Rikhi Ram vs State of Punjab

M.R. Sharma, J.—The petitioner is owner of two shops situate in Kila Chowk, Patiala. They bore distinct numbers, i.e. 2489/2 and 2490/2. At present they bear Property Tax No. B36/414.

It is alleged that the shop bearing No. 2489/2 was constructed more than 70/80 years ago and its structure continues to be the same till today. The Chhappar was also constructed long back and continues to be the same.

The shop bearing No. 2490/2 was constructed by the petitioner after getting its plan duly sanctioned by the Municipal Committee on April 4, 1961. The Chhapar on the first floor of this shop was constructed in the year 1962 after getting the plan sanctioned on April 3, 1962.

The Municipal Committee, Patiala, respondent No. 3, issued a notice dated January 2, 1975, under section 172 of the Punjab Municipal Act, 1911 (hereinafter called the Act), which was served upon the petitioner on the following day. The petitioner was called upon to remove Chhapars, Chabutras and showcase etc. alleged to have been constructed without the prior permission of the Municipal Committee under section 189(1) of the Act. The time allowed for removing these superstructures was 24 hours only. It was also stipulated that in case the petitioner did not comply with the notice, action under section 222 of the Act would be taken against him. In other words, the Municipal Committee would itself remove the encroachments and realise the costs from the petitioner. The notice dated January 2, 1975, Annexure P3, served upon the petitioner reads as under :

"From the report of R.I. dated 2.1.1975, it has been found that you without sanction under sections 172 and 189(1), (sic) Chhapars, Chabutars and showcases etc. Therefore you are informed through this notice that you should demolish or remove the abovementioned encroachments within 24 hours of the receipt of this notice dated 2.1.1975 and make a report of its compliance in the office, failing which after the lapse of the said period, no objection would be entertained and in case of noncompliance, proceedings under section 220 of the Punjab Municipal Act (No. 3 of 1911) would be taken."

Obviously, the above mentioned notice relates to both the shops which are covered by Property Tax. No. B36/414, and are situate in Kila chowk, Patiala. If th allegations made in the petition are correct, then the notice covers two distinct properties one which had been built without the prior permission of the Committee and the other one which had been built with the permission of the Municipal Committee. The relevant provisions of the statute may now be seen. Section 172 of the Act relates to encroachments or other overhanging structures over the street made without the sanction of the Municipal Committee. It reads as under :

"172. Punishment for immovable encroachment or overhanging structure over street. (1) Whoever without the written permission of the Committee makes any immoveable encroachment on or under any street, on, over or under any sewer, or watercourse, or erects or reerects any immovable overhanging structure projecting into a street at any point above the said ground level, shall be punishable with imprisonment of either description which may extend to one month and shall also be liable to fine which may extend to one thousand rupees.

(2) The committee may, by notice, require the owner or occupier of any building to remove or alter, within a specified time not exceeding six weeks, such immovable encroachment or overhanging structure as aforesaid, and no compensation shall be claimable in respect of such removal or alteration :

Provided that if a period of more than three years has elapsed from the completion of the encroachment or overhanging structure, no prosecution shall lie under subsection (1); nor shall such encroachment or overhanging structure be required to be removed or altered without payment of reasonable compensation."

Section 175 of the Act which relates to removal of any balcony, projection or structure etc. constructed with the sanction of the Municipal Committee reads as under :

"175. Removal or alteration of any balcony, projection or structure, etc., on payment of compensation. The Committee may, subject to the payment of reasonable compensation, by notice, require the owner or occupier of any building within a period of not less than six weeks, to be specified in such notice, to remove or alter any balcony, projection, structure or verandah, erected with the sanction of the committee, overhanging, projecting into or encroaching on any street or into or on any drain, sewer or aqueduct therein."

A plain reading of the two provisions shows that regarding unauthorised structures any notice of a period less than six weeks is enough and noncompliance with the notice renders the person concerned liable to be prosecuted and imprisoned upto one month and a fine to the extent of Rs. 1000/ may also be imposed upon him. Under the latter provision, a notice of not less than six weeks is to be served upon the person concerned and he is also entitled to receive compensation for removing the alleged encroachments.

The provision for substantially different procedures for removing the two types of encroachments has reasonable basis for classification. So far as the trespassers are concerned, the law is more stringent, and for those who build upon municipal land with the permission of the Committee the law is much more lenient. In the face of these circumstances, it is reasonable to assume that the Legislature intended that the notice even if composite, should deal separately with items of property covered by the two provisions quoted above. The impugned notice is liable to be set aside on this ground alone. Even otherwise, the impugned provisions have penal consequences and they have to be interpreted in favour of the citizen as far as it is possible.

There is an additional factor which persuades me to declare the impugned action of the Municipal Committee as illegal. The Municipal Committee while sitting in its own office cannot form an opinion whether somebody has in fact made any illegal encroachment on land belonging to it or not. For taking action under section 172 of the Act, the person proceeded against has to be served with a notice to show cause why it should not be assumed that he had made encroachments upon municipal land and that such encroachments if not removed within a particular period shall be removed by the Committee at the cost and expense of the person concerned. If this interpretation is not placed on section 172, then it would be open to the Municipal Committee to assume that citizens had made encroachments and they were liable to be prosecuted for not removing them on notices being issued to them in that behalf.

Mr. Sibal, the learned counsel for the respondentCommittee has drawn my attention to an agreement which is stated to have been entered into between the petitioner and the Municipal Committee. Under this agreement, he was allowed permission to raise a construction on shop bearing old No. 2490/2 subject to the condition that in case he was ordered to remove the encroachment he will not claim any compensation. If and when a proper notice for removal of encroachment in respect of this shop is served upon the petitioner and the petitioner raises an objection that he should be paid compensation, it would be open to the Committee to rely upon the terms of the agreement for denying him the same. Notice regarding the removal of this encroachment be held illegal on the short ground that section 175 of the Act provides for a six weeks notice and the petitioner has been ordered to remove the encroachments within 24 hours only.

For the reasons mentioned above, I am of the view that the notice dated January 2, 1975, Annexure P.2, served by the Municipal Committee, Patiala, upon the petitioner is not legal. The same is hereby quashed.

The petitioner is also entitled to costs which are assessed at Rs. 200/.