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2011 DIGILAW 537 (PNJ)

Kairon Singh v. State of Punjab

2011-02-10

MEHINDER SINGH SULLAR

body2011
JUDGMENT Mr. Mehinder Singh Sullar, J.: (Oral) - The crux of the facts, which require to be noticed, for the limited purpose of deciding the core controversy, involved in the instant writ petition, and emanating from the record, is that Bishan Singh, father of the petitioner, was the owner of the property in dispute, situated in Mohalla Shahsultan, Sultanpur Lodhi. He constructed seven shops on it, after obtaining the requisite sanction from the Committee, vide resolution bearing No.235 dated 7.11.1969 (Annexure P-1). During the period of his life time, Bishan Singh was stated to have executed a registered Will, dated 27.4.2001, in favour of his two sons namely; Kairon Singh (petitioner) and Bakhsish Singh in equal share, by means of which, he bequeathed all his moveable and immovable property, including the shops in dispute, in their favour. After his death on 22.5.2001, petitioner and his brother Bakhshish Singh, inherited the entire property of their father. Thus, they became the owner in possession of the entire property, including the seven shops in question. 2. The petitioner claimed that he applied and submitted the site plan (Annexure P-2), on 23.7.2007 for sanction/approval to the Executive Officer of Municipal Council, Sultanpur (respondent No.3), in view of the provisions of The Punjab Municipal Act, 1911 (hereinafter to be referred as ‘the Act’), for construction/re-construction of three shops over the land in dispute and deposited the necessary fees of Rs.8295/-, in this regard, vide receipt (Annexure P-3). The respondent No.3 did not sanction the plan in spite of repeated visits by the petitioner, to his office. 3. Levelling a variety of allegations and narrating the sequence of events, in all, according to the petitioner, that although he has already applied for obtaining the approval/sanction of site plan (Annexure P-2) deposited the requisite amount of Rs.8295/-, vide receipt (Annexure P-3) but the respondents did not grant him the sanction till today despite notice dated 14.9.2009 (Annexure P4). On the basis of aforesaid allegations, the petitioner filed the instant writ petition, in the nature of mandamus, directing respondents No.2 & 3 to sanction the site plan, submitted by the petitioner, in the manner indicated hereinabove. 4. The respondents contested the claim of the petitioner. On the basis of aforesaid allegations, the petitioner filed the instant writ petition, in the nature of mandamus, directing respondents No.2 & 3 to sanction the site plan, submitted by the petitioner, in the manner indicated hereinabove. 4. The respondents contested the claim of the petitioner. Respondent No.1 filed the reply, respondents No.2 & 3 have filed their joint written statement, while private respondents No.4 to 7, filed their separate joint written statements, inter alia, pleading certain preliminary objections of, maintainability of the writ petition, cause of action and locus standi of the petitioner. However, respondents No.2 & 3 have admitted that petitioner has applied to respondent No.2, for sanctioning of site plan on 26.7.2007, but it was claimed that since the title of the petitioner was disputed by respondents No.4 to 7, so, they were unable to sanction the site plan. 5. The private respondents No.4 to 7 pleaded that the property of the petitioner is separate and distinct property then that of their property. According to the private respondents that unless question of title is decided by the Civil Court, petitioner cannot claim the ownership and possession of the property in dispute. It will not be out of place to mention here, that the contesting respondents have stoutly denied all other allegations, contained in the writ petition and prayed for its dismissal. That is how I am seized of the matter. 6. After hearing the learned counsel for the parties, after going through the record and legal provisions, with their valuable help and considering the entire matter deeply, to my mind, the instant writ petition deserves to be partly accepted in this context. 7. As is evident from the record, that Bishan Singh, father of the petitioner, constructed the shops, over the land in question, after obtaining the sanction/approval of the Committee (Annexure P-1). The petitioner and his brother claimed that they became the owner in possession of the property in question, by way of registered Will. The petitioner has already applied and submitted site plan (Annexure P-2) for sanction and approval and deposited the requisite amount of Rs.8295/-, vide receipt (Annexure P-3). The respondents No.2 & 3 have slept over the matter and did not decide the matter till today, which necessitated the petitioner to issue notice dated 14.9.2009 (Annexure P-4), in this respect, but the position remained the same. 8. The respondents No.2 & 3 have slept over the matter and did not decide the matter till today, which necessitated the petitioner to issue notice dated 14.9.2009 (Annexure P-4), in this respect, but the position remained the same. 8. Ex facie, the argument of learned counsel for the respondents that writ petition is not maintainable as the petitioner has the alternative remedy under the Act, is not only devoid of merits but misplaced as well. As is clear, that since respondent No.3 did not pass any order on the application/site plan of the petitioner till today, so, question of availing any alternative remedy, did not arise at all, under the present set of circumstances. 