whether the service of notices under Section 49 of the Punjab Municipal Act is essential before filing the suit?OPD. 7. Relief." 5. Learned trial Court has recorded clear cut finding of fact that plaintiffs have raised construction without getting the approval from the Municipal Committee as required under the Punjab Municipal Act, 1911. Learned trial Court further observed that since construction were raised illegally without getting the site plan sanctioned and Municipal Committee is within its right to take the action against the plaintiffs, hence, no injunction could be granted in favour of the plaintiffs. However, learned trial Court recorded a finding that plaintiffs have not encroached upon any Municipal’s land. 6. The first Appellate Court confirmed the finding on the question of ownership in favour of the plaintiffs as recorded by the learned trial Court, however, allowed the appeal filed by the plaintiffs by holding that Municipal Committee has not intimated to the plaintiffs within a period of 60 days about the rejection of the map, hence, presumption would be in favour of the plaintiffs that map was duly sanctioned; hence, constructions cannot be said to be illegally raised. 7. Learned Counsel for the appellant argued that in the present appeal, issue No.5 would be the substantial question of law. RSA No.2594 of 1987(O&M) 4 I find force in the arguments of learned Counsel for the appellant. Hence, issue No.4, as to whether Civil Court has jurisdiction to decide the suit is a substantial question of law. 8. I have heard learned Counsel for the parties and perused the record. 9. Undisputedly, Municipal Committee/appellant issued notices under Section 172, 195 and 195-A under the Punjab Municipal Act to the plaintiffs on different dates, which were served on the plaintiffs. Undisputedly, thereafter notice under Section 220 of the Punjab Municipal Act was also served to the plaintiffs. 10. Sections 189 and 193 of the Punjab Municipal Act, 1911 are being reproduced as under:- “189. Prohibition of building without sanction – (1) No person shall erect or re- erect or commence to erect or re-erect building without the sanction of the [Committee]. (2) Notice of building – Every person who intends to erect or re-erect any building shall give notice in writing to the [committee] of such intention. (3) Building bye-laws- A committee shall by bye-law – (a) prescribe the manner in which notice of the intention to erect or re-erect a building shall be given to the committee; (b) require that with every such notice shall be furnished a site plan of the land on which it is intended to erect or re-erect such building, and a plan and specification of the building, of such character and with such details as the bye-law may require; RSA No.2594 of 1987(O&M) 5 (c) where the building appears likely to be used as a factory, require the provision of adequate housing accommodation in connection therewith. (4) Where bye-laws have been framed under this section no notice under sub-section(2) shall be considered to be valid until the information, if any required by such bye-laws has been furnished to the satisfaction of the [committee]. 193. Powers of committee to sanction or refuse erection or re-erection of buildings - (1) The committee [or the Executive Officer, as the case may be], shall refuse to sanction the erection or re-erection of any building in contravention of any bye-law made under sub-section (1) of section 190 or in contravention of any scheme sanctioned under sub-section the (3) or sub-section (4) of section 192, unless it be necessary to sanction the erection of a building in contravention of such a scheme owing to the committee’s inability to pay compensation as required by section 174 for the setting back of a building. (1-a) When the erection or re-erection of a building is likely, in the opinion of the Committee [or the Executive Officer, as the case may be] to interfere with the enforcement of a scheme proposed under section 192, the Committee may refuse its sanction and in such case shall communicate its refusal in writing together with the grounds therefore, to the applicant within sixty days of the receipt of his application, and the applicant may thereafter, by written notice RSA No.2594 of 1987(O&M) 6 require the committee to proceed with the preparation of the proposed scheme with all possible speed. The application shall be deemed to have been sanctioned if an order of refusal is not passed by the committee [or the Executive Officer, as the case may be] within the time specified above, or if the proposed scheme has not received the sanction of the (State) Government within twelve months of the date of delivery of the applicant’s written notice hereinbefore referred to: Provided that should a resolution refusing such sanction be suspended under section 232, the period prescribed above shall commence to run afresh from the date of communication of final orders by the [State] Government under section 235. Explanation:- A scheme shall be deemed to have