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Raghbir Singh Vs. State of Punjab and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Writ Petition No. 7693 of 1998
Judge
Reported in(2004)137PLR495
ActsPunjab Municipal Act, 1911 - Sections 195
AppellantRaghbir Singh
RespondentState of Punjab and ors.
Appellant Advocate Rupinder Wasu, Addl. A.G. for Respondent Nos. 1 and 2
Respondent Advocate Amarjit Markan, Adv. for Respondent No. 4
DispositionAppeal dismissed
Excerpt:
.....inhabitants of the area for 'common purposes'.it is strange that despite the aforementioned property not being a public part, or a recreational place, how could it be used or even allowed to be used for 'common public purposes'? prima facie, it seems that the aforementioned government property has been left like a 'no man's land' and can be grabbed by any one at any time depending upon his money and muscle powers. 2 and 3 should not have lost sight of the fact that protecting an influential individual like respondent no......respondent no. 4, owns a plot adjoining the boarding house property of the government; he got a plan sanctioned from the municipality for the construction of a house upon his plot; the sanctioned site plan (annexure p2) reveals that the house was required to be constructed by respondent no. 4 with the following dimensions;-north - 29'-9' north - 29'-9'south - 29'-9'east - 12'west - 16'-6'4. respondent no. 4 however, in flagrant violation of the sanctioned site plan has constructed a house with measurements of 56'x76', as depicted from the photographs (annexure p3); the representations made by the petitioner were not decided by the authorities compelling him to again approach this court through cwp no. 12413 of 1997; this writ petition was disposed of on august 26, 1997 with the.....
Judgment:

Surya Kant, J.

1. (28th April, 2004) - This writ petition, branded as a Public Interest Litigation has been filed under Article 226 of the Constitution of India, for issuance of a writ in the nature of mandamus commanding respondent Nos. 1 to 3 to initiate proceedings under Sections 16, 172, 172-A, 189 and 195 of the Punjab Municipal Act, 1911 (hereinafter referred to as 'the Act'), against respondent No. 4 a former President of Municipal Committee, Sunam, for having made alleged encroachment upon the government land and for constructing his house in violation of the site plan, got sanctioned by him from the municipality.

2. The petitioner retied as Deputy District Attorney and is presently a practising lawyer in the Courts at Sunam, District Sunam; there is a property of the Government of Punjab, known as 'Boarding House' for Government High School for boys at Sunam, however, the same is not used as a Bearding House as Government School has been opened in the rural area; the aforementioned property was in possession of the PWD Government of Punjab and is still shown as a government property at serial No. 367 in the municipal records for the year 1986-87; that the building of the Boarding House was in a dilapidated condition and its debris was removed by respondent No. 4, who turned it into a vacant site; respondent No. 4, thereafter, allegedly encroached upon the vacant land; the petitioner felt aggrieved against the encroachment of the government property by respondent No. 4 prompting him to approach this Court through CWP No. 11034 of 1996; the aforementioned writ petition came up for hearing after notice before this Court on December 17, 1996 and was disposed of in the following terms:-

'We have been informed that the respondent had closed the door. In this view of the matter, this writ petition has become infructuous and is disposed of accordingly. However, in case the petitioner is left with any grievance, he may approach the concerned authority'.

3. Pursuant to the aforementioned order, the petitioner represented to the Director, Local Government, Punjab, Chandigarh, on January 27, 1997 followed by another representation dated June 24, 1997 (Annexure P1), addressed to respondent No. 2; according to the petitioner respondent No. 4, owns a plot adjoining the Boarding House property of the government; he got a plan sanctioned from the Municipality for the construction of a house upon his plot; the sanctioned site plan (Annexure P2) reveals that the house was required to be constructed by respondent No. 4 with the following dimensions;-

North - 29'-9' North - 29'-9'

South - 29'-9'

East - 12'

West - 16'-6'

4. Respondent No. 4 however, in flagrant violation of the sanctioned site plan has constructed a house with measurements of 56'x76', as depicted from the photographs (Annexure P3); the representations made by the petitioner were not decided by the authorities compelling him to again approach this Court through CWP No. 12413 of 1997; this writ petition was disposed of on August 26, 1997 with the following direction;-

'After having heard the learned counsel for the petitioner, this writ petition is disposed of with a direction to the respondents to take a decision on the representation of the petitioner dated 24.6.1997, copy Annexure P5 to this writ petition within three months from the date of receipt of the copy of this order'.

