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Municipal Corporation of Delhi Vs. Surjit Kaur - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtDelhi High Court
Decided On
Case NumberRegular Second Appeal No. 147D of 1963
Judge
Reported inAIR1973Delhi198; ILR1972Delhi1
ActsDelhi Municipal Corporation Act, 1957 - Sections 516(1); Punjab Municipal Act, 1911 - Sections 195
AppellantMunicipal Corporation of Delhi
RespondentSurjit Kaur
Advocates: D.D. Chawla and; B.T. Singh, Advs
Cases ReferredMunicipal Corporation of Delhi v. Bheri Rain
Excerpt:
.....in 1957--notice for demolition not given within 6 months--whether liability to demolish building incurred--time limit thereof--punjab municipal act, 1911, section 195.; where the respondent was not served with a demolition notice under section 195 of the punjab municipal act, 1911 within 6 months from the unauthorised construction in 1957, the appellant (municipal corporation of delhi) contended that the respondent had incurred a liability to demolish the building which was a liability with the appellant under the delhi municipal corporation act, 1957 which came into force on 9th april 1958. held, that the liability would have been incurred only if a notice had been delivered to her within six months from the completion of the building. the liability was conditional upon a..........arose turn consideration was whether the appellant corporation was entitled in law to issue the notice of demolition.(4) the appellant corporation was established by the delhi municipal corporation act. 1957, which came into force on april 9, 1958 prior to this the punjab municipal act, 1911. hereinafter referred to as 'the punjab act' was applicable. section 195 of the punjab act. in so far as it is relevant, provided.- '195.should a building he begun, erected or re-erected- (a) without sanction as required by section 189(1); 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:. .........'admittedly, building in.....
Judgment:

S.N. Andley, J.

(1) This regular second appeal was referred to a larger Bench at the instance of one of us (Andley J.) because at that time it was felt that the view expressed by Deshpande, J. in R.S.A. No. 328-D of 1962 in re: Municipal Corporation of Delhi v. Bheri Rain(1) which was decided on January 20, 1971, may require recon sideration. After hearing arguments in this matter, we feel that this appeal can be decided upon its own facts.

(2) Shortly stated, the facts are that the respondent had built a building, according to her, in 1957 and, according to the appellant Corporation, in 1960 without its sanction and a notice was served upon the respondent by the Corporation requiring her to demolish the prenmises. The respondent filed a suit in the trial Court for a permanent injunction to restrain the appellant Corporation from demolishing the building. The trial Court by its judgment and decree dated January 10, 1962 dismissed the suit. The respondent thereupon filed an appeal which was heard by the Additional Senior Subordinate Judge. Delhi, who allowed the appeal by his judgment dated January 28. 1963.

(3) One of the questions of fact which was in issue between the parties was as to the year in which the building had been constructed. After appreciating the oral and documentary evidence on the record. the first appellate Court held that the building had been constructed by the respondent in 1957 and not in 1960. On this finding, which is binding on. this Court in second appeal and, it may be stated, has not been challenged by the appellant Corporation, the question that arose turn consideration was whether the appellant Corporation was entitled in law to issue the notice of demolition.

(4) The appellant Corporation was established by the Delhi Municipal Corporation Act. 1957, which came into force on April 9, 1958 Prior to this the Punjab Municipal Act, 1911. hereinafter referred to as 'the Punjab Act' was applicable. Section 195 of the Punjab Act. in so far as it is relevant, provided.-

'195.Should a building he begun, erected or re-erected- (a) without sanction as required by section 189(1); 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:. .........'

Admittedly, building in question was erected without the requisite sanction and. thereforee, if the Punjab Act had continued to apply, the Municipality would have been entitled to require the respondent to demolish the said building. The first appellate Court has not given any finding as to the exact date or time when the building was constructed by the respondent other than saying that it was constructed in 1957. Taking the last day of the year 1957 to be the day when the building was constructed, the Municipality, if it had continued. could have served the notice of demolition under the aforesaid section by or before June 30, 1958.

