Gurnam Singh vs Municipal Committee

Passey, J.—This is a second appeal by Gurnam Singh whose suit, which was decreed by the trial court, has been dismissed by the learned District Judge, Patiala. The suit was against the Patiala Municipal Committee for a declaration that the site on which the disputed structures stood was his property and for an injunction restraining the Defendant from demolishing it pursuant to its notice u/s 172 of the Municipal Act. Gurnam Singh had through an unregistered document Ex. P.A. dated 3-5-1996 purchased a house in Patiala from Mst. Partapi. The boundaries and dimensions and other particulars of the house are given in the said deed of sale. The house had a vacant site lying in front of it and the proprietary title to that site was claimed by the Plaintiff to belong to him in his suit. On the site stood a latrine and a bath room which the Municipal Committee has required the Plaintiff to remove as they constitute unauthorised encroachment on a street.

Gurnam Singh had, vide application Ex. DW 3/E on 7-5-1997, applied to the Municipal Committee for permission to construct a Pucca front wall of his house and had also appended thereto a plan Ex. DW1/A showing the contemplated erection. In Ex. DW1/A the site in question was described as a blind alley (Kucha sarbasta). It would appear that some time after submitting his application dated 7-5-1097 the Plaintiff had built an improvised sort of a latrine on the disputed site. The Municipal Committee on 6-10-1997 discovered the encroachment and had it removed. The permission applied for, was however accorded.

Gurnam Singh applied to the Municipal Committee on 18-4-2004 (the application is marked as PW7/H) for permission to enclose the site, representing that he would only be reconstructing his bath room. The site was inspected by the Sanitary Inspector who detected the unauthorised encroachment. The Municipal Committee instead of granting permission as applied for, issued a notice Ex. PW8/A on 9-5-2005 to the Plaintiff demanding the removal of the encroachment within 30 days. The notice which did not expressly specify the relevant sections of the Municipal Act but purported to be one under Sections 189 and 172 was served upon the Plaintiff on 18-5-2005. Thereupon the Plaintiff brought the present suit on 27-5-2005 for the reliefs above stated. The suit was resisted by the Defendant by a categorical denial of the Plaintiff''s ownership of the site and. of his right to obtain an injunction order.

Two issues were framed, namely,

(1) whether the order of the Municipal Committee, Patiala requiring the Plaintiff to demolish the wall in dispute is ultra vires? (2) Whether the property in dispute belongs to the Plaintiff?

The onus of both the issues was placed upon the Plaintiff''. The trial Court decided the first issue in his favour and the 2nd issue against him and decreed his suit. On appeal by the Municipal Committee the learned District Judge has affirmed the finding on issue No. 2 but has decided issue No. 1 against the Plaintiff and dismissed the suit.

S. Amar Singh made a half-hearted attempt to show that the Plaintiff was the owner of the site but he could not get over the glaring evidence against him as provided by the sale deed dated 3-5-1996 itself, and the plan got prepared and submitted by the Plaintiff along with his application dated 7-5-1997. The house of the Plaintiff as it at present stands exclusive of the disputed site conforms with the boundaries and the dimensions and area as specified in the document of sale dated 3-5-1996. In the plan Ex. PW1/A referred to above the Plaintiff has himself shown the site to be a ''Kucha Sarbasta'' and not his own property. There is no evidence how he came into possession or acquired title regarding the site. Mst. Partapi, the predecessor in title of the Plaintiff with regard to the house sold to the Plaintiff on 3-5-1996 had herself applied to the Municipal. Committee for permission to make certain constructions and furnished a plan Ex. DW3/A. In that plan the site was shown as ''Kucha Sarkari Sarbasta''. That plan has been produced by the Municipal Committee and proved by the evidence of M. Devi Dayal draftsman. It is thus evident that Mst. Partapi and the Plaintiff had themselves, before 1997 never laid any ciaim to the ownership of the site. The Plaintiff" has hopelessly failed to show as to from; where and when he acquired the site. It may also be mentioned here that the Plaintiff being conscious of his aggrandisement, had once before on the Municipal Commissioner''s bidding-removed the encroachment on 6-9-1997. The concurrent finding of the courts below is based on a proper appraisal of the evidence and I have no hesitation in agreeing with them that the Plaintiff is not the owner of the site.

Next comes the other issue. It is contended that the Plaintiff had applied for permission to reconstruct his bath room on the disputed site on 18-4-2004 and the Municipal'' Committee did not inform him of their decision till 9-5-2005 when it sent its first notice S. Amar Singh stressing his argument referred. to Section 193 of the Municipal Act and urged that since the Municipal Committee had failed to convey sanction within sixty days of the application, the Plaintiff according to Sub-section 4 of Section 193 could carry out the proposed construction and in that case the Municipal Committee should be deemed to have accorded permission impliedly. The learned Counsel has also urged that, since the construction was made under implied consent of the Municipal Committee in the above mentioned circumstances, the Plaintiff cannot be said to have built or encroached without the consent of the defendant.

The site in question is a street as is apparent from the plans Ex. DW1/A and DW3/A. The houses of persons other than the Plaintiff are accessible by what the Plaintiff describes as a site but which in fact is a street as the word is defined in Section 3, Sub-clause (13) of the Municipal Act. The provision of Section 193 Sub-clause (4) under which the Plaintiff seeks shelter does not apply to lands which belong to or vest in the Committee. It has been held above that the Plaintiff is not the owner of the land and no encroachment can be made on streets, as u/s 172 of the Municipal Act the Municipal Committee has a statutory right to remove an encroachment erected without permission. The Plaintiff has not acquired any title by prescription even which could possibly be considered when ordering removal of the encroachment. The supposed and assumed permission as indicated by the failure of the Municipal Committee to convey sanction or refusal within sixty days does not extend to places which belong to or vest in the Municipal Committee. The Plaintiff cannot, therefore, by the failure of the Municipal Committee to pass an order within sixty days be deemed to have been permitted even impliedly to erect or re-erect the latrine or the bath room constituting the encroachment on the street. The Municipal Committee was thus within its legal right to issue the notice complained of. There is thus no substance in the appeal which is dismissed though without costs.