IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No.111 of 2010 Reserved on: 7.12.2010 Date of decision: 14.12.2010 Ravi Kant Puri …. Petitioner Versus Municipal Corporation, Shimla ….. Respondent Coram: The Hon’ble Mr. Justice Deepak Gupta, J. Whether approved for reporting? No For the petitioner: Mr.G.C.Gupta, Sr.Advocate with Mr.Ashish Jamalta, Advocate. For the respondent: Mr.Shrawan Dogra, Advocate. _____________________________________________ Deepak Gupta, J.(Oral) 1. By means of this petition, the petitioner has prayed that the order dated 2.1.2010 and the consequent notice dated 22.1.2010 of the Municipal Corporation, Shimla be quashed and set aside. 2. The brief facts of the case are that the petitioner is selling handicraft articles outside his shop situated in Regal Building, Lakkar Bazar, Shimla. According to the respondent-Corporation, part of this shop covers the 2 municipal drain/street whereas according to the petitioner, the shop is on the private land and was constructed prior to the year 1975 and, therefore, the Municipal Corporation is not entitled to initiate any action for removal of the same. 3. Sh.G.C.Gupta, learned counsel for the petitioner submits that in view of the judgment passed by the learned Sub Judge 1st Class (2), Shimla in Civil Suit No.157/1 of 95/91 decided on 25.8.2001 which judgment was upheld by the learned Additional District Judge, Fast Track Court, Shimla on 24.11.2005, it has been found that the construction of the shed of the petitioner is not on municipal road or drain and further that the shed was constructed prior to the year 1975 and, therefore, he contends that old notice could not have been cancelled and amended notice could not have been issued to the petitioner. 4. The petitioner herein had filed a Civil Suit before the learned Sub Judge 1st Class (2), Shimla praying that a decree for permanent prohibitory injunction restraining the defendants from demolishing the existing structure outside the shop No.3 in Regal Cinema building except in due process of law be passed. 3 5. It was alleged by the petitioner that he was running the shop since 1975 and had raised a shed outside the said shop for displaying and selling handicrafts. On 31.1.1991, the Junior Engineer of the Municipal Corporation came on the spot and threatened to demolish the said structure without issuing any notice under Sections 268 and 269 of the Municipal Corporation Act. He, therefore, prayed that the structure, in question, should not be demolished except in due process of law. 6. The Municipal Corporation contested the suit and according to it, the stall had been unauthorisedly raised by the plaintiff on 31.1.1991 which was demolished in exercise of the powers conferred under Section 247 of the Municipal Corporation Act. It was alleged by the Corporation that the shed was demolished and removed on 1.2.1991 with the assistance of the police but the plaintiff has again re- constructed the structure on the spot. The main issue framed in the suit is as follows:- “Whether the plaintiff is running a shop over the disputed shed since 1975 and is entitled to the relief of injunction as prayed for? OPP” 4 7. While recording the finding, the learned Trial Court answered issue No.1 in favour of the plaintiff. After going through the reasons for findings on issues No.1, 2 and 7, I find that there is no cogent finding given by the learned Trial Court as to when the shed (dhara) was constructed. In fact, the learned Trial Court has found that the demolition order with regard to the ‘dhara’ was passed on 31.1.1991 and this order was executed by Sh.Paras Ram Chauhan, J.E. on 1.2.1991. The learned Trial Court has held that from the evidence on record, it can be inferred that the ‘dhara’ was demolished and removed by the Municipal Corporation and its findings in this regard are as follows:- “Taking into account the aforesaid documents and oral evidence coming on the record, it seems that initially the dhara in dispute was demolished by the defendants, but despite this the fact remains that the dhara is still existing on the spot even if it was demolished.” 8. The learned Trial Court then went on to hold that the defendants have failed to prove that the existing structure is on a public path or street and, therefore, came to the conclusion that Section 247 of the Municipal Corporation Act did not apply and hence 5 the defendants could not demolish the structure without issuing notice to the plaintiff. The learned Trial Court held that Sections 268 and 269 of the Act were attracted and, therefore, notice was required to be given. The suit was decreed in the following terms:- “In view of my findings given above, the suit of the plaintiff is decreed and the defendants are hereby restrained from demolishing the existing shed as shop No.3 in Regal Building, Lakkar Bazar, Shimla except in due process of law. No order as to costs. Decree sheet be prepared accordingly. File after completion be consigned to the record room.” 9. The appeal filed by the Municipal Corporation has been dismissed but it would be pertinent to mention that the learned Lower Appellate Court while dismissing the appeal had made the following observations:- “The decree is not in absolute terms but qualified one. If it is found that shed is on public street or construction was raised unauthorisedly, the Municipal Corporation is competent to initiate appropriate proceedings in accordance with law. This aspect has been taken care of by the learned Trial Court. There is no infirmity or illegality in the order passed by the Trial Court. As such this point is decided in the negative.” (emphasis supplied) 6 10. This shows that the learned Lower Appellate Court did not go into the question as to whether the shed is on public street or has been raised unauthorisedly and only directed that the Municipal Corporation is competent to initiate appropriate proceedings in accordance with law. In the present case, notice was issued to the petitioner under Section 253 of the H.P Municipal Corporation Act, 1994 on 24.6.2001 that he had constructed a shed/shop measuring 1.80 x 3.55 square meters without any sanction. The petitioner filed reply to the notice. After hearing the parties and going through the record, the Commissioner passed an order, relevant portion of which reads as follows:- “2.1.2010 Case called. Present Sr.A.P., J.E. for the MC Shimla & Mr.Ravi Kant alongwith his counsel Mr.Deepak Gupta. I have gone through the report of the A.P. Branch, which has been prepared in consultation with Law Officer, MC, Shimla. It has been made clear in the order dated 24.11.2005 passed by the learned Addl.District Judge (Fast Track), Shimla that if it is found that the shed is on public street or construction was raised unauthorizedly then Municipal Corporation could initiate appropriate proceedings in accordance with law. In pursuance to this order, a notice No.2 dated 24.1.2006 was issued under section 253 of the HPMC Act, 1994. This notice needs to be amended to the extent that the respondent 7 has encroached upon the public street/drain and construction was carried out unauthorisedly in the existing Regal building. This amended notice be issued within a period of one week from today and the respondent will file the reply to the amended notice within a period of two months. The case to come up on 20.3.2010. Commissioner, M.C., Shimla.” 11. Thereafter, amended notice was issued. Now the plaintiff urges that since this issue as to whether the encroachment stood upon public street/drain has been decided by the learned Civil Court, the Municipal authorities cannot go into this question. I am unable to accept this argument. The learned District Judge has specifically left this question open and has clearly stated that the decree is not in absolute terms and if the shed is found to be on a public street or constructions raised unauthorisedly, the Municipal Corporation can take action. The only relief granted to the petitioner was that the action should be in accordance with the due process of law after issuing him notice. The petitioner can raise this matter before the concerned authority and can prove that he has not done any construction on municipal land or drain. 8 12. In my view, the Civil Courts did not give any authoritative pronouncement in this regard and the finding of the learned Trial Court has merged with the finding of the learned Lower Appellate Court. Furthermore, at that stage, the Court was only concerned with the issue whether notice should have been issued or not. Once notice is issued, the petitioner shall have a right to show that his construction is not on a public street or drain by leading appropriate evidence before the Corporation. 13. In view of the above discussion, I find no merit in the petition which is accordingly rejected. No order as to costs. December 14, 2010 ( Deepak Gupta ) (m) Judge