Gian Chand Vs. Municipal Council and ors. - Court Judgment

SooperKanoon Citationsooperkanoon.com/635715
SubjectCivil
CourtPunjab and Haryana High Court
Decided OnNov-13-2009
Judge K. Kannan, J.
Reported in(2010)157PLR532
AppellantGian Chand
RespondentMunicipal Council and ors.
Excerpt:
- k. kannan, j.1. the order, which is challenged in revision is a direction for violation of the decree for injunction granted in favour of the decree holder and determining a compensation of rs. 27,702/- for illegal demolition of the boundary wall and allowing for attachment of the property for enforcement of the injunction decree by way of compensation to decree-holder for the amount as determined.2. the singular point for consideration is whether there had been a violation of the decree for injunction. the injunction was sought for in a civil suit no. 104 instituted on 16.02.1991 by the plaintiff in relation to a property, which he had purchased on 04.01.1991 stating that he had put up construction on the property subsequent to the purchase after securing a duly sanctioned plan from the municipality, but the municipality was preparing to demolish the construction. on a statement given by a chief functionary of the municipality that the municipal council would not take any action except in due course of law, the decree was passed, as mentioned above.3. the complaint of the decree-holder through the application filed before the executing court for disobedience of the decree of injunction was that in spite of the decree, the municipal council had caused a demolition of the construction on 06.08.1996 without following the due procedure. the whole focus was, therefore, on whether the municipal council had followed the procedure as prescribed under the relevant provisions of the punjab municipal act, 1911. section 172-a of the said act contemplates a procedure for punishment for encroachment upon land, premises or public place. the assumption is that if an encroachment is ascertained, a notice of prosecution will be issued and the executive officer shall have the power to remove encroachment and the expenses for such removal shall be paid by the person who has caused such encroachment. before the executing court, the municipal council sought to defend its action, as the burden was on the municipal council as a judgment debtor, to show that they had followed the procedure stipulated under the act viz., that the property was inspected, the demarcations properly made and that the encroachment was duly ascertained. the report of the assistant municipal engineer, junior engineer, draftsman, planning officer and other officials regarding demarcation was exhibited as r-3 and the site plan prepared was r-4. the executing court has also recorded the fact, with reference to plans filed before it, that from the point 't' 30 feet wide street was not available at the spot and the position of the street was established as per the scheme, if the point 'r' was joined with point 's' and point 'q' was joined with point 't' as shown in ex.r-4. in effect, this encroachment could have been noticed only if it was seen that the site plan and the demarcation had been compared with what was available in the plan published already under the town planning act. it was brought out in evidence that the action of the municipal council, which was purported to have been taken in terms of the town planning scheme had not carried out any comparison and the executing court found that the municipal council had not placed any record of either the order of an executive officer or any officer authorized by the committee to reach a conclusion that an encroachment had been made. the town planning scheme itself had. not been placed on record.4. while any detailed order relating to encroachment may not be necessary, there required to be a satisfaction by the executive officer on an objective consideration of all the relevant facts. an ascertainment of encroachment would not be possible by mere report of an engineer. an engineer can show encroachment and a draftsman can draw up a plan and show that it was an encroachment. but if they must stand judicial scrutiny, they shall be shown to have been drawn as per what was. found in the town planning scheme and if there existed a variance on site to how the town planning scheme had formulated the lay out of the streets and their alignments, the same should be brought out by the executive authority in his proceedings before he orders the removal of the alleged encroachment. in this case, while examining whether the municipal council had carried out the provisions of law before encroachment, it has to be seen in the context of how it proceeded from the time when they purported to carry out field inspection to the time when they carried out the demolition. ex.r-4, was produced by a witness as a site plan prepared according to the report of the assistant engineer. ex.r-3 was merely a part of the plan of the town planning scheme and does not appear to have been drawn by making any physical verification at the spot. if there existed one, at least i can state that it is not before the court. if a report of an encroachment had been made to the executive officer and if a notice of prosecution had been issued only under such a pretext, the executive officer must have done so, only after approving the report given by the field staff and his own satisfaction on objective consideration reflected in some proceedings, but there are no such records.5. the next question is to examine whether the owner complaining of illegal removal had any remedy before any other authority under the act. section 172-a(3) empowers an executive officer to seize or attach any property found in land which is found to be in encroachment. sub-clause (4) contemplates that if any property is seized and attached in terms of sub-section (3), he shall immediately report of such seizure or attachment. the power to seize or attach is not set out under the act as an act, which shall precede the removal of encroachment, for sub-clause (2) contemplates the power of the executive officer to remove such encroachment and the expenses of such removal to be recovered from the person, who had caused the said encroachment. the property, if it is seized and attached, the municipal committed may order confiscation of such property. this power, which is available under sub-section (7) could be assailed by a person, who is aggrieved against it by preferring an appeal to the district judge under sub-clause (10). the complaint of the decree holder was that demolition had been effected and in the following week on 14.08.1996, a confiscation was effected. i have already found that it is not at all times necessary that a confiscation order must precede the demolition. confiscation results after seizure and attachment under sub-section (7). if seizure and attachment had been effected even prior to the demolition, it would be in compliance with law, and that is what has also been done. while the owner of the property may have a remedy against seizure and attachment, there is no remedy for an owner under this provision of the act to obtain redress before the very same authority. the question still remains whether the ascertainment of the encroachment was carried out in accordance with the provisions. i find no help from the provisions of the act itself as to how the encroachment could be ascertained. i can only vouch for the correctness of the finding that the judgment debtor had not discharged the burden that the encroachment did exist by proof with reference to town planning scheme, the drawings on ground in comparison with the scheme drawings and the acceptance of the report by the executive officer, the findings of the executing court, determining the value of the demolished portion and causing attachment for the amount determined at rs. 27,702/- are affirmed. the amount has been determined by appropriate calculations by the executing court and the civil revision no. 1273 of 2000 filed by the decree holder is dismissed. the civil revision no. 2709 of 2000 filed by the judgment debtor is also dismissed. the municipal council shall, however, be at liberty to invoke the provisions of the punjab municipal act 1911 or any other law to measure the property to determine the correct boundaries and preserve the public character of the street alignment and remove encroachments that may occur in future, observing at all times rules of natural justice.
Judgment:

K. Kannan, J.

1. The order, which is challenged in revision is a direction for violation of the decree for injunction granted in favour of the decree holder and determining a compensation of Rs. 27,702/- for illegal demolition of the boundary wall and allowing for attachment of the property for enforcement of the injunction decree by way of compensation to decree-holder for the amount as determined.

2. The singular point for consideration is whether there had been a violation of the decree for injunction. The injunction was sought for in a Civil Suit No. 104 instituted on 16.02.1991 by the plaintiff in relation to a property, which he had purchased on 04.01.1991 stating that he had put up construction on the property subsequent to the purchase after securing a duly sanctioned plan from the Municipality, but the Municipality was preparing to demolish the construction. On a statement given by a chief functionary of the Municipality that the Municipal Council would not take any action except in due course of law, the decree was passed, as mentioned above.

3. The complaint of the decree-holder through the application filed before the Executing Court for disobedience of the decree of injunction was that in spite of the decree, the Municipal Council had caused a demolition of the construction on 06.08.1996 without following the due procedure. The whole focus was, therefore, on whether the Municipal Council had followed the procedure as prescribed under the relevant provisions of the Punjab Municipal Act, 1911. Section 172-A of the said Act contemplates a procedure for punishment for encroachment upon land, premises or public place. The assumption is that if an encroachment is ascertained, a notice of Prosecution will be issued and the Executive Officer shall have the power to remove encroachment and the expenses for such removal shall be paid by the person who has caused such encroachment. Before the Executing Court, the Municipal Council sought to defend its action, as the burden was on the Municipal Council as a judgment debtor, to show that they had followed the procedure stipulated under the Act viz., that the property was inspected, the demarcations properly made and that the encroachment was duly ascertained. The report of the Assistant Municipal Engineer, Junior Engineer, Draftsman, Planning Officer and other officials regarding demarcation was exhibited as R-3 and the site plan prepared was R-4. The Executing Court has also recorded the fact, with reference to plans filed before it, that from the point 'T' 30 feet wide street was not available at the spot and the position of the street was established as per the scheme, if the point 'R' was joined with point 'S' and point 'Q' was joined with point 'T' as shown in Ex.R-4. In effect, this encroachment could have been noticed only if it was seen that the site plan and the demarcation had been compared with what was available in the plan published already under the Town Planning Act. It was brought out in evidence that the action of the Municipal Council, which was purported to have been taken in terms of the Town Planning Scheme had not carried out any comparison and the Executing Court found that the Municipal Council had not placed any record of either the order of an Executive Officer or any officer authorized by the Committee to reach a conclusion that an encroachment had been made. The Town Planning Scheme itself had. not been placed on record.