been proposed under section 192 if a requisition for its preparation has been received by the committee from the [Deputy Commissioner] or if the preparation of the scheme is under the consideration of the committee. (2) The committee [or Executive Officer, as the case may be] may refuse to sanction the erection or re-erecting of any building for any other reason, to be communicated in writing to the applicant, which it [or he, as the case may be,] deems to be just and sufficient as affecting such building, be if the land, on which it is proposed to erect or re-erect such building [is vested in the Government or in the committee], and the [consent of the Government] concerned or, as the case may RSA No.2594 of 1987(O&M) 7 be, of the committee has not been obtained, or if the title to the land is in dispute between such person and the committee [or any Government]. (3) Subject to the provisions of sub- section (1) the committee [or the Executive Officer, as the case may be] may sanction the erection or –re-erection of any building either absolutely or subject to such modifications in accordance with the bye-laws and rules as it [or he, as the case may be,] may deem fit. (4) Notwithstanding anything contained in sub-section (1) or sub-section (2) but subject to the provisions of sub-section (2) of section 190 [and sub-section (1-a) of this section] if the committee [or the Executive Officer, as the case may be] neglects or omits within sixty days of the receipt from any person of a valid notice of such person’s intention to erect or re-erect a building, or within one hundred and twenty days, if the notice relates to a building on the same or part of the same site, on which sanction for the erection of a building has been refused within the previous twelve months; to pass orders sanctioning or refusing to sanction such erection or re-erection, such erection or re-erection shall, unless the land on which it is proposed to erect or re-erect such buildings belongs to or vests in the committee, be deemed to have been sanctioned, except in so far as it may contravene any bye-law, or any building or town planning scheme sanctioned under section 192: Provided that should a resolution conveying or refusing such sanction be suspended under section 232, the period RSA No.2594 of 1987(O&M) 8 prescribed by clause (4) shall commence to run afresh from date of communication of final orders by the [State] Government under Section 235: Provided further that if not less than one-fifth of the members present vote against a resolution conveying sanction, the sanction shall be deemed not to have been conveyed until after the lapse of fourteen days from the passing of the resolution.” 11. From the perusal of section 189 (supra) it can safely be held that none can erect or re-erect any building without the sanction of the committee. Every person who intends to erect or re-erect the building has to apply/give notice to the committee as required by bye- laws of the committee. Thereafter under section 193(3), committee may sanction the erection or re-erection of any building either absolutely or subject to such modification in accordance with bye- laws and rules as it deem fit. However, as per sub-section (4) of section 193, if committee neglects or omits within sixty days of the receipt of a VALID NOTICE to pass orders sanctioning or refusing to sanction such erection or re-erection shall be deemed to have been sanctioned, unless land over which erection or re-erection is proposed belongs to a vests in the committee. Such deemed sanction does not mean that applicant shall be free to contrivance any building bye-laws or town planning scheme. 12. In the present case, plaintiff could not prove that he has submitted/served VALID NOTICE or application seeking sanction as per bye-laws of the committee alongwith fee seeking sanction. Plaintiff neither pleaded nor stated on oath that proposed construction was as per bye-laws and rules or scheme of the RSA No.2594 of 1987(O&M) 9 committee. Learned first Appellate Court wrongly drawn presumption without any evidence or pleading that map might have been submitted for sanction on 17.6.1982. 13. Sections 195 and 225 of the Punjab Municipal Act, 1911 read as under:- “195. Penalty for disobedience – Should a building be begun, erected or re-erected – (a) without sanction as required by section 189(1); or (b) without notice as required by section 189 (2); or (c) when sanction has been refused, the [committee] may by notice delivered to the owner within six months from the completion of the building, require the building to be altered or demolished as it may deem necessary within the period specified in such notice; and should it be begun or erected. (d) in contravention of the terms of any sanction granted; or (e) when the sanction has lapsed; or (f) in contravention of any bye-law made under section 190; or, in the case of a building of which the erection has been deemed to be sanctioned under section 193(4), if it contravenes any scheme sanctioned under