5. However, despite the above reproduced direction issued by this Court, representation of the petitioner was not decided; he pursued the matter with respondent No. 2 by producing the relevant documents including his written submissions (Annexure P4); meanwhile, with a view to help respondent No. 4, a complaint was filed by respondent No. 3, through its clerk under Sections 172, 195 and 221 of the Act; this complaint was, however, not filed by respondent No. 3 himself; the representation moved by the petitioner was finally decided by respondent No. 2 vide an order dated December 17, 1997 (Annexure P7); the aforementioned order reveals that respondent No. 2 refused to take any action in the matter on the pretext that the complaint had already been filed by a Clerk of the Municipality against respondent No. 4; the petitioner, therefore, served a notice upon respondent No. 2 informing him that the directions issued by this Court had not been complied with; however, the contention of the petitioner mentioned in the legal notice too has been rejected vide order dated April 28, 1998 (Annexure P8) and the complaint filed against respondent No. 4 was also withdrawn vide order dated April 22, 1998 (Annexure P9). Aggrieved by the aforesaid action of the official respondents, the petitioner has approached this Court through third round of litigation.

6. Upon notice, written statements have been filed on behalf of respondent Nos. 1 and 2 as well as respondent No. 3.

7. When this case was taken up for final hearing on January 21, 2004 a request was made on behalf of respondent No. 4 that he may be granted one last opportunity to file his written statement which he had not filed so far. Since no objection was raised on behalf of the petitioner, last opportunity was granted to the 4th respondent to file his written statement, pursuant to which he too has filed his written statement.

8. The petitioner has filed his replication to the aforementioned written statements.

9. I have heard Shri Vikas Singh learned counsel for the petitioner, Mrs. Rupinder Wasu, learned Addl. A.G. Punjab for respondent Nos. 1 and 2 and Shri Amarjit Markan, learned counsel for respondent No. 4, and have perused the record.

10. Two fold contentions have been made by Shri Vikas Singh, learned counsel for the petitioner. According to him;-

(i) Respondent No. 4 has raised construction of his Double Storey House in total violation of the site plan got sanctioned by him from the Municipality. Construction has been carried out by respondent No. 4 by misusing his position as an elected Councillor and President of the respondent Municipality during the previous tenure, which expired in September, 1997;

(ii) Respondent No. 4 has encroached upon the government land described as Boarding House which is adjoining his house warranting action under Section 172-A of the Act.

11. In support of his first contention, learned counsel for the petitioner has relied upon the sanctioned site plan (Annexure P2) and the photographs, Annexures P3, P10 and P11 to demonstrate that whereas the Single Storeyed House was required to be constructed as per the sanctioned site plan by raising construction over a smaller area, respondent No. 4 has constructed Double Storeyed House upon an area measuring 56'x76' in utter disregard to the sanctioned plan. In relation to his second contention Shri Vikash Singh, learned counsel for the petitioner pointed out that respondent No. 4 has opened a gate to gain access to the adjoining land of the Boarding House and is using the same exclusively for his private comfort as a lawn/open space.

12. On the other hand, Mr. Markan leaned counsel representing respondent No. 4, while questioning the locus standi and bonafide of the petitioner in pursuing the present litigation, has categorically stated that the vacant compound of the Boarding House, the Government property is being used by all the inhabitants of the area for their 'common purposes' and not by respondent No. 4. He has also denied the allegations regarding opening of the gate, which according to him, was closed down as per notice taken by this Court in its order dated December 17, 1996 passed in the first writ petition No. 11034 of 1996 filed by the petitioner.

