The Municipal Committee, Amritsar vs M/s. Kishan Chand Hari Ram

Surinder Singh, J.—Messrs Kishan Chand Hari Ram (hereinafter referred to as the Respondent) filed a suit against the Municipal Committee, Amritsar (Appellant) for the issue of a permanent i(sic) junction against the Appellant with the allegations which are these. After obtaining the sanction of the Appellant, the Respondent bad constructed a building on the site situated on Jail Road, Amritsar comprising Khasra No. 152. The plan for the construction was sanctioned on May 12, 1960, but within a few days thereafter, June 6 1960 to be precise, the Appellant issued two notices to the Respondent, one u/s 195 and the other u/s 195-A of the Punjab Municipal Act, 1911 (Punjab Act No 3 of 1911). These notices were produced in original before the trial Court and the same are available on the record as Exhibits D. 7 and D. 6 respectively As per said notices, the Respondent was called upon to demalish the building constructed by him for the reason that the same was not in accordance with the sanctioned plan. The notice u/s 19 5 further envisaged that in case the building was not voluntarily demolished or modified within 15 days of the receipt of the notice, neccessary action u/s 220 of the Act shall be taken by the Committee. It was further alleged that in order to avoid any dispute in this behalf, the Respondent submitted an application for the compounding of the alleged violation and in consequence of a settlement with the Committee, he paid Rs. 53/- as compensation fee with the result that the notices issued to him were deemed to have out lived their utility. To complete the sequence of narration in the plaint, it was also alleged that apart from the facts mentioned above some construction said to have been made in violation of the sanctioned plan, was demolished by the Committee on June 30, 19 2 and the threat for the demolition of the building now in existence was quits illegal and without justification. The Respondent, therefore, prayed for a permanent injunction against the Appellant-Committee restraining it from demolishing the building standing on Khasra No. 252(sic).

The suit was contested by the Appellant with various weapons in its artaoury(sic), which included objections in regard to the jurisdiction of the Civil Court to adjudicate in the matter, the locus standi of the Respondent to file the suit and the form in which the suit had been preferred In regard to the two notices under Sections 195 and 195-A it was maintained that these notices were quite legal and effective and that only the notice issued u/s 195-A had been compounded under orders of the Executive Officer and not the one u/s 195. The Appellant, therefore, justified their proposed action for demolition of the building in consequence of the notice issued u/s 195 of the Municipal Act.

The pleadings of the parties necessitated the framing of an array of issues to cover the various controversial points. However, for the purpose of present appeal it is needless to reproduce all these issues as the Learned Counsel for the parties have sought a verdict only in regard to a issue No. 4 pertaining to the legality of the notices in question As already observed, the dispute has now narrowed down to the field covered by the notice u/s 195, the other notice u/s 195-A having lost its sting on account of the composition of the alleged violation.

In order to appreciate the contentions raised and mooted in this Court it would be convenient and appropriate to reproduce for ready reference, the provisions of Sections 195 and 195-A of the Punjab Municipal Act, 1911 Punjab Act No. 3 of 1911) in extenson:

Should a building be begun, erected or re-erected-

(a) Without sanction as required by Section 189(1), or

(b) without notice as required by Section 189(2), or

(c) when sanction has been refused,

the committee may by notice delivered to the owner within six months from the completion of the building, require the building to be altered or demolished as it may deem necessary within the period specified in such notice, and should it be begun or erected-

(d) in contravention of the terms of any sanction granted, or

(e) when the sanction has lapsed, or

(f) in contravention of any bye-law made u/s 190, or; in the case of a building or which the erection has been deemed to be sanctioned u/s 193(4), if it contravenes any scheme sanctioned u/s 192 ;

the committee may by notice to be delivered to the owner within six months from the completion of the building, require the building to be altered in such manner as it may deem necessary, within the period specified in such notice ;

Provided that the committee may, instead of requiring the alteration or demolition of any such building, accept by way of compensation such sum as it may deem reasonable.

Provided also that the committee shall require a building to be demolished or altered so far as is accessary to avoid contravention of a building scheme drawn up u/s 192.

Provided further that if any notice is issued by the Executive Officer under this section on the ground that a building has been begun or has been crected in contravention of the terms of any sanction granted or in contravention of any bye-law made u/s 190 the person to whom the notice is issued may, within fifteen days from the date of service of such notice, appeal to the committee, and, subject to the provisions of Sections 225, 232 and 236, the decision of the committee-shall be final.

195-A(1) Where a building is begun as described in Section 195 but not completed, the committee may by notice, to be delivered to the owner within six months from the commencement of the building, or from the contravention of the terms of any sanction, or any bye law framed u/s 10, as the cases may be require the building operations to be discontinued from the dated of the service of such notice.