9. Sequelly, the next measle argument of learned counsel for respondents No.2 & 3 that as private respondents No.4 to 7 disputed the ownership of the petitioner, therefore, they (respondents No.2 & 3) are unable to decide the matter, is again not tenable in this relevant connection. 10. As is clear that Section 193 of the Act deals with the sanction or refuse to approve the site plan for erection or re-erection of the buildings, which postulates that “the committee [or the Executive Officer, as the case may be], shall refuse to sanction the erection or re-erection of any building in contravention of any bye-law made under sub section (1) of section 190 or in contravention of any scheme sanctioned in sub-section (3) or sub section (4) of section 192, unless it be necessary to sanction the erection of a building in contravention of such a scheme owing to the committee’s inability to pay compensation as required by section 174 of the Act for the setting back of a building or when the erection or re-erection of a building is likely in the opinion of the Committee [or the Executive Officer, as the case may be], to interfere with the enforcement of a scheme proposed under section 192, the Committee may refuse its sanction and in such case shall communicate its refusal in writing together with the grounds therefor, to the applicant within sixty days of the receipt of his application, and the applicant may thereafter, by written notice require the committee to proceed with the preparation of the proposed scheme with all possible speed. The application shall be deemed to have been sanctioned if an order of refusal is not passed by the committee [or the Executive Officer, as the case may be] within the time specified above, or if the proposed scheme has not received the sanction of the [State] Government within twelve months of the date of delivery of the applicant’s written notice hereinbefore referred to.” 11. A conjoint reading of these provisions would reveal that the respondent Committee can only refuse the sanction, on the grounds indicated under Section 193 of the Act and not otherwise. The fact that the private respondents have disputed the ownership of the petitioner of the land in dispute, is not a valid ground for the Executive Officer of the Committee, not to pass an order of sanction or refusal on the request of the petitioner in this regard. Such question of title cannot possibly be decided by the Executive Officer, which are in the domain of the Civil Courts. He is only to decide such sanction/approval on the grounds mentioned in the Act and not otherwise. The question of title is to be decided by the civil Courts. 12. What is not disputed here is that petitioner has already applied for sanction of site plan on 26.7.2007, for permission/sanction of the site plan/map (Annexure P-2), for construction of the building alongwith the requisite documents and fees (Annexure P-3). Still the respondents are sleeping over the matter since then. Neither they have passed any speaking order, on the indicated application of the petitioner nor any cogent explanation, in this regard, is forthcoming on record, as to why they have slept over the matter for about three and a half years, without any rhyme and reason. The reason of dispute of ownership between the petitioner and private respondents pressed into service by the committee is foreign/alien and not a valid ground to withheld the sanction under the Act. They did not decide the matter of the petitioner for the reason best known to them. In this view of the matter, to me, they are liable to pay some costs, by way of compensation, to the petitioner in this direction. 13. In the light of aforesaid reasons, the instant writ petition is hereby partly accepted with costs of Rs.10,000/-. They did not decide the matter of the petitioner for the reason best known to them. In this view of the matter, to me, they are liable to pay some costs, by way of compensation, to the petitioner in this direction. 13. In the light of aforesaid reasons, the instant writ petition is hereby partly accepted with costs of Rs.10,000/-. The respondents No.2 & 3 are directed to decide the indicated matter/sanction of the petitioner, by passing a speaking and reasoned order, strictly, in accordance with the provisions of the Act and not otherwise and to convey the same, to him (petitioner) within a period of one month positively, from the date of receipt of certified copy of this order. ----------------------