section 192; the [committee] may by notice to be delivered to the owner within six months from the completion of the building require the building to be altered in such manner as it may deem necessary, within the period specified in such notice: RSA No.2594 of 1987(O&M) 10 Provided that the committee may, instead of requiring the alteration or demolition of any such building, accept by way of compensation such sum as it may deem reasonable: Provided also that the committee shall require a building to be demolished or altered so far as is necessary to avoid contravention of a building scheme drawn up under section 192: [Provided further that if any notice is issued by the Executive Officer under this section on the ground that a building has been begun or has been erected in contravention of the terms of any sanction granted or in contravention of any bye-law made under section 190 the person to whom the notice is issued may, within fifteen days from the date of service of such notice, appeal to the committee, and subject to the provisions of sections 225, 232 and 236, the decision of the committee shall be final.] 225. Appeals from order of committee – (1) Any person aggrieved – (a) by the refusal of a committee under section 193 to sanction the erection or re-erection of a building, or (b) by a notice from a committee under section 171 requiring a street to be drained, leveled, paved, flagged, metalled or provided with proper means of lighting, or declaring a street to be a public street, or under section 195 requiring the RSA No.2594 of 1987(O&M) 11 alteration or demolition of a building, or (c) by any order made by a committee [or any Executive Officer] under the powers conferred upon [it] by sections 107, 116, [121], 123 [or 124] may appeal within thirty days, from the date of such prohibition, notice or order to such officer as the State Government may appoint for the purpose of hearing such appeals or any of them, or, failing such appointment, to the Deputy Commissioner; and no such refusal, notice or order shall be liable to be called in question otherwise than by such appeal. (2) The appellate authority may, if it shall think fit, extend the period allowed by sub-section (1) for appeal. (3) The order of the appellate authority confirming, setting aside or modifying the refusal, notice or order appealed from shall be final: Provided that the refusal, notice or order shall not be modified or set aside until the appellant and the committee have had reasonable opportunity of being heard.” 14. Undisputedly, notice under Section 195 of the Act was received by the plaintiffs. Undisputedly, they have not replied to the notice under Section 195 nor they filed any appeal before the Committee as required by third provision of Section 195 and Section 225 of the Act. RSA No.2594 of 1987(O&M) 12 15. Undisputedly, plaintiffs also received notice from the committee to remove encroachment from the Municipal property as required by under Section 172-A of the Act. It seems, no reply was submitted by the plaintiffs to the notice claiming their ownership over the land mentioned in the notice. 16. Section 172-A of the Punjab Municipal Act, 1911 reads as under:- “Section 172-A: Punishment for encroach- ment upon land, premises or public place. - (1) Whoever makes any encroachment, by raising a temporary or permanent structure on any land, premises or public place, not being private property whether such land, premises or public place belongs to or vests in the com- mittee or not shall on conviction be published with simple imprisonment which shall not be less than one month, but which may extend to three years and with fine which may extend to twenty thousand rupees : Provided that parking of rehari temporar- ily or setting up steps for providing passage to the houses and shops in a street or a drain, channel, well or tank passing through or by the side of land, premises or public place shall not be constructed as an encroachment. (2) The Executive Officer or any other officer authorised by the Committee in this behalf shall have power to remove any such en- croachment and the expenses of such re- moval shall be paid by the person who has caused the said encroachment. (3) Notwithstanding anything contained in the foregoing provisions, the Executive Officer or the officer authorised by the Committee in this RSA No.2594 of 1987(O&M) 13 behalf, shall, in addition to any other action which may be taken under this section, also have power to seize or attach any property found on the land, premises or public place referred to in this section or, as the case may be, attached to or permanently fastened to anything attached to such land, premises or public place. (4) Where any property is seized or attached in terms of sub-section (3) by any officer authorised by the Committee, he shall imme- diately make a report of such seizure or at- tachment to the Executive Officer. (5) The Executive Officer may make such or- der as he may think fit for the proper custody of the property seized or