(2) Any person failing to comply with the terms of such notice shall be punishable with a fine which may extend to one thousand rupees and when the non-compliance is a continuing one, with a further fine which may extend to fifty rupees for every day after the first during which the non compliance continues

A bare perusal of the provisions contained in Section 195 ibid would indicate that the first half of the section is applicable to a building which has begun, erected or re-erected under three contingencies envisaged in Clauses (a), (b) and (c). In a case falling under any of these clauses, the owner of the building can be deemed called upon to alter or demolish-the building, as may be deemed necessary. However, the second half of Section 195 deals with the case of a building to which Clauses (d), (e) or (f) are applicable. There are no two opinions that the case in hand is covered by Clause (d), applicable to a building alleged to have been constructed in contravention of the terms of sanction granted for the purpose. A direction which could be issued in such a case is to require the building to be altered in the manner to be indicated. Emphasis may be reasonably laid at this stage to the fact that no direction for the demolition of a building covered by Clause (d) could be issued by means of a notice u/s 195. Let us now continue the statutory sequence by glancing through Section 195-A also. This provision is obviously meant to empower a committee to stop building operations in case of a building alleged to be raised in contravention of the terms of a sanction after these operations have began, but the building has not been completed. A reading of two sections, i.e., Section 195 and Section 195-A would thus show that these sections are co-related and to some extent the powers vested in the Committee under these provisions are overlapping, though the purpose for which these powers-are to be exercised under them is different. This brief resume of the two relevant statutory provisions is enough for the present and attention shall be focussed on the same a little later while appraising the arguments in respect of the legality of the notices

Ch. Roop Chand, Learned Counsel for the Appellant has referred to the verdict of the lower appellate Court as contained in its judgment dated December 4, 1963 and has submitted that the conclusion drawn by the Court, about the notices under Sections 195 and 195-A being too vague and in effective, is not warranted. The argument is, however, not tenable. The impugned notice u/s 195 (Exhibit D. 7) when scanned in original, indicates that the violation attributed to the Respondent is merely mentioned as the construction of a building against the sanctioned plan. No specific allegation whatsoever has been made about the alleged deviation from the sanctioned plan, nor is it indicated as to ho v. the owner of the building is required to rectify such a deviation. Even the direction issued is that within fifteen days of the receipt of the notice, the building should be demolished or modified. This is an absolutely vague direction which, as held by the lower appellate Court, could not be possibly complied with. The argument of the Learned Counsel for the Appellant that the owner should be presumed to possess knowledge about the contravention is quite fallacious. If such knowledge is to be presumed, there would be no necessity of issuing a notice in any case. I am also not impressed with the submission that merely because the Respondent applied for composition after the issue of the notices, his guilty attention could be taken for granted. In any case, it is the stand of the Appellant itself that composition was allowed in respect of the notice u/s 195-A. The evidence produced by the Appellant instead of being advantageous to it has gone against its case. The witnesses produced by the Appellant in proof of the alleged contravention and deviation from the sanctioned plan, obliged the Respondent rather than the Appellant. Asa Singh (D.W. 3) Town Plainning Assistant of the Municipal Committee merely made a reference to reports dated April 23, 1962 and April 26, 1962 in respect of the building, which are of no use as the impugned notices were issued much earlier, i.e., in the year 1960. In any case in his cross-examination, he frankly admitted that he could not state as to what deviation bad been made from the sanctioned plan. The other witness Sain Dass, Building Inspector (D. W. 4) proved the deviation report prepared in February 1962 which is also of no avail for the purpose of the impugned notices. In this background, the finding of the lower appellate Court that the impugned notices were vague and hence incapable of being complied with, is quite appropriate and there is no hesitation to maintain the same

Shri Bhagirath Dass Learned Counsel for the Respondent has stressed a vital point during the course of his address, which point penetrates to the root of the matter and demolishes the very structure upon which the argument on behalf of the Appellant is founded It is pointed out that the alleged contravention about which the two notices u/s 195 and 195-4, were issued, is the same in both the notices and once this contravention is compounded by the Municipal Committee after recovering suitable charges from the Respondent, in the proceedings commenced with the notice u/s 195-A, it tantamounts to the grant of permission to the owner to continue the construction of the building and no grouse in this respect can subsist thereafter in consequence of the notice u/s 195 which must be presumed to have automatically expired. The argument is indeed forceful and convincing, it is not shown that the contravention alleged in the notice u/s 195 was different from the one to which the notice u/s 195-A partains. There is no effective reply to this argument.

The result of the above discussion is that there is no merit in the appeal preferred by the Municipal Committee and the same is hereby dismissed but with no order as to costs.