Raj Masih vs Municipal Corporation and Another

Gokal Chand Mital, J.—Raj Masih was tenant of Gurdial Kaur in respect of the shop in dispute. When Municipal Corporation, Amritsar, wanted to demolish the shop, he filed civil suit for permanent injunction and applied for temporary injunction. The trial Court and the lower appellate Court refused to grant interim injunction to him. This is revision by him.

The interim injunction has been declined mainly on the two grounds (1) that the Plaintiff did not give notice u/s 396 of the Punjab Municipal Corporation Act, 1976 (for short ''the Act'') before filing the suit and (2) that appeal against the order of demolition passed by the Municipal Corporation was comment u/s 269 of the Act and the suit was barred.

After considering the matter, I am of the view that the Courts below failed to exercise their jurisdiction and acted illegally and with material irregularity in not granting interim relief to the Petitioner to which he was entitled on the facts of the case. Gurdial Kaur had leased out the shop to the Petitioner as a tenant and when notice u/s 269 of the Act was issued it was issued to Smt. Gurdial Kaur and after hearing her objections, order for demolition was passed. No notice was given to the tenant nor he was afforded an opportunity to place his view point for consideration by the concerned authority. Section 269 specifically provides for the issue of a notice to the aggrieved person. In this case there would be two aggrieved persons who have interest in the property namely, Smt. Gurdial Kaur, the owner and landlady and Raj Masih as a tenant. Hence, under the aforesaid section the tenant was also entitled to a notice and an opportunity to defend his possession. He was denied this. Since he was not a party to the proceedings he was not obliged to file an appeal although he may have the remedy of appeal as well. Once the proceedings are conducted without opportunity and hearing, not only in violation of the principles of natural justice but also in violation of the provisions of Section 269(1) of the Act, inspite of the bar of jurisdiction of the Civil Court, he would be entitled to file a suit in view of Full Bench decision of this Court in case State of Haryana and Ors. v. Vinod Kumar and Ors. 1986 (1) P.L.R. 222, Therefore, on these peculiar facts, he has two remedies, one to file the suit and the other to file an appeal and it would be for him to elect and choose the remedy. In this case he has chosen the remedy of a civil suit. The decision to the contrary recorded by the courts below is hereby up-set.

Adverting to the notice u/s 369 of the Act, since proceedings were not taken after notice to him and there is no order against him, it was not incumbent upon him to issue notice u/s 396 of the Act. Moreover, the shop would have been demolished during the notice period, rendering his suit infructuous and that is why in a suit for injunction Sub-section (3) provides for non-issue of notice.

It is not a simple case where Municipal Corporation is wanting to protect public property vested in it. Here admittedly, Gurdial Kaur is owner of the site and the construction. According to the notice, she had deviated from the sanctioned plan while raising construction. It is not disputed that the construction was made long time back and all through the tenant was in possession of the same. The notice u/s 269 is vague and the defects in the construction or deviation from the sanctioned plan have not been pointed out in the notice issued to Gurdial Kaur nor are mentioned in the final order of demolition. For slight deviation which do not seriously infringe the provisions of the Act, Rules or By-laws, normally the matter is compounded. Why the compounding could not be done is apparent in this case as would be seen.

The counsel for the Municipal Corporation was not that seriously opposing the revision as much the counsel for Smt. Gurdial Kaur opposed. In fact the action of demolition would affect the rights of Gurdial Kaur also but she is wanting the demolition of the shop with an ulterior motive so that the tenant is evicted or dispossessed in this guise. Therefore, keeping in view all the facts and circumstances of the case, I am of the firm view that it was a fit case in which the interim injunction should have been granted staying demolition of the shop till the final disposal of the suit.

For the reasons recorded above, this revision is allowed, the orders of the two Courts below are set aside and temporary injunction is issued against the Municipal Corporation, Amritsar not to demolish the shop during the pendency of the suit. The Petitioner shall have his costs from the Municipal Corporation, Amritsar and Gurdial Kaur of all the three courts and the two Respondents shall share them equally.