Sh. Kishori Lal vs Municipal Council, Dalhousie and Others

Deepak Gupta, J.—This appeal by the heirs of the original writ petitioner is directed against the judgment dated 1st June, 2007, passed by a learned Single Judge of this Court whereby he dismissed the writ petition filed by Shri Chhanga Ram, the original writ petitioner, and upheld the order of demolition passed by the Municipal Council, Dalhousie and confirmed by the learned District Judge, Chamba, in appeal. Briefly stated, the facts of the case are that the original writ petitioner, Chhanga Ram, was a lessee of certain land belonging to the Municipal Council, Dalhousie. According to the Municipal Council, the area of this land was only 12 feet x 12 feet. A complaint was received from the field staff of the Municipal Council on 19.09.2000 to the effect that the writ petitioner had demolished the single storeyed structure which was existing previously and had raised a four storeyed building having total constructed area of 210.5 sq. mtrs. and the plinth of the first floor was 69.08 mtrs., i.e. much more than the area leased out to the writ petitioner.

Notice was issued to Shri Chhanga Ram to remove the unauthorized construction and to explain why such construction should not be removed by the Municipal Council. The writ petitioner sent a reply, the translation of which reads as follows:

To,

The Chairman, Municipal Council, Dalhousie.

Subject: construction.

Regarding unauthorized

Respected Sir,

In response to your letter

No. 1573 dated 24th October, it is humbly submitted that I have not carried out any unauthorized construction. I have only demolished the old building and, thereafter, raised new construction and alongwith that have constructed a toilet and a kitchen. I was unaware that in this area, permission had to be taken and the plan had to be sanctioned. Therefore, whatever construction I have wrongly raised may be compounded for which I am ready topay the compensation fees.

Thanking you.

Sd/-

Chhanga Ram, Shopkeeper, Jandrarighat Road, Dalhousie

After receipt of this letter, a resolution was passed by the Municipal Council that the notice is withdrawn because it relates to a matter of repairs. There is, however, no material on record to show whether this resolution was ever communicated to the original writ petitioner.

It appears that a number of such wrong resolutions had been passed by the Municipal Council and a letter was sent by the Executive Officer to the Municipal Council to review the decisions passed in as many as fifteen cases including the present case. The Municipal Council then found that the notice had wrongly been withdrawn since the matter did not concern repair work and as per the field staff, a four storeyed building had been raised in place of the old one storeyed structure and even the dimensions of the new building were much larger than the old building or the land leased to the writ petitioner.

Thereafter, the order of demolition was passed.

The original writ petitioner challenged the order of demolition before the learned District Judge, Chamba, by filing an appeal u/s 212 (1) of the Municipal Act, which was dismissed on 20.10.2001, whereafter a writ petition was filed in this Court and this writ petition was dismissed by a learned Single Judge holding that the construction was totally illegal and since there was no sanctioned plan, the order of demolition had to be upheld.

Mr. Anand Sharma, Learned Counsel for the appellant, submits that once the notice was withdrawn, the Municipal Council could not have taken any action without sending a fresh notice. Normally, we would have accepted such plea, but in the peculiar facts and circumstances of this case, we are unable to accept this contention raised on behalf of the appellant.

As pointed out earlier, there is no material on record to show that any communication was ever sent to the petitioner about the passing of such resolution. Furthermore, on the face of it the earlier resolution passed by the Municipal Council on 8th March, 2001 is totally illegal and against the factual situation. We have quoted hereinabove the letter of the writ petitioner, Chhanga Ram, in which he had clearly stated that after demolishing the old building, he had raised new construction. Thus, by no stretch of imagination can it be said to be a case of repairs. No construction could have been raised without getting a plan sanctioned from the Municipal Council.

Ordinarily, applying the rules of natural justice, we would have directed the Municipal Council to give an opportunity to the petitioner to put forth his case, but here the facts are apparent from the reply of Shri Chhanga Ram himself, who has stated that he has raised a new construction after demolition of the old structure. This reply was sent by Shri Chhanga Ram in response to the notice sent by the Municipal Council in which complete details about the illegal construction alongwith their measurements were given. Thus, we agree with the learned Single Judge that there would be no point in remanding the case to the Municipal Council.

This Court cannot loose sight of the fact that the people cannot be permitted to take the law in their own hands. How can a person, who was a lessee of a property measuring 12 feet x 12 feet, be permitted to raise a construction of a four storeyed building with much greater dimensions. Shri Chhanga Ram, in his reply, did not refute the allegations regarding the dimensions of the building. Thus, it is more than apparent that the construction raised was patently unauthorized, illegal and against the law.

It is contended that Shri Chhanga Ram had died before the judgment was passed by the learned Single Judge and, therefore, the judgment is a nullity. In this case, Shri Chhanga Ram was represented by Shri Anand Sharma, Advocate, who is representing the legal heirs before us. The Court was not intimated about the death of Shri Chhanga Ram and if he had died and his legal heirs were not brought on record, then the writ petition should have abated.

It would also be pertinent to mention that the writ petition was filed by Shri Chhanga Ram through his son, Kishori Lal, who was the Special Attorney of Shri Chhanga Ram. He is also the legal heir of Shri Chhanga Ram and was well aware of the litigation. In case, Shri Kishori Lal chose not to inform the Court about the death of his father and continued to represent his deceased father, then now, as a legal heir, he cannot be allowed to argue that the judgment is a nullity. In any event, we have gone into the entire merits of the case and we find that the learned District Judge as well as the learned Single Judge of this Court were fully justified in upholding the order of demolition passed by the Municipal Council, Dalhousie. We, therefore, dismiss the appeal and direct the Municipal Council to ensure that the illegal construction is demolished by 31st May, 2012.