4. While any detailed order relating to encroachment may not be necessary, there required to be a satisfaction by the Executive Officer on an objective consideration of all the relevant facts. An ascertainment of encroachment would not be possible by mere report of an engineer. An engineer can show encroachment and a draftsman can draw up a plan and show that it was an encroachment. But if they must stand judicial scrutiny, they shall be shown to have been drawn as per what was. found in the Town Planning Scheme and if there existed a variance on site to how the Town Planning Scheme had formulated the lay out of the streets and their alignments, the same should be brought out by the Executive Authority in his proceedings before he orders the removal of the alleged encroachment. In this case, while examining whether the Municipal Council had carried out the provisions of law before encroachment, it has to be seen in the context of how it proceeded from the time when they purported to carry out field inspection to the time when they carried out the demolition. Ex.R-4, was produced by a witness as a site plan prepared according to the report of the Assistant Engineer. Ex.R-3 was merely a part of the plan of the Town Planning Scheme and does not appear to have been drawn by making any physical verification at the spot. If there existed one, at least I can state that it is not before the Court. If a report of an encroachment had been made to the Executive Officer and if a notice of prosecution had been issued only under such a pretext, the Executive Officer must have done so, only after approving the report given by the field staff and his own satisfaction on objective consideration reflected in some proceedings, but there are no such records.

5. The next question is to examine whether the owner complaining of illegal removal had any remedy before any other authority under the Act. Section 172-A(3) empowers an Executive Officer to seize or attach any property found in land which is found to be in encroachment. Sub-clause (4) contemplates that if any property is seized and attached in terms of Sub-section (3), he shall immediately report of such seizure or attachment. The power to seize or attach is not set out under the Act as an act, which shall precede the removal of encroachment, for sub-clause (2) contemplates the power of the Executive Officer to remove such encroachment and the expenses of such removal to be recovered from the person, who had caused the said encroachment. The property, if it is seized and attached, the Municipal Committed may order confiscation of such property. This power, which is available under Sub-section (7) could be assailed by a person, who is aggrieved against it by preferring an appeal to the District Judge under sub-clause (10). The complaint of the decree holder was that demolition had been effected and in the following week on 14.08.1996, a confiscation was effected. I have already found that it is not at all times necessary that a confiscation order must precede the demolition. Confiscation results after seizure and attachment under Sub-Section (7). If seizure and attachment had been effected even prior to the demolition, it would be in compliance with law, and that is what has also been done. While the owner of the property may have a remedy against seizure and attachment, there is no remedy for an owner under this provision of the Act to obtain redress before the very same authority. The question still remains whether the ascertainment of the encroachment was carried out in accordance with the provisions. I find no help from the provisions of the Act itself as to how the encroachment could be ascertained. I can only vouch for the correctness of the finding that the judgment debtor had not discharged the burden that the encroachment did exist by proof with reference to Town Planning Scheme, the drawings on ground in comparison with the scheme drawings and the acceptance of the report by the Executive Officer, The findings of the Executing Court, determining the value of the demolished portion and causing attachment for the amount determined at Rs. 27,702/- are affirmed. The amount has been determined by appropriate calculations by the Executing Court and the Civil Revision No. 1273 of 2000 filed by the decree holder is dismissed. The Civil Revision No. 2709 of 2000 filed by the judgment debtor is also dismissed. The Municipal Council shall, however, be at liberty to invoke the provisions of the Punjab Municipal Act 1911 or any other law to measure the property to determine the correct boundaries and preserve the public character of the street alignment and remove encroachments that may occur in future, observing at all times rules of natural justice.