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Raj Krishan Vs. Chief Commissioner, Delhi and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Writ No. 180 of 1951
Judge
Reported inAIR1952P& H176
ActsPunjab Municipal Act, 1911 - Sections 16(1); Constitution of India - Sections 226
AppellantRaj Krishan
RespondentChief Commissioner, Delhi and anr.
Appellant Advocate Bhagwat Dayal and; Satish Kumar, Advs.
Respondent Advocate Daya Kishan Mahajan, Adv. for;Adv.-General
Excerpt:
.....would not be objected to by the defendant. 163 of 51, the deputy commissioner, delhi, called upon shri raj krishan to show cause why action under section 16 (1) (e) of the act be not taken against him for constructing without permission a wall and a garage and a well on the municipal land. 2. a well has been dug on government land vested in the committee along with the boundary wall of kothi no. there is not a syllable on the record to show that before the notice was issued to shri raj krishan to explain the circumstances complained against him the state government was seized of the case or there was any proposal before the state government that shri raj krishan should be removed from the membership of the municipal committee. proper notices however were issued by the deputy..........(75) /51 l.s.g., dated the 13th of august 1951, removing the petitioner from the membership of the delhi municipal committee and disqualifying him for election for three years.2. briefly summarised the facts giving rise to these proceedings are these. on the 22nd ofnovember 1949 'shri' raj krishan instituted civil suit no. 1058 of 1949 for injunction that pursuant to notice under sections 172, 195 and 220 of the punjab municipal act, 1911, hereinafter referred to as the act, the municipal committee, delhi, should not demolish the buildings or structures belonging to him. that suit failed and was dismissed with costs on the 11th of april 1951.3. from the decree passed by the court of first instance on the 11th of april 1951, 'shri' raj krishan appealed in the court of the senior.....
Judgment:

Harnam Singh, J.

1. 'Shri' Raj Krishan applies under Article 226 of the Constitution of India for the issuance of a writ of 'mandamus' directing the Chief Commissioner, Delhi, to withdraw Notification No. F. 2 (75) /51 L.S.G., dated the 13th of August 1951, removing the petitioner from the membership of the Delhi Municipal Committee and disqualifying him for election for three years.

2. Briefly summarised the facts giving rise to these proceedings are these. On the 22nd ofNovember 1949 'Shri' Raj Krishan instituted Civil Suit No. 1058 of 1949 for injunction that pursuant to notice under Sections 172, 195 and 220 of the Punjab Municipal Act, 1911, hereinafter referred to as the Act, the Municipal Committee, Delhi, should not demolish the buildings or structures belonging to him. That suit failed and was dismissed with costs on the 11th of April 1951.

3. From the decree passed by the Court of first instance on the 11th of April 1951, 'Shri' Raj Krishan appealed in the Court of the Senior Subordinate Judge, Delhi. In dismissing the appeal the Senior Subordinate Judge said:

'The structure in dispute is clearly an encroachment and amounts to an intrusion of rights of the Committee, and the plaintiff being a Municipal Commissioner can be expected to know, and in fact he had knowledge as to the consequences of this unauthorised construction, rather he is estopped to say that this structure would not be objected to by the defendant. The construction or the structure is on the street, and amounts to an encroachment and no plan was submitted to the Committee for such construction. There-fore Resolution No. 2/2 passed in a special meeting, dated 16-7-1948, Item No. 1, would not apply. Item No. 2 would also not apply for this was not a case of repairs, but of erection of a building. The plaintiff is a Municipal Commissioner and whenever any employee of the Committee went to the place in dispute and pointed out to him that the structure in dispute was not sanctioned, the plaintiff used to tell him that he had obtained the sanction for it.'

