Improvement Trust and Another vs Rajinder Singh and Another

Swatanter Kumar, J.—Rajinder Singh had filed a suit for perpetual injunction restraining the present appellants from demolishing his property consisting of 6 rooms, kitchen, bath room, stair case etc., at Plot No. 67, 38E, Bhai Randhir Singh Nagar, Ludhiana. The plaintiff had applied for sanction of his plan on 9.1.1987 and it was so granted on 20.1.1987. Thereafter he had raised construction and the notice for demolition issued by the defendants was violative of the statutory provisions and was an abuse of authority.

The suit was contested by the defendants. After permitting the parties to lead evidence, the learned Trial Court answered the issues framed in favour of the plaintiff and decreed the suit of the plaintiff vide its judgment and decree dated 27.1.1993. This judgment and decree was assailed in appeal before the learned 1st Appellate Court, of course, unsuccessfully. Vide its judgment and decree dated 20.1.1998, the appeal of the defendants was dismissed with costs, giving rise to this regular second appeal.

The only contention raised on behalf of the appellants is that the learned Courts below have misconstrued the statement and cross examination of DW1 and therefore, have fallen in grave error of incorrectly appreciating the evidence.

I am unable to see any merit in this contention raised on behalf of the appellants. It is not disputed before me that the notices as required u/s 81, 195 and 195A must proceed in accordance with the process of demolition. These notices ought to be served in accordance with law and the adversely effected party must have reasonable opportunity to reply to these notices and put forward its case before the authority concerned. The learned Courts below have come to a concurrent finding of fact that neither the notices were issued in accordance with law nor the proper orders were passed. At this stage, it may be relevant to refer to the cross examination of DW1, the copy of which has been produced by the learned Counsel for appellants in Court. The relevant portion thereof runs as under:

"It is correct that trust has passed resolution for issuing notices before demolition and these notices have been termed as notice No. 1, 2, 3. First notice is issued u/s 195-A of the Punjab Municipal Act and second notice is issued u/s 195 and third notice u/s 81 of the Punjab Town Improvement Act. There is time limit prescribed between notices Nos. 1, 2 and 3 but I do not know what is the exact time limit provided. It is correct that before issuing any notice u/s 195-A, 195 ibid the concerned official of the Trust makes reports about the existing condition and alleged variations in the construction raised by the parties. It is further correct that on the basis of such report notices u/s 195-a and 195 are issued by the trust. I have not brought any record in this regard whereby a report has been made by Trust Official and on the basis of said report Ex.P.9 was issued. A resolution has been passed by o/o Improvement Trust, Ludhiana by delegating the powers for signing notices in question. I have not brought the said resolution whereby S.D.P. concerned was delegated powers to issue notices. The resolution was passed on 8.4.1981 and is bearing Nos.5. Powers have been delegated by designations. There is no mention of any such resolution or delegations of powers in Ex.P.9.1 have not produced any notice in this case. In this case notice u/s 195-a was issued which is dated 13.3.1987. From the record brought by me today, it is not clear when the service of this notice was effected and upon whom. In this notice no alleged deviations from the sanction plan or any dimension of any illegal construction raised have been mentioned in this notice nor the same has been mentioned in Ex.P.9. No third notice was issued in this case. It is correct that in second and third notice a reference is made in the subsequent notice with regard to the earlier notice issued.

From the above statement of this witness of the appellants it is clear that there is not only violation of principles of natural justice but the spirit of the statutory provisions has also been infringed. The appellants have not acted in accordance with the provisions of law.

Demolition is a matter of serious consequences and the action of the concerned authorities in this regard must be in consonance with the settled principles of statutory provisions of the relevant Act. It has even been stated by the DW1 in his cross examination that even the report of so called unauthorised construction was not submitted by the Engineers to the authority concerned. This shows the extent of irresponsibility with which the rights provided to the individuals are being dealt with by the authorities.

For the reasons aforestated, I find no merit in this regular second appeal. The same is dismissed in limine. However, the appellants would be at liberty to act afresh in accordance with law.

Appeal dismissed.