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2006 DIGILAW 3156 (PNJ)

Chander Mohan v. Municipal Committee

2006-08-04

HEMANT GUPTA

body2006
Judgment Hemant Gupta, J. 1. The plaintiffs are in second appeal aggrieved against the judgment and decree passed by the Courts below whereby the suit for permanent injunction restraining the defendants from demolishing the super structure of the shopping complex was dismissed. 2. The appellants filed a suit for permanent injunction restraining the defendants from demolishing the structure of the shopping complex on the averments that on 8.5.1985 the plaintiffs have deposited the development charges to the tune of Rs. 1290/-. Despite passage of time the site plan was not sanctioned but the Municipality asked the plaintiffs to submit fresh site plan. Fresh site plans were submitted on 18.9.1987 by depositing Rs. 20/- but still the Municipal Council did not sanction the plans despite expiry of 60 days period from the date of receipt of the application. As per the plaintiffs the plan is deemed to have been sanctioned in terms of the provisions of the Punjab Municipal Act 1911 (for short the Act). The plaintiffs started raising construction according to such plans on 20.1.1988 which was completed by June 1990 but after more than six months of completion of construction the Municipal Committee issued a notice dated 29.2.1992 for demolition. 3. In the written statement it was the stand of the Municipal Council that the Civil Court does not have jurisdiction to entertain and try the suit. The area falls within the Town Planning Scheme No. 7 sanctioned by the State Government vide Notification dated 15.6.1967. Revised scheme was also published on 5.5.1976. Under the Town Planning Scheme the disputed site is a Municipal property i.e. a chowk as is clear from the site plan of the said scheme. The plaintiffs have encroached upon Municipal property and also Municipal drain which was in existence from the time immemorial. The site is open chowk. reserved for parking of the vehicles for the purposes of octroi. There is a water supply and sewerage line under the shops which the plaintiffs are said to have constructed recently under the garb of status quo order issued by the Court. Still further it is pointed out that earlier a notice was issued on 18.3.1995 for removing the barred wire fencing covering the disputed site. The notice was fixed at the gate of the plaintiffs as the plaintiffs refused to accept the same and subsequently barbed wire fencing was removed. Still further it is pointed out that earlier a notice was issued on 18.3.1995 for removing the barred wire fencing covering the disputed site. The notice was fixed at the gate of the plaintiffs as the plaintiffs refused to accept the same and subsequently barbed wire fencing was removed. It is further pointed out that the Mechanical Engineer and the Sectional Officer of the municipality inspected the civil work by digging foundation of 11 shops. On their report notice under Section 195 and 195-A of the Act was issued on the same date. The plaintiffs under the status quo order granted on 9.3.1996 raised illegal construction by encroaching upon the Municipal property. Even after the status quo order it was found by the Sectional Officer of the Municipal Committee that roof of 11 shops was being laid and the labourers were working to lay the roof of one more shop. The plaintiffs were yet to fix the shutters of 12 shops. The photographs were also taken. 4. The foremost argument raised by the learned Counsel for the appellant is that the dispute between the parties is regarding the demarcation of the property. The report of the Local Commissioner dated 31.3.2001 was set aside on the statement made by the counsel for the parties on 22.5.2001. Thereafter Shri Mohinder Singh Sadar Kanungo was appointed as Local Commissioner who has submitted his report Exhibit PW 5/C dated 14.7.2001. The said report has also been set aside by the learned first Appellate Court holding that notice to Municipal Council was not issued. It is argued that since the dispute is regarding demarcation of the property therefore the Local Commissioner be appointed and for that purpose the appellants moved an application for appointment of the Local Commissioner alongwith the memo of appeal. 5. The onus of proof that the property in dispute is not Municipal property as sought to be argued was on the plaintiff-appellants. The appellants have failed to discharge such onus in as much as there is nothing on record to return a finding that the plaintiffs has raised construction over their property or that the Municipal Chowk which the Municipality is claiming is not at the disputed place. It is the plaintiffs who have started construction and raised as many as 12 shops. What was the basis to start construction and raised as many as 12 shops has not been disclosed. It is the plaintiffs who have started construction and raised as many as 12 shops. What was the basis to start construction and raised as many as 12 shops has not been disclosed. How the appellants arrived at the site to raise construction was required to be explained by the appellants. Therefore it is too late for the appellants to seek appointment of the Local Commissioner in second appeal so as to initiate de-novo trial of the proceedings. Consequently I do not find any merit in the argument raised by the learned Counsel for the appellants in the application for appointment of the Local Commissioner. Hence the said application is hereby declined. 6. Learned Counsel for the appellants has also argued that the construction was raised in the year 1990 and not in the year 1996 as alleged by the Municipality. The first Appellate Court has found that the best evidence was the documents of purchase for material of constructions; date of application for obtaining water and electricity connections; and the bills of electricity. Since the best evidence has been withheld the oral evidence cannot be accepted. 7. I do not find that such line of reasoning given by the first Appellate Court is perverse which may give rise to any substantial question of law. Still further it is argued that the fee for sanction of the building plan was deposited in the year 1985 and amended building plans were filed in September 1987. The argument that the site plan shall be deemed to have been granted in terms of Section 193 of the Act after the expiry of 60 days has been repelled for the reason that the deemed sanction would remain in force for one year from the date of such sanction. It has been found that the construction was raised in the beginning of 1996 and on the basis of such deemed sanction the construction could not have been raised in the year 1996. As a matter of fact the appellants have raised construction over the land of the Municipality. By deemed sanction of the building plans the plaintiffs do not get any right to encroach upon the Municipal land. 8. In view of the above I do not find that the findings recorded by the Courts below suffer from any patent illegality or irregularity which may raise any substantial question of law in the present appeal. By deemed sanction of the building plans the plaintiffs do not get any right to encroach upon the Municipal land. 8. In view of the above I do not find that the findings recorded by the Courts below suffer from any patent illegality or irregularity which may raise any substantial question of law in the present appeal. 9. Hence the present appeal is dismissed.