IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No. 158 of 2011 Reserved on: 29.8.2011 Date of decision: 30.08.2011 Swaran Chaudhary ... Petitioner Versus Municipal Corporation, Shimla … Respondent Coram : The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting?1 Yes. For the petitioner: Mr. Satyen Vaidya, Advocate. For the respondent: Mr. Shrawan Dogra, Advocate. Mr. Deepak Bhasin, Advocate, for the Caveator. V.K. Ahuja, J. (Oral): This petition has been filed by the petitioner under Article 227 of the Constitution of India against the judgment dated 2.4.2011, passed by the learned Additional District Judge (Fast Track Court), Shimla, in an appeal filed under Section 253 (2) of the H.P. Municipal Corporation Act, hereinafter referred to as the Act, against the order passed by the Commissioner, Municipal Corporation, Shimla, dated 18.12.2010, vide which the impugned order passed by the Commissioner, Municipal Corporation, was upheld and the appeal filed by the petitioner was dismissed. 1Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 2. Briefly stated, the facts of the case are that on a complaint filed by some person to the Municipal Corporation, Shimla, a notice under Section 253 of the Act was issued to the petitioner that on a site inspection carried out by the Junior Engineer, it has been noticed that you have raised unauthorized toilet measuring 1.32 x 1.54 = 2.03 Sq. Mtr. in Core Area of Shimla Planning Area without the prior permission of the competent authority. The petitioner was asked to explain as to why unauthorized construction in the shape of toilet be not removed. It was also mentioned therein that in case the petitioner failed to file reply to this notice within the given period, the demolition order shall be passed without affording any further opportunity. 3. The petitioner submitted reply dated 29.5.2010 and took up the plea as under:- “It is further submitted that only the internal renovation of the toilet has been done by putting tiles on the walls and nothing additional or new has been raised by me. The water tank placed above the toilet had been damaged which has only been replaced. Notice No. MCS/AP/10-2221 dated 7.5.2010 has never been received by me nor I have raised any unauthorized toilet. It is only the internal renovation by putting tiles on the walls has been done for which there is no requirement to seek permission of the competent authority. The present notice is wrong and the same has been issued without verifying the actual position on the spot and without associating the replying respondent.” 4. Thereafter, another notice was issued to the petitioner Annexure P-3 dated 2.8.2010 asking him to appear before the Commissioner, Municipal Corporation, Shimla. 3 5. On 4.9.2010, the Commissioner observed that time has been sought by the counsel for the petitioner (respondent before him) to file additional evidence. Further, time was again prayed on 23.10.2010 for the additional evidence. On the next date i.e. on 18.12.2010, it was observed by the Municipal Corporation, Commissioner, as under:- “Case called. Present AP, AE & JE for the MC Shimla & Mr. Garuav Sharma vice Mr. Satyen Vaidya counsel for the respondent. Mr. Swaran Chaudhary, Mr. Adesh Jain, complainant is also present in person. The respondent was given time to file additional evidence. The counsel for the respondent has filed six photographs which do not cover the existing premises. However, one of the photographs shows the existence of two water tank over the RCC slab, which also does not prove that this structure is old one. However, the report of the AE clearly states that the toilet has been constructed unauthorizedly. Therefore, I order the respondent to demolish the unauthorized toilet measuring 1.32x1.54=2.03 sq. mtr. within a period of one month from today, failing which the same shall be demolished by the A.P at the risk, cost and responsibility of the respondent. The case to come up on 26.2.2010.” 6. Being aggrieved by the above order passed by the Municipal Commissioner, the appeal was filed before the District Judge and the matter was decided by the learned Additional District Judge (Fast Track Court), Shimla, vide his impugned judgment dated 2.4.2011, which is under challenge in the present petition. 7. A notice of the petition was issued to the respondent. Meanwhile, a caveat petition was also filed by one person. 8. I have heard the learned counsel for the parties and have gone through the record of the case. 4 9. It was submitted by the learned counsel for the petitioner that the learned Commissioner at the time of passing of the order had simply observed that six photographs have been filed, which do not cover the existing premises. One of the photographs shows that existence of two water tank over the RCC Slab, which also does not prove that this structure is old one. These two grounds were taken by the learned Commissioner in passing the impugned order. He also observed that the report of the Assistant Engineer clearly shows that the toilet has been constructed unauthorizedly and, therefore, he passed the demolition order as referred to above. 10. On a perusal of the judgment of the learned Additional District Judge, it is clear that he observed that no other additional evidence was led by the present petitioner except filing six photographs and in regard to the said photographs, the learned Appellate Court observed as under:- “The appellant was duly represented by counsel before the Commissioner on 04.09.10 and time was sought on his behalf for leading evidence to the effect that the said toilet was constructed many years before. Again opportunity was sought on 23.10.2010 for leading additional evidence and case was adjourned to 18.12.2010 for the evidence of the appellant. However, he did not lead any evidence, in the shape of sanctioned plan of his building showing that the said toilet was an old one and was constructed with approval of MC, Shimla. He merely filed six photographs of the said toilet, which are on the record of the file of the Commissioner. A bare look of these photographs in deed shows that the toilet has been constructed recently and it is not an old one, as has been contended by the appellant. So, opportunity to controvert the allegations made against him was given to him by the Commissioner.