Naresh Kuma And Others vs Commissioner, Municipal Corporation And Others

Sandeep Sharma, J

Since the issue involved in all these petitions is same, they were heard together and are being disposed of vide this common order. However, for the sake of brevity, facts of CMPMO No. 410 of 2020 are being discussed herein.

Being aggrieved by judgment dated 6.10.2020 passed by learned District Judge, Shimla, exercising powers of Appellate authority under Himachal Pradesh Municipal Corporation Act, 1994 (hereinafter, ‘Act’) whereby an appeal filed against order dated 29.6.2020 passed by the Commissioner, Municipal Corporation in Case No. CF/566/AP/2020 titled Architect Planner v. Naresh Kumar, came to be dismissed, petitioner has approached this Court in the instant proceedings filed under Art. 226 of the Constitution of India, praying therein to set aside aforesaid judgment passed by learned District Judge and order dated 29.6.2020 passed by Commissioner, Municipal Corporation.

Precisely the facts of the case as emerge from the record are that after having received complaint with regard to construction of unauthorized Dhara near MC Quarters Kasumpti, respondent conducted spot inspection on 8.6.2020. Since no plausible came to be rendered on record by the petitioner herein, with regard to encroachment on MC land, respondent Corporation issued notice dated 8.6.2020 under Ss. 253, 240 and 246 of the Act, calling upon the petitioner to explain that why action be not initiated against him for having raised unauthorized construction without sanction of the Municipal Corporation, Shimla.

Pursuant to aforesaid notice, petitioner filed reply (except in CMPMO No. 242 of 2021), wherein petitioner claimed that the construction was raised way back in 1964 and thereafter he was also provided electricity and water connection as such construction cannot be termed to be unauthorized. However, petitioner was unable to produce documents, if any, suggestive of the fact that prior to raising construction, sanction, if any, was given by the Municipal Corporation, Shimla. After being fully satisfied that the petitioner has raised unauthorized construction, respondent vide order dated 29.6.2020, ordered eviction of the petitioner from the premises in question within a period of two weeks from the date of receipt of the notice. However fact remains that the petitioner filed appeal before learned District Judge, exercising power of appellate authority, who dismissed the appeal vide judgment dated 6.10.2020. In the aforesaid background, petitioner has approached this Court in the instant proceedings, praying therein for setting aside judgment dated 6.10.2020 and order dated 29.6.2020.

Having heard learned counsel for the parties and perused the record vis-à-vis findings recorded in the impugned judgment by learned District Judge as well as order passed by the respondent, this court finds that the petitioner raised unauthorized construction on Municipal Corporation land without there being any sanction, as such, no illegality can be said to have been committed by the said authority while ordering eviction of the petitioner from the land.

Learned counsel for the petitioner(s) vehemently argued that since the respondent had granted only four days’ time to the petitioner to file reply, principles of natural justice have not been complied with before passing impugned order. He states that as per provisions of the Act, reasonable time was required to be granted to the petitioner to explain his position. However, learned counsel for the petitioner was unable to dispute the fact that pursuant to notice issued by the respondent, petitioner had filed reply (except in case of Bholi Devi), wherein he had specifically disputed factum with regard to his having raised unauthorized construction on the land.

True it is that only four days’ time was granted by the respondent before initiating proceedings for eviction but since such notice was received by the petitioner and he duly replied to the same, it cannot be said that principles of natural justice were not adhered to, rather, judgment passed by appellate authority as well as order of eviction passed by the respondent, clearly reveal that the respondent afforded due opportunity of hearing to the petitioner before passing impugned order(s).

In the case at hand, at no point of time, document, if any, ever came to be led on record, suggestive of the fact that the petitioner was granted permission by the Municipal Corporation, Shimla to raise construction on the premises which belong to the respondent. Specific stand put up by the petitioner before appellate authority was that he had raised construction in 1964 and he was provided electricity and water connections but such plea, if any, is of no relevance since there is nothing on record that the piece of land, on which construction was raised by the petitioner, was allotted to him and he was granted permission, if any, by the authority concerned to raise construction. Since, it stand duly proved on record that the petitioner raised construction on the land of the respondent, without there being any permission, no illegality can be said to have been committed by authorities below, while passing impugned judgment and order.

Consequently, in view of above, present petitions are dismissed. Judgments passed by appellate authority below and the orders of eviction passed by the respondent, in all these cases are upheld.