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2000 DIGILAW 301 (HP)

TULA RAM SHARMA v. MUNICIPAL CORPORATION

2000-11-20

C.K.THAKKER, K.C.SOOD

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JUDGMENT C.K. Thakker, C.J.—Admitted. Ms. Abhilasha Kumari, learned Counsel appears and waives service of notice after admission on behalf of the respondent-Corporation. In the facts and circumstances of the case, the matter is taken up for final hearing today. 2. A short question arises for consideration of this Court is whether the learned District Judge, Shimla is right in holding that the appeal filed by the petitioner-appellant under Section 253 of the Himachal Pradesh Municipal Corporation Act, 1994, (hereinafter referred to as the Act) is not competent. 3. The case of the petitioner was that after obtaining necessary clearance of plans, he made certain construction. The construction, according to the petitioner, therefore, was in accordance with law. The Corporation, on the other hand, was of the view that the construction made by the petitioner was not as per sanctioned and approved plans. A demand notice, therefore, was issued by the Corporation on 17th August, 1998 and 29th July, 1998 and the petitioner was called upon to pay an amount of Rs. 29,121/- as compounding fee for regularisation of illegal construction made without prior permission of the municipality. 4. The petitioner, being aggrieved by the above order, preferred an appeal before the District Judge, under Section 253 of the Act. When the appeal came up for hearing, the learned District Judge read the provisions of sub-sections (1) and (2) of Section 253 of the Act and holding the appeal not maintainable, inter alia observed: "The appeal on the face of it is not competent. Appeal lies to the District Judge, under Section 253 (2) against an order passed by the Commissioner, Municipal Corporation under the provisions of Section 253 (1) of the Municipal Corporation Act. Section 253 (1) of the Municipal Corporation Act authorises the Commissioner, Municipal Corporation to pass an order of demolition of any erection of any work which has been raised in contraventions of the provisions of the Act or bye-laws or in contravention of any condition subject to which sanction for erection of any work has been accorded. That means it is against an order of demolition of unauthorised construction passed by the Commissioner, Municipal Corporation, under Section 253(1) of the Municipal Corporation Act, that the District Judge can entertain and hear the appeal. That means it is against an order of demolition of unauthorised construction passed by the Commissioner, Municipal Corporation, under Section 253(1) of the Municipal Corporation Act, that the District Judge can entertain and hear the appeal. In the present case, the order under appeal is not for demolition of any construction but for payment of composition fee for the regularisation of the alleged construction/repairs. Thus, the appeal is incompetent. The same is, therefore, dismissed. Record be completed and consigned to the record room. Record of the Commissioner, Municipal Corporation be returned with a copy of this judgment." 5. It may be stated that after the petition was entertained by this Court and notice was issued, the respondent-Corporation appeared. In CMP No. 491 of 2000 interim order was passed asking the petitioner to deposit the amount and directing the Municipal Corporation to supply water and sewerage connections. The said order has been complied with by the Corporation. 6. It was contended by Ms. Abhilasha Kumari that the petition has now become infructuous. According to her, two prayers were made by the petitioner in the petition, namely; to quash and set aside Annexures P-l and P-2. Both related to building plans. As the action is already taken by the Municipal Corporation and the construction was ordered to be regularised on compounding the case, the petitioner cannot have any grievance. She also submitted that in view of the order passed by this Court and regularisation of construction made by the petitioner, the petition deserves to be disposed of. 7. Mr. K.D. Sood, learned Counsel, however, submitted that as per the order passed by this Court, the amount of Rs. 29,121/- has already been deposited by the petitioner. But according to the petitioner, construction made by him was legal and as per building plans and it was not in contravention of law. He submitted that the said question is yet to be decided by a competent Court. 8. The question which arises for our consideration is whether the appeal filed by the petitioner before the District Court was incompetent? To recall, the learned District Judge was of the view that since there was no order of demolition, an appeal under Section 253 was not maintainable. 8. The question which arises for our consideration is whether the appeal filed by the petitioner before the District Court was incompetent? To recall, the learned District Judge was of the view that since there was no order of demolition, an appeal under Section 253 was not maintainable. Sub-section (1) of Section 253 reads as under : “253(1)Where the erection 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 246 or in contravention of any condition subject to which such sanction has been accorded or in contravention of the provisions of this Act or bye-laws made thereunder, 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 seven days from the date on which a copy of the order of demolition with a brief statement of the reasons therefor 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 notice served in such manner as the Commissioner may think fit, a reasonable opportunity of showing cause why such order should not be made : Provided further 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). (Emphasis supplied) 9. Perusal of the above provision makes it clear that its application is not limited to an action of demolition ordered by the Commissioner. A person can make grievance against any action taken by the Commissioner as the Commissioner may, under the said section, in addition to any other action that may be taken by him may also make an order that such erection or work be demolished. A person can make grievance against any action taken by the Commissioner as the Commissioner may, under the said section, in addition to any other action that may be taken by him may also make an order that such erection or work be demolished. Thus, in our considered opinion, the learned District Judge committed an error of law in holding that the appeal filed by appellant-petitioner was not maintainable. The grievance of the party may relate only to demolition, but even if the order is not of demolition and the Commissioner alleges that there was contravention of any provisions of the Act by such person and if any other action is taken, for example, payment of composite fee as has been done in the case on hand, it can be said to be an action covered by sub-section (1) of Section 253 of the Act and an aggrieved party may prefer an appeal under Section 253 of the Act. In our opinion, therefore, the appeal filed by the petitioner-appellant was competent as well as maintainable at law and it was required to be decided in accordance with law on its own merits. 10. For the foregoing reasons, the petition deserves to be allowed and is accordingly allowed. The order passed by District Judge in CMA No. 104-S/14 of 1998 (Annexure P-3) dated 16th February, 2000 is hereby set aside. The learned District Judge will entertain the appeal and decide the same on its own merits in accordance with law. 11. As the appeal was not decided on merits and we have reversed the said decision, now the District Judge will decide the same on its own merits. We may not be understood to have expressed any opinion one way or the other. The petition to the above extent is accepted. It is needless to say that the amount which has been deposited by the petitioner will be subject to final outcome of the appeal before the District Judge. CMP No. 491 of 2000 In view of the order passed in the main writ petition, this petition does not survive and the same stands disposed of. Petition dismissed. -