“ 5 11. It was also observed by the earned Appellate Court that the appellant has not filed any sanctioned order of Municipal Corporation, Shimla, that the toilet was constructed after obtaining sanction from the competent authority. Therefore, the learned Commissioner rightly passed the demolition order. This is to my mind, was the crux of the matter. Since the petitioner could prove this fact that toilet was constructed by him as per the sanctioned plan by producing the sanctioned plan from the Municipal Corporation at the time he raised the construction of the toilet if it was old one. Learned counsel for the petitioner had submitted that the copy of sale deed is not on record and the property was purchased as flat by the petitioner more than 30 years ago. In case, he has purchased the property, he must have seen the sanctioned plan and even if flat has been purchased, description of the property must be there including reference of the toilet, if any, raised at that time by the petitioner or by the previous owner. These were the material documents, which were not produced by the petitioner and, therefore, the documents produced by him before the Commissioner only were to be considered, though he could not ignore this fact that these were most important documents to determine the controversy in question. 12. However, the petitioner sought an opportunity only to produce six photographs, which were produced before the learned Commissioner and he observed that these do not cover the existing premises and also took another ground that once of the photographs shows that existence of two water tank over the RCC Slab, which does not prove that this structure is old one. This observation was made by the learned Commissioner having a glance at the photographs and 6 there was no material to hold that these do not cover the existing premises since no rebuttal evidence was led by the Municipal Corporation. He rather took up the main ground that these do not cover the existing premises. However, the learned Additional District Judge while disposing of the appeal as mentioned above simply observed that a bare look of these photographs in deed shows that the toilet has been constructed recently and it is not an old one. To my mind, both the Courts below had not proceeded in accordance with the procedure since by having a bare look at the photographs and without there being any other evidence, the Commissioner could not have come to this conclusion that these do not cover the existence of the premises and unless it was proved so. Therefore, the conclusion arrived at by the Commissioner cannot be said to be correct, but did not pass any detailed order referring to the sanctioned plan or other material in possession of the petitioner, which he had failed to produce or by giving reasoning, but he simply observed that these facts in the impugned order and without giving any detailed reasons for passing the order, he passed the order of demolition, which to my mind does not appear to be a reasoned order. 13. However, the learned Additional District Judge by having a bare look at the photographs observed that the toilet appears to have been constructed recently and is not an old one. The Court cannot be presumed to be an expert in making such observations simply by having a look at the photographs and to my mind, the approach of the Learned Additional District Judge in this regard was also not correct. 14. From the above discussion, it follows that the learned Commissioner did not pass a reasoned order while passing the impugned 7 order and the learned Additional District Judge also failed to appreciate this fact in the right perspective. To my mind, the better option in the facts and circumstances of the case can be by appointment of a Local Commissioner, who could go to the spot inspection in presence of both the parties and report about the probable year of the structure standing at the spot. No opportunity can be given to the petitioner to lead any other evidence including the sanctioned plan if any, since only opportunity was sought for evidence, which was produced in the nature of photographs and these are to be considered as to whether they prove this fact or not that the structure was new one or old one. 15. The impugned order passed by the learned Additional District Judge affirming the order passed by the learned Commissioner is set aside and consequently, the order of learned Commissioner also stands set aside. 16. The Commissioner, Municipal Corporation, Shimla, shall appoint an expert to determine the year of construction of the building by examining the material and walls etc. and for that matter a person of the rank of Executive Engineer or above serving or retired, shall be appointed as Local Commissioner by the Commissioner and all the expenses to be assessed by the learned Commissioner at the time of appointment of the Local Commissioner shall be borne by the petitioner. Needless to say that in making the selection of the Local Commissioner, the learned Commissioner shall look into the question that an expert person with good record or reputation is appointed preferably not known to either of the parties and in making the selection, he shall use his own judgment for appointing Local Commissioner with the consent of both the parties. The parties may propose the name of the retired person 8 or serving person of impeccable integrity and the learned Commissioner shall use his own discretion in appointing a person and ask him to visit the spot in presence of both the parties, examine the building and report accordingly. The report shall be submitted by the Local Commissioner within a period of one month as far as possible from the date of appointment made by the learned Commissioner, who shall hear the appeal accordingly and no objections shall be invited to the said report and the parties shall be permitted to make submissions only in regard to the said report. The matter shall be decided afresh by the learned Commissioner in accordance with law and he shall pass appropriate order accordingly. 17. Parties to appear before the Commissioner, Municipal Corporation, Shimla, on 12.9.2011, who shall fix the date for further hearing and proceed with the case in accordance with law. 18. In view of the above terms, the petition stands allowed and the pending miscellaneous application(s), if any, stands disposed of. Caveat Petition No. 343 of 2011 also stands disposed of. Interim order stands vacated. Record retained in the Court be returned back. ( V.K. Ahuja ), August 30, 2011 Judge (BSS)