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2011 DIGILAW 684 (JK)

Bimla Sharma(Smt. ) v. Samba Municipal Committee

2011-12-07

Sanjay Gupta

body2011
1. Appellant has filed the present appeal against the Respondents for illegally demolishing the boundary wall of her house, situated at the house situated at H. No. 83, Ward No. 8, Samba without adopting due course of law as envisaged under Control of Building Operations Act, 1988. 2. In the memo of appeal, it has been stated that she is owner of land where she and her family reside. That she and her family are peacefully living in the said house and as per site plan, the 4 feet land out of said plot of 12 Marlas was left vacant on front side of the house. That she, in order to maintain the house, got a wall of 3-4 feet constructed to use as embankment for the purpose of putting up greenery. That appellant in order to save vicinity from pollution, disease, and infection in rainy season decided to put small boundary wall and plant trees thereon. 3. That on 12.8.2010, on the eve of the Rakhsha Bandan at about 6:15 pm, Respondent no. 2-6 along with Police personnel and labourers trespassed into the property of appellant and started demolishing the newly raised boundary wall. The appellant and family members gathered and raised objection. That respondents without any notice and without following norms laid under the Act completed the exercise. That no order of demolition was served to the appellant nor any Show Cause Notice was issued. That structure demolished by Respondent no. 2 and other with the help of Police was done without following settled principle of law. 4. After filing the appeal, record was called which reveals, that on 16.8.2010, the inhabitants of Ward No. 8 samba made a written complaint to Executive Officer, Municipal Committee Samba against Ravi Khajuria s/o Som Nath for illegal construction/encroachment of Public Street at Ward No. 8 Samba, thereby causing obstacle to public. This letter was forwarded to Khilafwarzi Officer, who also found that public lane about 3 ft x 14 ft has been encroached by Ravi Kumar. Despite directions, Ravi Kumar did not remove and respond. This encroachment has been made on recently pacca lane. 5. Record further reveals that Executive Officer, Municipal Committee Samba on 16.8.2010 issued a notice to Ravi Kumar s/o Som Nath regarding unauthorized encroachment of public lane/street. Accordingly, Ravi Kumar was asked to show cause within 7 days as to why unauthorized encroachment is not demolished. This encroachment has been made on recently pacca lane. 5. Record further reveals that Executive Officer, Municipal Committee Samba on 16.8.2010 issued a notice to Ravi Kumar s/o Som Nath regarding unauthorized encroachment of public lane/street. Accordingly, Ravi Kumar was asked to show cause within 7 days as to why unauthorized encroachment is not demolished. It appears that no reply was given by Ravi kumar. 6. On 24.8.2010, a final notice of demolition and removal of encroachment upon public lane was passed by Executive Officer, Municipal Committee, Samba. Police assistance was also sought by Executive Officer, Municipal Committee, Samba. Accordingly, the order was executed and encroachment was removed and illegal construction was demolished. It further appears, that after filling of appeal, on 5.9.2011, appellant herein and her son Ravi kumar again tried to re encroach this lane and inhabitants of locality again filled a written complaint to Deputy Commissioner samba, who directed E.O. Municipality for its immediate removal. This encroachment was again removed with help of police and during these process two iron grills was also seized. 7. From the bare perusal of record, it is evident that illegal construction and encroachment has been removed and thus order has been implemented. The argument of the Counsel for the appellant that Petitioner Bimla Sharma has not been given any show cause notice does not hold good, because Bimla Sharma and Ravi Kumar are mother and son and they are residing in same house. No reply was filed in response to show cause notice dated 16.8.2010 issued to Ravi Kumar by E.O municipal committee samba. So I am of view that, no principal of natural justice has been violated. Further demolition has been done on 24.8.2010, whereas appeal has been filled on 26.8.2010, so appeal at all is not maintainable as order of demolition has been implemented. 8. In view of what has been discussed above, this appeal is dismissed. Record is sent back along with this order. This file is consigned to record after compilation.