IN THE HON’BLE HIGH COURT OF CHHATTISGARH AT BILASPUR W.P.(C)N0. 3AV+2 /2009 PETITIONER Kishore Kumar Mitra, S/o. Late Shri KP. Mitra, Aged about 48 years, R/o. Navapara, Akashwani Road, Ambikapur, Police Station & Tahsil Ambikapur, District Surguja (CG) VERSUS State of Chhattisgarh? through: Secretary, Govt. of Chhattisgarh, and RESPONDENTS /I] Arban Administration Development Department, D;K.S. Bhawan Mantralaya, Raipur, District Raipur (CG) Collector, Ambikapur, Surguja, District Surguja (CG) Municipal Corporation, Ambikapur, through: Commissioner, Municipal Corporation, Ambikapur, District Surguja (CG Commissioner, Municipal Corporation, Ambikapur, District Surguja (CG) Deputy Director, Town & Country Planning, District Office, Korba, District Korba (CG) WRIT PETITION UNDER ARTICLE 226 & 227 OF :THE CONSTITUTION OF INDIA ) \ x i HIGH COURT OF C’HHATTISGARH : BILASPUR Single Bench: Hon’ble Shri Manindra Mohan Shrivastava, J. W.P. (C) No.2473l2009 Petitioner Kishore Kumar Mitra Versus State of Chhattisgarh and Others Respondents (Writ Petition under Article 226 & 2270f the Constitution of India) Present: - Shri M. V. Paranjpe, counsel for the petitioner. tShri B. P. Banjare, counsel appears on behalf of Smt. Hamida Siddiqui, counsel for respondents No.3 & 4. ORAL ORDER (Passed on 17-02-2011) Heard. 2. Though, time was granted to respondents No.3 & 4 ‘to file reply, till date, noreply has been filed. It was made clear that the respondents shall positively file their reply. However, even thereafter, no reply has been filed. Though, a prayer has been made by learned counsel for respondents No.3 & 4 for grant of further adjournment. Considering the nature of litigation, i am not inclined to grant further time. 3. The petitioner, by this petition, calls in question the legality and validity of action of the respondents No’i3 & 4'in‘proceeding to demolish the construction raised by the petitioner under notice of demolition dated 26-03-2009 (Annexure P-1) and 06-05-2009 (Annexure P-2). 4. Learned counsel for the petitioner submits that the petitioner is a registered owner of the land bearing Khasra No.0.05 1/2 Acre situated at Navapara, Akashwani Road, Ambikapur. Afterpurchase of the land under a Q‘l/ . Shri Satish Gupta Govt Advocate forthe State/respondents No 1 2 & 5 w registered sale deed, the petitioner‘ applied for and obtained building permission from the Municipal Corporation, Ambikapur and the map was also sanctioned by the Deputy Director, Town and Country Planning. After map was sanctioned, the petitioner raised construction-of his house on his own land‘ A notice was issued to the petitioner on 26-03-2009 requiring the petitioner to remove construction to the extent it obstructs the road. The petitioner was required to submit his reply in three days and it was further stated in the notice that if the reply is not found satisfactory, the Corporation would proceed to take action for removal of the construction. 5. After notice was received by the petitioner, a detailed reply was submitted to the respondent-Corporation by the petitioner vide his reply Annexure P-8 wherein the petitioner elaborately submitted that he has raised construction strictly in accordance With the building permission and sanction granted to him ‘ and he has not encroached upon the road. Thereafter, the‘ACorporation without considering the reply submitted by the petitioner, without carrying out any spot inspection in the presence of the petitioner and without there being any material based on such spot inspection and report, another. notice was issued to the petitioner on 06-05—2009 (Annexure P—2) which is a mere repetition of the earlier C notice and does not contain anything to show that the reply filed by the petitioner was considered. 6. Learned counsel for theXpetition'er argued that the respondent-Corporation having earlier issued notice on 26-03-2009 calling upon the petitioner to show cause and the petitioner having submitted a reply, the respondent authority were obliged to consider the same before issuing the impugned notice dated 06—05- 2009. Learned counsel next submitted that in a mechanical fashion, the second l l ‘\ I l notice has been issued without due application of mind to the reply submitted by ‘ the petitioner. Learned counsel for 'the petitioner submitted that the subsequent impugned notice ldated 06—05—2009 (Annexure P-2) nowhere states that the reply earlier filed by the petitioner was considered. 7r On the other hand, iearned State counsel submitted that as the matter relates to demolition proceedings initiated by the Corporation on the allegations regarding encroachment of public road by the petitioner, it is for the Corporation to defend the action initiated by it. 8. This Court had granted time to the respondent—Corporation to file reply, but in spite of several opportunities were granted, no reply has been filed. From the notice dated 26-03—2009 (Annexure P-t), it is revealed that the respondent- Corporation alleged that the petitioner had ‘raised construction, which is in violation of Section 293 and 322 of the Municipal Corporation Act, 1956, (in short “the Act of 1956") and the petitioner was called upon to file his reply. lt was also stated that in case, reply of the petitioner was not found satisfactory, proceedings under Section 322 of the Act of 1956 would be drawn. Thereafter, the petitioner submitted a detailed representation before the Corporation which is placed on record as Annexure P-8. A perusal of the said reply shows that the petitioner had taken specific defence by stating that he has raised construction strictly in accordance with the building permission and sanctioned map granted to him and that he has not encroached upon any public road. This stand of the petitioner prima facie appears to be we’r/th consideration in view of the documents which have been placed on record by the petitioner which show that the petitioner had purchased the land under a registered sale deed and various sanctions were granted to the petitioner and finally building permission was also granted to him. Therefore, the respondent-Corporation was under an obligation to duly consider the representation of the petitioner and take decision thereupon. ‘E g 9. From impugned notice dated 06-05-2009, it is revealed that referring to the earlier notice dated 26-03—2009, there is nothing to show that the reply submitted by the petitioner to show cause notice dated 26-03-2009 was considered by the respondent-Corporation. The impugned notice dated 06—05- 2009 on the face of it, a mere repetition of the earlier notice dated 26-03—2009. 10. All said and done, on the face of reply filed by the petitioner, learned counsel for the respondent-Corporation has failed to establish before this Court that pursuant to show cause notice dated 26-03-2009, reply submitted by the petitioner was considered before issuing the impugned show cause notice dated 06-05—2009. 1‘1. Therefore, i have to hold that the respondent-Corporation proceeded to issue the impugned notice dated 06—05-2009 without any consideration of petitioner’s reply pursuant to show cause notice dated 26—03—2009. Hence, action of the respondent-Corporation appears to be quite arbitrary, irrational and cannot be sustained in the eye of law. Consequently, the impugned notice dated 06-05- 2009 is declared illegal and is hereby set aside. The petitioner having submitted a detailed reply, the respondent—Corporation is under an obligation‘to consider the same and take decision thereupon and would be at liberty to proceed further, in case, it is found that the petitioner had contravened the provisions of Section 293 and 322 of the Act of 1956 while raising construction of his house. / 12. In view of foregoing, the petition is allowed to the extent indicated hereinabove. No orders as to cost. Tumane