13. With regard to the first allegation, namely construction of the house in violation of the sanctioned site plan Mr. Markan Learned counsel for respondent N6.4 when confronted with the averments made in the written statement filed by respondent No. 4 himself could not deny the fact that the actual construction raised by respondent No. 4 at the spot is in total violation of the sanctioned site plan (Annexure P2). Mr. Markan has, however, taken a plea that no action can be taken at this stage against respondent No. 4 under Section 195 of the Act for erecting a building in violation of the sanctioned site plan, as any action like demolition of the unauthorised construction or compounding thereof by accepting compensation could be taken within a period of six months from the completion of the building and the aforementioned period having expired, respondent No. 4 is immune from any such penal action.

14. Having heard the learned counsel for the parties, I am of the view that so far as the second submission of the learned counsel for the petitioner is concerned, namely the alleged encroachment by respondent No. 4 of the government property described as a Boarding House no further direction is required to be issued keeping in view the categorical stand taken by respondent No. 4 in his written statement that not even an inch of the land of the Boarding House is in his possession or has been encroached upon by him. As per the site plan (Annexure R2) placed by respondent No. 4 on record, no gate has been opened by him towards open ground of the Boarding House rather the two properties have been segregated by a boundary wall. Respondent No. 4 also made a statement before this Court in CWP No. 11034 of 1996 as incorporated in the order dated December 17, 1996 that he had closed the door opened towards the Boarding House property. In view of this, no further direction is required to be issued, though it shall remain open for the petitioner to adopt appropriate legal recourse, if he finds that respondent No. 4, in contravention of the statement made by him before this Court and/or in the written statement in the present case, has either opened a gate towards the Boarding House ground or has encroached upon the said property in whatsoever manner. However, in the peculiar facts and circumstances of this case, certain directions are being issued to respondent Nos. 1 and 2 in relation to the protection and utility of the government property known as Boarding House. It is a pity that not only the aforementioned government property is not being used for the purpose it was built, it has also j been left completely unattended giving full opportunity to the greedy land grabbers to have eyes set upon it. The authorities of the State Government are Trustees of the public funds and properties. It is not only their legal obligation but a pious duty as well to ensure that each penny and part of public funds and properties as the case may be are utilised for public welfare causes. The material on record of this case reveals that the Boarding House remained in a dilapidated condition for years together and its debris have already been removed by certain persons (though allegations have been made against respondent No. 4). It's open space is being used by the inhabitants of the area for 'common purposes'. It is strange that despite the aforementioned property not being a public part, or a recreational place, how could it be used or even allowed to be used for 'Common Public Purposes'? Prima facie, it seems that the aforementioned government property has been left like a 'no man's land' and can be grabbed by any one at any time depending upon his money and muscle powers. This cannot be permitted to happen with a government property, which belongs to the public and must be utilised for their cause only.

15. Coming to the first contention regarding unauthorised construction raised by respondent No. 4 in violation of the sanctioned site plan, 1 find that there is a statutory mandate contained in Sections 189, 190, 192 and 193 of the Act which prohibits erection or re-erection of a building in violation of the sanctioned building plan, Building Bye-laws, if any, framed by the Municipality and in the absence of any such Bye-laws, in violation of the provisions of Section 190 of the Act. If a person erects or re-erects a building contrary to these statutory provisions. Section 195 of the Act, provides the penal consequences, which reads 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 by-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 a manner as it may deem necessary within the period specified in such notice;

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.

16. It is true that action under Section 195 of the Act, regarding demolition of unauthorised construction or to regularise the same by accepting compensation from the defaulter can be taken by a Municipality within a period of six months from the completion of the building. The second proviso to the aforementioned provision mandates that if the construction has been raised in contravention of the Building Scheme drawn up under Section 192 of the Act, then the Committee shall require such building to be demolished or altered, namely, no such construction can be regularised by accepting payment of compensation from the defaulter.

17. As regard to the plea taken by the respondent No. 4 that the Municipality could take action for demolition alteration or regularisation of his unauthorised construction only before the expiry of a period of six months of the date of completion of such construction, in my view, the same is totally misconceived. This provision does not and cannot impinge upon the powers of this constitutional Court from exercising its extra ordinarily writ jurisdiction irrespective of the expiry of any amount of period of an unauthorised construction. Even the powers of the Civil Court to issue mandatory injunction, if so required, for removal of unauthorised construction after expiry of period of six months of such construction are un-affected.

