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2011 DIGILAW 2477 (HP)

Suman Sharma v. M. C. Shimla

2011-09-21

V.K.AHUJA

body2011
JUDGEMENT V.K. Ahuja, J. : The present petition under Article 227 of the Constitution of India has been filed by the petitioner for setting aside and quashing the judgment dated 4.5.2011 passed by the learned District Judge, Shimla in CMA No. 4-S/14 of 2010. By the impugned judgment, the learned District Judge has dismissed the appeal under Section 253 of H.P. Municipal Corporation Act, 1994, against the orders dated 5.8.2009/6.2.2010 passed by the Commissioner, Municipal Corporation, Shimla, directing the petitioner to remove the unauthorized construction made in the core area/green belt. 2.A notice of the petition was issued to the respondent. 3.I have heard the learned counsel for the parties and have gone through the record of the case. 4.The fact leading to the filing of the present petition are that the appellant was allegedly putting up in a portion of plot No. 8 HIG Housing Board Colony Jakhoo. A report was made to the respondent that unauthorized construction has been done in a portion of the plot. A notice under Section 253 of the H.P. Municipal Corporation Act was issued to S/Shri O.P. Prashar and Anup Sharma for 13.7.2005. Shri O.P. Prashar appeared before the Commissioner on 13.7.2005 and informed that his wife Dr. Usha Kiran Prashar had been allotted plot No. 8.The present petitioner was stated to be residing in a portion of plot No. 8. Thereafter, the Commissioner vide order dated 13.7.2005 issued a notice to the petitioner to show cause as to why unauthorized construction done by her be not removed. The petitioner did not appear before the Commissioner on 19.8.2006 and was proceed against ex parte. On the next date, that is, 4.10.2006, the petitioner appeared before the Commissioner and applied for setting aside of ex parte order, which was set aside. 5.It has been further stated by the learned District Judge in the order that the petitioner filed reply to the notice taking up the plea that the Corporation had no jurisdiction to proceed under the Act. A plea was also taken that plot No. 8 was allotted by the Housing Board and since notice was vague and indefinite since the dimensions of the unauthorized construction had not been indicated. Therefore, notice was not valid. It was also stated that Shri O.P. Prashar was related to the petitioner. The petitioner had stated that she had been paying municipal taxes regularly. Therefore, notice was not valid. It was also stated that Shri O.P. Prashar was related to the petitioner. The petitioner had stated that she had been paying municipal taxes regularly. The petitioner denied the unauthorized construction and also pleaded that she had constructed a garage/shed for her convenience. Vide impugned orders dated 5.8.2009 and 6.2.2010, unauthorized construction was directed to be uprooted as per the order passed by the Commissioner. The detailed reply filed by the petitioner is attached with the case file as Annexure P-4. 6.The petitioner preferred an appeal against the order passed by the Commissioner, Municipal Corporation, Shimla, and the learned District Judge, Shimla, vide his impugned judgment dismissed the appeal. The present petition has been filed challenging the said judgment passed by the learned District Judge in appeal. 7.The submissions made by the learned counsel for the petitioner were that the Commissioner had no jurisdiction since the jurisdiction was of the Housing Board authorities under the provisions of the H.P. Housing Board Act, 1972, which was repealed by a new Act H.P. Housing and Urban Development Authority Act, 2004. It was submitted that the Commissioner had no jurisdiction to pass the order and if there was any violation of bye-laws under the old Act, only the Housing Board could take action. 8.The learned counsel for the petitioner had relied upon the decision in K.M. Ibrahim Vs. K.P. Mohammed and another, (2010) 1 Supreme Court Cases 798, in which it was observed by their Lordships as under:- “13. As far as the non obstante clause included in Section 147 of the 1881 Act is concerned, the 1881 Act being a special statute, the provisions of Section 147 will have an overriding effect over the provisions of the Code relating to compounding of offences. The various decisions cited by Mr. Rohatgi on this issue do not add to the above position.” There is nothing as to how this decision is applicable to the present facts. 9.Reliance was also placed upon the decision in Surya Dev Rai Vs. Ram Chander Rai and others, (2003) 6 Supreme Court Cases 675, which refers to the exercise of jurisdiction by the High Court under Articles 226 and 227. 10. 9.Reliance was also placed upon the decision in Surya Dev Rai Vs. Ram Chander Rai and others, (2003) 6 Supreme Court Cases 675, which refers to the exercise of jurisdiction by the High Court under Articles 226 and 227. 10. On the other hand, learned counsel for the respondent had submitted that there is nothing on record to show that the provisions of the H.P. Municipal Corporation Act under which the notice was issued will not apply to the colonies developed by the Housing Board and the petitioner had been admittedly paying the municipal taxes and the Commissioner has the jurisdiction, which he exercised legally by giving an opportunity to the petitioner to file reply and be heard and the said order was affirmed by the learned District Judge on appeal. 