Gaurav Ghai vs Surinder Singh Bhangu and Another

Ram Chand Gupta, J.

C.M. No. 11201-CII of 2011

Application is allowed subject to all just exceptions.

Civil Revision No. 2785 of 2011

The present revision petition has been filed under Article 227 of the Constitution of India for setting aside impugned order dated 17.3.2011, Annexure P11, passed by learned Civil Judge, Junior Division, Ludhiana, vide which on the application filed by Respondent No. 1, Local Commissioner has been appointed to inspect the property from inside and outside and to report about any illegal construction raised by the Petitioner in violation of the building plan sanctioned by the Municipal Corporation Ludhiana.

I have heard learned Counsel for the Petitioner and have gone through the whole record carefully including the impugned order passed by learned trial Court.

The only point argued by learned Counsel for the Petitioner is that Local Commissioner may visit the property in dispute and report about existing construction at the spot, however, the Court cannot delegate its power to Local Commissioner to ascertain as to whether the construction is in violation of the building plan sanctioned by Municipal Corporation, Ludhiana. It has been contended by learned Counsel for the Petitioner that Petitioner has raised construction strictly as per plan sanctioned by Municipal Corporation, Ludhiana, and there is no violation.

Learned trial Court while passing the impugned order has observed as under:

It is a settled principle of law that no person can raise any construction without approval or sanction from the Municipal Authorities of that area. This Court vide its order dated 24.12.2010 had restrained the Plaintiffs/Respondents from raising any construction in the suit property in violation of building plan sanctioned by the Municipal Corporation Ludhiana in their favour. The submission made by the counter claimant is that the Plaintiffs are raising construction in violation of the sanctioned plan despite a restraint order passed by this Court. The entire matter in dispute between the parties also pertains to illegality, if any, of construction being allegedly raised by Plaintiff in violation of the norms and bye-laws of the Municipal Corporation, Ludhiana. As such in order to elucidate this most pertinent fact in issue, this Court is of the opinion that it is very much necessary and expedient for proper adjudication of this case that a Local Commissioner should be appointed to visit the suit property and to inspect the property from inside and outside and to report to this Court about any illegal construction being raised therein by the Plaintiffs which is in violation of the building plan sanctioned by the Municipal Corporation, Ludhiana as has been placed on record by the Plaintiff. This Court is supported by judgment of Hon''ble Andhra Pradesh High Court in case Mukund Lal v. Sharada Bai and Ors. reported in 2006 (2) CCC 335 (AP) (supra) in this regard, which has been cited by the learned Counsel for the counter claimant. So far as the judgment relied upon by the learned Counsel for the Plaintiffs are concerned, the same are not applicable to the factual matrix involved in this case and are clearly distinguishable from the present case with regard to facts and circumstances as well as the stage of which application has been filed. Accordingly, Shri Harpreet Singh Advocate Chamber No. 654 is appointed as Local Commissioner with a direction to visit the suit property and to inspect the property from inside and outside and to report to this Court about any illegal construction being raised there by the Plaintiffs which is in violation of building plan sanctioned by the Municipal Corporation, Ludhiana, on or before 4.4.2011. It is made clear that the Local Commissioner can take assistance, if necessary, of a Civil Engineer and a Photographer for inspection and making a detailed report. However, before his visit, the Local Commissioner will give notice to both the parties in writing with regard to date of his visit and time. The cost/remuneration of Local Commissioner is assessed at Rs. 3000/- payable by the counter claimant/applicant. The cost remuneration payable to the Civil Engineer and photographer, if any, would also be borne by the applicant. The application in hand is accordingly disposed off.

Hence, a plain reading of aforementioned order passed by learned trial Court shows that Local Commissioner has been entrusted with the power to report about the fact as to whether construction raised by the Petitioner is illegal and in violation of building plan sanctioned by Municipal Corporation, Ludhiana.

There is force in the argument of learned Counsel for the Petitioner that the power of the Court cannot be delegated to Local Commissioner.

Hence, the present revision petition is accepted. Impugned order is modified to the extent that though Local Commissioner may visit the suit property and inspect the property from inside and outside and to report regarding existing construction, as per order of the Court, however, Local Commissioner is not to decide as to whether the construction is in violation of the building plan sanctioned as the said fact will be considered and decided by learned trial Court.

The present revision petition is disposed of accordingly.