18. Coming to the objection raised by respondent No. 4 regarding bonafide and locus stand! of the petitioner to move this Court through a Public Interest Litigation it cannot be over looked that respondent No. 4 was an elected Councillor and also remained President of the respondent Municipality and he had his own clout in the respondent authorities. For the officials of the local Municipality, he was a heavy weight against whom they dared not take any action. The facts speak for themselves. The manner in which the complaint under Sections 172, 195 and 221 of the Act, was filed against respondent No. 4 through the Building Clerk of the Municipality instead of Executing Officer himself and was subsequently withdrawn vide order dated April 22, 1998 (Annexure P9) is a clear indication of the calculated attempts made by the authorities to bail out respondent No. 4 for his illegal and unauthorised action of raising construction in violation of the sanctioned Building Plan. Strangely, the complaint was withdrawn on the statement made on behalf of the Municipality that 'the matter has been compromised between the parties'. Where is that compromise? How could the Municipality compromise with the offender? What were the considerations for the compromise, if any? Who had issued instructions to the learned counsel for the Municipality to make the aforementioned statement? - are some of the questions - which the authorities are required to answer. The respondent Nos. 2 and 3 should not have lost sight of the fact that protecting an influential individual like respondent No. 4, for his act of raising construction in violation of the sanctioned site plan and or Building Bye-laws, would not only breed corruption but also encourage and promote hundred of such violators. The authorities are protectors of law and are not expected to join hands with the violators thereof. In this factual backdrop, the initiation of writ proceedings by the petitioner-certainly serve the cause of general public, though the indirect rivalry in the local politics as alleged by Respondent No. 4 also might be one of his motives to move this Court. However, the writ petition having been not rejected at the threshold its too late to knock it out on this technicality at this stage of final hearing.

19. Be that may, I am of the view that both ends of justice will be appropriately met by issuing the following directions;-

(i) Respondent No. 3 shall forthwith but not later than one month from the date of receipt of a certified copy of this order, serve a notice upon respondent No. 4, calling upon him to explain as to whether or not the construction in question has been raised strictly in conformity with the sanctioned site plan and or Building Bye-Laws, if any, and/or in accordance with the Building Scheme proposed to be drawn up under Section 192 of the Act? The respondent No. 4 shall submit his reply if any, within a period of one month from the date of receipt of the notice;

ii) On consideration of the reply/explanation given by respondent No. 4 the Municipality shall objectively decide as to whether the building raised by respondent No. 4 if found to have been constructed unauthorisedly is liable to be demolished or altered fully or partly;

iii) The Municipality shall also examine as to whether the building raised by respondent No. 4 can be regularised or not on payment of requisite compensation and may be regularised the same provided that such regularisation does not contravene the proposed Building Scheme, if any, drawn up under Section 192 of the Act;

iv) If the Municipality is of the view that the construction raised by respondent No. 4 cannot be regularised and the same is required to be demolished or altered wholly or partly, it shall given three months time to respondent No. 4 to carry out necessary demolition/alteration at his own expenses.

v) If respondent No. 4 fails to carry out the demolition/alterations as directed by the Municipality, the Municipality shall carry out the same within a period of 15 days after the expiry of three months period and it shall be entitled to recover costs of the expenses incurred by it for carrying out such demolition/alterations from respondent No. 4;

vi) Irrespective of the fact as to which Department of the Government of Punjab owns the Boarding House property proper fencing thereof, shall be carried out by Respondent Nos. 1 and 2 immediately but not later than three months from the date of receipt of a certified copy of this order. The Government department which owns this property shall decide without any delay as to for what public purpose or cause, the aforementioned property can be utilised and necessary steps in this regard shall be taken in due course of time. If it finds that there is no public purpose for which the property can be utilised and/or its maintenance is a liability upon the State exchequer it will be open for the concerned department to auction this property by giving wide publicity in accordance with law so that its proceeds become part of the consolidated fund of the State. It will, however, be ensured without any exception that no one however high he may be is able to encroach upon the aforementioned property or utilise it for his private use and comforts.

The writ petition is disposed of in the terms stated above with costs of Rs. 5000/- which respondent No. 4, shall deposit with the Punjab State Legal Services Authority within a period of one month from the date of receipt of a certified copy of this order.


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