4. Prior to the dismissal of Civil Appeal No. 163 of 51, the Deputy Commissioner, Delhi, called upon Shri Raj Krishan to show cause why action under Section 16 (1) (e) of the Act be not taken against him for constructing without permission a wall and a garage and a well on the municipal land. That notice reads:

'It has been 'reported to me' that you have committed the following breaches of the Municipal bye-laws which apparently show that you have flagrantly abused your position as a member of the Committee. Please therefore explain within one week of the receipt of this letter in writing the circumstances under which it was done and also show cause why action should not be taken against you under Section 16 (1) (e) of the Punjab Municipal Act, 1911.

1. A wall measuring 11' 8' x 10' 9' has been built along with the unauthorised garage at Kothi No. 1 Darya Ganj, Delhi, without proper permission and against the rules.

2. A well has been dug on Government land vested in the Committee along with the boundary wall of Kothi No. 1, Darya Ganj, Delhi, (a portion of which also lies on the centre road of Kothi No. 2).'

5. In response to the notice Shri Raj Krishan submitted his explanation to the Deputy Commissioner on the 28th of January 1950. That explanation was not found satisfactory and acting under Section 16 (1) (e) of the Act, the Chief Commissioner, Delhi, has issued a notification removing Shri Raj Krishan from the membership of the Committee and disqualifying him for election for a period of three years.

6. In the circumstances described above 'Shri' Raj Krishan applies for the writ of 'mandamus' as stated above.

7. Mr. Bhagwat Dayal, learned Counsel for the applicant, urges that the mandatory provisions of the proviso to Sub-section (1) of Section 16 of the Act have not been complied with. As given in thenotice the complaint was made to the Deputy Commissioner, Delhi, and on receipt of that complaint he issued notice to Shri Raj Krishan under the proviso to Section 16 (1) of the Act. There is not a syllable on the record to show that before the notice was issued to Shri Raj Krishan to explain the circumstances complained against him the State Government was seized of the case or there was any proposal before the State Government that Shri Raj Krishan should be removed from the membership of the Municipal Committee. The proviso to Section 16 (1) of the Act reads:

'Provided that before the State Government notifies the removal of a member under this section 'the reasons for his proposed removal shall be communicated' to the member concerned, and he shall be given an opportunity of tendering an explanation in writing.'

8. In plain English the proviso cited above contemplates the existence before the State Government of a proposal for the removal of the member before the giving of notice to the member to show cause why he should not be removed. In the written statement of the Chief Commissioner it is said:

'13. In para. 13 it is only admitted that this respondent did not issue any notice to petitioner to take action against the petitioner under Section 16 (1) of the Punjab Municipal Act. Proper notices however were issued by the Deputy Commissioner, Delhi, which to the best of my belief fulfil the requirements of law.'

9. In no part of the written statement is there any suggestion that the notice given to 'Shri' Raj Krishan within the meaning of the proviso was given under the authority of the State Government. In the notice under the proviso to Section 16 (1) of the Act reasons for the 'proposed' removal are to be communicated to the member concerned but in the present case 'there was no proposal' before the State Government on the 18th of January 1950, when the notice relied upon was given by the Deputy Commissioner, Delhi, to 'Shri' Raj Krishan. The fact that the Deputy Commissioner thought before he gave notice that the case of 'Shri' Raj Krishan fell within Section 16 (1) (e) of the Act does not satisfy the requirements of the Act. Clearly the 'mandatory provisions of the proviso have not been followed. In such cases it has to be borne in mind that power given to an authority to act under a statute must be exercised in the manner provided by the statute and in no other manner.

10. For the reasons given above, I think that the applicant has made out a case for the issuance of the writ sought in the application under Article 226, Constitution of India. Indisputably writ of 'mandamus' lies to compel the restoration of a person to an office of which he has been wrongfully dispossessed, provided such office is of a public nature. These conditions are satisfied in the present case.

11. In the result, I allow the application and direct the Chief Commissioner, Delhi, to withdraw the notification whereunder 'Shri' Raj Krishan applicant has been removed from the membership of the Municipal Committee, Delhi, and disqualified for election for a period of three years.

12. In these proceedings I order the respondent to pay the costs of the applicant which I assess at Rupees 75/-.

Weston, C.J.

13. I agree.


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