11.In regard to the plea of jurisdiction, the following observations were made by the learned District Judge, which may be reproduced below:- “First of all the question of jurisdiction of the Commissioner under the Act is taken up for consideration. On the basis of record, the Commissioner had rightly proceeded to take action under Section 253 of the Act. The Housing Colony Jakhoo was within the limits of Municipal Corporation. Though the Colony had been developed by Housing Board yet the same stood transferred to Municipal Corporation long back. It was the very case of the appellant that she had been paying Municipal Taxes of her building to the Municipal Corporation.” 12. The learned counsel for the petitioner in regard to this plea had submitted that the Housing Colony at Jakhoo was handed over to the Municipal Corporation, Shimla, by the H.P. Housing Board and he has placed reliance upon a copy of notification Annexure P-7, which suggest that the Corporation had formally taken over the H.P. Housing Board Colony at Jakhoo for the purposes of maintenance and providing civil amenities only. The petitioner had not denied this fact that this land falls within the area of Municipal Corporation. She had also not denied that she has been paying the municipal taxes and there is nothing in the Housing Board Act of the year 1972 to show that the provisions of the H.P. Municipal Corporation Act, 1994, will not apply to the land developed by the H.P. Housing Board or plots allotted by it. She had also not denied that she has been paying the municipal taxes and there is nothing in the Housing Board Act of the year 1972 to show that the provisions of the H.P. Municipal Corporation Act, 1994, will not apply to the land developed by the H.P. Housing Board or plots allotted by it. The petitioner has not taken any plea that she is owner of the plot in question or was allottee and was, therefore, not liable to be issued the notice by the Municipal Corporation. She did not place any evidence on record to show that she was the allottee or in what capacity she was in possession of the plot and as is clear from the reply, she has constructed the garage/shed for her convenience. This clearly shows that the plea of construction of unauthorized construction has not been denied by the petitioner. She has no where taken any plea that she was owner or was entitled to raise the construction or that she has taken any permission from the Housing Board or Municipal Corporation. 13. Moreover, a perusal of H.P. Housing Board Act, 1972, shows that bye-laws were framed and under the bye-laws, the Housing Board could take action for such contraventions. However, the new Act of 2004 was passed and no such bye-laws have been framed under this Act providing of such eventuality when an unauthorized construction is made in the core area and they can take action to the exclusion of the Municipal Corporation, Shimla. It is true that new Act does protect the action for violation of the bye-laws under the previous Act, but there are no such bye-laws framed under which the H.P. Housing Board only can take action against such persons raising unauthorized construction. 14. In view of the above discussion, I accordingly hold that the plea taken in regard to the question that the Commissioner, Municipal Corporation, had no power, is not substantiated and the action had been taken after a notice under Section 253 of the H.P. Municipal Corporation Act, 1994, was issued and the reply was filed by the petitioner. The findings of the learned District Judge in this regard holding that the Commissioner had the powers, do not call for an interference by this Court. 15. The findings of the learned District Judge in this regard holding that the Commissioner had the powers, do not call for an interference by this Court. 15. Apart from the above, there is no provision in the H.P. Housing Board Act of 2002 or 2004 that the provisions of Section 253 of the H.P. Municipal Corporation Act, 1994, shall not apply to the plots allotted by the Housing Board and the petitioner has not claimed that she is an allotee of the plot allotted by the Housing Board also. The learned District Judge has also made a reference to the fact that HIMUDA had reported that no plot has been allotted to one Shri O.P. Prashar as plot No. 8, in Housing Colony Jakhoo or in favour of the petitioner. 16. There is provision for appeal under the H.P. Municipal Corporation Act and the appeal lies to the learned District Judge, which had exercised his jurisdiction vested in law in him. There is no provision for any second appeal in the Act and this Court while exercising its jurisdiction is not sitting as a Court of appeal, but has to consider if the order passed is illegal or is liable to be quashed for any such reason. There is nothing to hold that the said jurisdiction was illegally exercised by the Commissioner, Municipal Corporation or that the judgment passed by the learned District Judge on appeal suffers from any illegality. These provisions have been enacted to safeguard the interest of the society that no construction is raised in the core area without the permission of the Municipal Corporation and accordingly, the impugned orders do not suffer from any illegality to be interfered with. 17. In view of the above discussion, I accordingly hold that there is no merit in the petition filed by the petitioner, which is dismissed, so also the pending miscellaneous application(s), if any. Interim order stands vacated.