attached, pending the conclusion of confiscation proceedings and if, the property is subject to speedy and natural decay, or it is otherwise expedient so to do, the Executive Officer may cause it to be sold or otherwise disposed of. (6) Where any property is sold as aforesaid, the sale proceeds thereof after deduction of the expenses of any such sale or other inci- dental expenses relating thereto, shall,- (a) Where no order of confiscation is passed by the Committee under sub sec- tion (7); or (b) Where an order passed in appeal, un- der sub section (11) so requires, be paid to the owner thereof or the person from whom, it is seized. (7) Where any property is seized or attached, under sub section (3), the Committed may RSA No.2594 of 1987(O&M) 14 subject to the provisions of sub section (8), order confiscation of such property. (8) No order for confiscating a property under sub section (7) shall be made unless the owner of such property or the person from whom it is seized or attached is given, - (a) a notice in writing, informing him of the grounds on which it is proposed to confis- cate the property; (b) an opportunity of making a representa- tion in writing, within such reasonable time as may be specified in the notice against the grounds of confiscation; and (c) a reasonable opportunity of being heard in the matter. (9) The order of any confiscation made under sub section (7), shall not prevent the infliction of any punishment to which the person af- fected thereby is liable under this Act. (10) Any person, aggrieved by such confisca- tion order made under sub-section (7), may, within one month from the date of communi- cation to him of such order, appeal against it to the district Judge of the District in which such property is seized or attached. (11) On such appeal, the District Judge may, after giving an opportunity to the appellant and the respondent to be heard, direct the or- der to be stayed pending disposal of the ap- peal, or may modify, alter or annual the order and make any further order that he may think proper in the matter. RSA No.2594 of 1987(O&M) 15 (12) Subject to the provisions of sub-section (5), whenever any property is seized or at- tached pending confiscation under sub sec- tion (7), the Committee or the District Judge shall have, and notwithstanding anything to the contrary contained in any other law for the time being in force, any court, tribunal or other authority shall not have jurisdiction to make order with regard to the possession, de- livery, disposal, release or distribution of such property. (13) Where any person is prosecuted of an offence for the contravention of the provisions of sub-section(1), the burden of proving that he has not committed the said offence, shall be on such person. (14) Whoever being an employee of the Com- mittee permits anybody to encroach upon or abets to encroach upon any property speci- fied in sub-section(1), shall on conviction be punished with simple imprisonment for a term which may extend to one month or fine which may extend to one thousand rupees or with both: Provided that no court shall take cogni- zance against such employee for the offence punishable under this sub-section except with the previous sanction of the Committee. (15) No investigation of an offence for contra- vention of the provisions of sub-section (1) of sub-section (14), as the case may be, shall be made by an officer below the rank of a Deputy Superintendent of Police.” 17. From the perusal of Section 172-A, it can safely be said RSA No.2594 of 1987(O&M) 16 that any order passed there under can be challenged by way of filing appeal before District Judge. As per Sub-section 12 of Section 172- A, no other Court or Tribunal shall have any jurisdiction over the matter. It has not been made clear by the plaintiffs as to whether any order is passed by the committee as yet under Sub-section (3) or (7) of Section 172-A or not. 18. Plaintiffs, acting smartly, filed civil suit seeking injunction projecting as if Municipal Committee intends to grab property of the plaintiffs. Such type of simplicitor suit seeking injunctrion without challenging jurisdiction of the Municipality to issue notices under Sections 172, 172-A, 195 and 195-A of the Act is not maintainable. Plaintiffs should file reply to the notices issued and thereafter should avail remedy provided under the Act. Jurisdiction of Civil Court is specifically barred under Section 172-A (12) of the Act and impliedly barred under third proviso of Section 195 and Section 225 of the Act. Question of law that Civil Court has no jurisdiction is decided in favour of the defendant/appellant. 19. In view of observations made herein above, I have no other option except to allow present appeal and to dismiss the suit filed by the plaintiffs. 20. The appeal is allowed and the judgment dated 10.3.1987 is set aside. Suit of the plaintiffs is dismissed in toto. Defendant/appellant shall be entitled for the cost of this litigation from the plaintiffs. (ALOK SINGH) 09th March, 2010 JUDGE ashish