(5) As stated earlier, the Corporation was established under the Delhi Municipal Corporation act. 1957, hereinafter referred to as 'the Corporation Act', with effect from April 9, 1958 and by reason of clause (b) of sub-section (1) of section 516 of the Corporation Act read with its Thirteenth Schedule, the Punjab Act ceased to have effect within Delhi. Then clause (b) of sub-section (2) of this section provided that.-

'ALLdebts, obligations and liabilities incurred, all contracts entered into and all matters and things engaged to be done by, with or for any of the bodies or local authorities specified in the Second Schedule before such establishment shall be deemed to have been incurred, entered into or engaged to be done by, with or for the Corporation or the municipal authority concerned.'

THEcontetion on behalf of the appellant Corporation is that the respondent had incurred a liability with the Municipal Committee. Delhi, which is one of the authorities specified in the Second Schedule to the Corporation Act, to have the building demolished by reason of section 195 of the Punjab Act read with section 343 of the Corporation Act. Section 343 has to be read with and in the context of section 336 of the Corporation Act. Section 336 of the Corporation Act empowers the Commissioner to sanction or refuse, inter alia, the erection of a building. Then sub-section (1) of section 343 provides.-

'343.(1) Where the erection of any building or execution of any work has been commenced, or is being carried on, or has been completed without or contrary to the sanction referred to in section 336 or in contravention of any condition subject to which such sanction has been accorded or in contravention of any of the provisions of this Act or bye-laws made there under, the Commissioner may, in addition to any other action that may be taken under this Act, make an order directing that such erection or work shall be demolished by the person at whose instance the erection or work has been commenced or is being carried on or has been completed, within such period, (not being less than five days and more than fifteen days from the date on which a copy of the order of demolition with a brief statement of the reason thereforee has been delivered to that person) as may be specified in the order of demolition :

PROVIDED that no order of demolition shall be made unless the person has been given by means of a notice served in such manner as the Commissioner may think fit a reasonable opportunity of showing cause why such order shall not be made: PROVIDEDfurther that where the erection or work has not: been completed, the Commissioner may by the same order or by a separate order, whether made at the time of the issue of the notice under the first proviso or at any other- time, direct the person to stop the erection or work until the expiry of the period within which an appeal against the order of demolition, if made may be preferred under sub-section (2).'

ITwill, thereforee, he seen that there is no obligation upon the Corporation under the Corporation Act to issue a notice of demolition within six months from the completion of the building and such a notice can be issued without limitation of time. It is, thereforee. contended on behalf of the appellant Corporation that the liability incurred by the respondent to have the building demolished under section 195 of the Punjab Act is, by reason of clause (b) of sub-section (2) of section 516 of the Corporation Act. a liability incurred with the appellant Corporation and, being so, the appellant Corporation can issue a notice of demolition under section 343 without being obliged to do so within six months from the completion of the building.

(6) It is no doubt true that a liability was incurred by the respondent under section 195 of the Punjab Act to demolish the building upon a notice being delivered to her but this liability would have been incurred only if a notice had been delivered to her within six months from the completion of the building and that is the extent of the liability incurred by her. The liability was conditional upon a notice being delivered to her within six months from the completion of the building and it cannot be said to be a liability incurred without any limit of time. The Corporation cannot take advantage of the fact that in section 343 of the Corporation Act, there is no limit of time for the service of a notice of demolition because the Corporation can enforce only such liabilities which have been incurred under the Punjab Act and to determine the extent and nature of the liability, the provisions of the Punjab Act will have to be looked into notwithstanding its repeal. The provisions contained in sections 336, 343 and 344 of the Corporation Act are, by their language, of prospective operation and the appellant Corporation cannot rely upon these provisions to issue a notice of demolition after the expiry of six months from the completion of the building as was done in the present case in the year 1960.

(7) It may be that a period of six months had not expired between the completion of the building and the coming into force of the Corporation Act, If the Corporation wanted to exercise the power of demolition by reason of clause (b) of sub-section (2) of section 516 of the Corporation Act, they ought to have acted within six months from the completion of the building and having failed to do so, they had no right to take action after the expiry of six months. Upon the expiry of six months from the completion of the building, no liability remained upon the respondent to have the building demolished as the liability ceased to remain a liability upon the expiry of this period.

(8) This appeal is, thereforee, dismissed but in view of the fact that the building was admittedly constructed without the requisite sanction under the Punjab Act, we make no order as to costs.


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