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2014 DIGILAW 1117 (PNJ)

Jatinder Pal v. Appellate Authority, Ludhiana

2014-07-28

PARAMJEET SINGH

body2014
JUDGMENT Mr. Paramjeet Singh, J. (Oral) - The instant writ petition under Articles 226/227 of the Constitution of India has been filed for issuance of a writ of certiorari for quashing order dated 22.5.2012 (Annexure P-5),passed by the learned Additional District Judge, Gurgaon and order dated 15.2.2007 (Annexure P- 7) passed by the Commissioner, Municipal Corporation, Ludhiana, respondent No. 2. 2. Brief facts of the case are that the petitioner got sanctioned a building plan No. 587-D dated 15.12.2006 for raising construction on the site in question. Thereafter, the petitioner has constructed three floors i.e. first floor, second floor and terrace floor and some construction has also been carried out on the rear side of the plot, allegedly against the sanctioned building plan. After this came to the notice of respondent No. 2, a notice No. 1/ATP-D, dated 1.1.2008(Annexure P-2) under Section 269 (1) of the Punjab Municipal Corporation Act, 1976 (hereinafter referred to as the Act) directing the petitioner to demolish the excess construction was issued, to which the respondent filed reply. In notice it was also mentioned that the construction raised by the petitioner is in violation of the sanctioned building plan and said excess construction is not compoundable and direction was issued to demolish the unauthorized construction within three days. Thereafter, a final notice was issued on 15.02.2008(Annexure P-4) calling upon the petitioner to demolish the excess construction within three days failing which the Municipal Corporation would take action at its own level for demolishing the excess construction in question. Against the notice dated 01.01.2008, the petitioner preferred an appeal which has been dismissed by the learned Additional District Judge, Ludhiana (Appellate Authority) by order dated 22.5.2012 (Annexure P-5). Hence, this writ petition. 3. I have heard the learned counsel for the parties and perused the record. 4. Learned counsel for the petitioner vehemently contended that the notice does not mention the details of violation made by the petitioner at the spot and the same is vague. Petitioner has constructed the building according to the sanctioned plan. It is further contended by the learned counsel for the petitioner that the learned Additional District Judge/ Appellate Authority was required to only appreciate the legality and illegality of the notices for demolition and the Appellate Authority cannot pass an order to create a new case, which is not a part of the notice given to the petitioner. It is further contended by the learned counsel for the petitioner that the learned Additional District Judge/ Appellate Authority was required to only appreciate the legality and illegality of the notices for demolition and the Appellate Authority cannot pass an order to create a new case, which is not a part of the notice given to the petitioner. On the other hand, learned counsel for the respondent No.2 vehemently contended that the notice of motion was issued only for limited purpose that the impugned order (annexure P-4) has been passed by Assistant Town Planner whereas it could be passed only by the Commissioner under Section 269 of the Act, therefore, the other points cannot be raised by the petitioner. 5. I have considered the contentions raised by the learned counsel for the parties. 6. Perusal of the impugned order (Annexure P-5), the notice (Annexure P-2) and the demolition order (Annexure P-4) clearly indicates that no specific violation has been attributed to the petitioner. It has not been mentioned that how much area has been built contrary to the sanctioned building plan and which area is not compoundable. There is no specific allegation about the alleged deviation from the sanctioned plan nor it is indicated how the petitioner is required to rectify such deviation. Even in the notice, no details of or reference to the alleged inquiry conducted by the Municipal Authority regarding the violation has been mentioned nor any report of the officials of the Municipal Corporation has been annexed with the notice. In these circumstances, petitioner was not in a position to give a proper reply and rectify the alleged deviations. Since the notice is vague, this court is of the view that the impugned order Annexure P-5 passed in appeal by learned Appellate Authority/Additional District Judge as well as the notice Annexure P-2 and demolition order Annexure P-4 directing the demolition of the building are not sustainable in the eyes of law. Accordingly the same are set aside. However, liberty is granted to the Municipal Corporation to consider the matter afresh and if necessary issue fresh notices by mentioning the clear details of violations so that petitioner may come to know what violations he has to rectify and pass fresh order within two months from the date of receipt of certified copy of this order. Disposed of. ---------0.B.S.0------------ —————————