REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.  5948      OF 2008 (Arising out of SLP (C) No.4599 of 2007)

Municipal Corporation, Ludhiana … Appellant

Versus

Inderjit Singh & Anr. … Respondents

J U D G M E N T

S.B. Sinha, J.

1. Leave granted.

2. This  appeal  is  directed  against  a  judgment  and  order  dated

12.12.2006  passed  by  the  High  Court  of  Punjab  and  Haryana  at

Chandigarh  in  Civil  Writ  Petition  No.19605  of  2006  whereby  and

whereunder the writ petition filed by the appellant herein questioning the

validity  and/or  legality  of  an  order  dated  5.9.2006  passed  by  the

Additional  District  Judge and Fast  Track Court,  Ludhiana  allowing an

appeal preferred by the respondent herein; was dismissed.

3. The basic fact of the matter is not in dispute.   

One Hira  Devi  was the  owner of  a property bearing  No.B-XXI-

12652  situated  at  Link  Road  near  Pratap  Chowk,  Ludhiana.   First

Respondent is her grandson.  She constructed a marriage hall.  Inter alia,

on the premise that a part  of the said construction was unauthorized, a

notice dated 10.1.2001 was issued asking her to show cause as to why the

purported illegal construction of shed measuring 60’ x 40’ should not be

demolished.   She was asked to file  a reply to  the said  notice of  show

cause within three days.  Allegedly, Hira Devi refused to accept the said

notice.   Another  notice  was  issued  on  1.2.2001  which  was  also  not

served.  Appellant,  however,  contended  that  the  respondent  was  fully

aware  of  the  contents  thereof  as  an  application  for  compounding  that

portion of the construction which was within the compoundable limit was

filed.  On an oral request made by the first respondent, a compounding

fee of Rs.1,95,374/-  was fixed.   Allegedly, a memorandum was issued

asking him to pay the said amount but he failed and/or neglected to do so.

4. A suit was filed by the respondent No.1 for permanent injunction

restraining the appellant from demolishing the said property.  In the plaint

of the said suit, it was, inter alia, averred that there was no excess covered

area in terms of the sanctioned plan and if there be any, the plaintiff was

ready to pay the compounding fee.  The contention of the plaintiff in this

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behalf  was that  only an area of  14 sq.  ft.  was in excess  of the legally

sanctioned  plan.   The  Civil  Judge  (Senior  Division),  Ludhiana,  on  an

application  filed  by  the  first  respondent  passed  an  interim  order  on

26.3.2001, directing :

“This  court  doth orders and restrained you till 29.3.2001  from demolition  of  the  property  of the plaintiff as far as it is in consonance with the sanctioned construction do not demolish.”

5. It is now not in dispute that the original owner of the said property

Hira Devi died in the year 1999.

On or about 14.12.2001, a notice purported to be under Section 269

and 270 of the Punjab Civil Municipal Corporation Act was issued in the

name  of  the  first  respondent,  the  operative  portion  whereof  reads  as

under:

“I,  K.S.  Bhalla,  Assistant  Town  Planner, Municipal Corporation, Ludhiana who has been authorized  by  the  Commissioner,  Municipal Corporation  Ludhiana  vide  his  order 664/DRG/C  dated  2.1.2000  to  exercise  the powers under Section 269 and 270 of the Punjab Municipal Corporation Act, 1976, issue you this notice  under  Section  269,  270  of  the  Punjab Act,  1976  to  demolish  the  unauthorized construction within three days from the receipt of  this  notice.   If  you  failed  to  demolish  the unauthorized construction within the stipulated period,  then  the  Municipal  Corporation, Ludhiana  will  demolish  the  same  at  its  own

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level  and the expenses will  be recovered from you.”

The subject matter of the said notice was stated to be :

“Show Cause Notice under Section 269(1) and 270(i) of the Municipal Corporation Act, 1976.”

6. In the said notice, averments were made with regard to issuance of

the  earlier  notices  as  also  the  assessment  of  compounding  fee  on  a

purported oral request made by him.  On the premise that no cause was

shown, a demolition order was issued on 21.12.2001.

7. An appeal preferred against the said order dated 14.12.2001 in the

Court of District Judge, Ludhiana was allowed holding that although the

first two notices dated 10.01.2001 and 01.02.2001 had not been served

but  in  the  meanwhile  the  alleged  unauthorized  construction  was

demolished. It was directed:

“In  the  present  case,  the  appellant  had challenged  the  order  passed  by  Municipal Corporation to demolish the construction.  Ld. Addl.  District  Judge,  Ludhiana  was  seized  of the matter and passed an order dated 22.12.2001 restraining the respondent from demolishing the construction.  Even in spite of injunction order, the respondents  demolished the same.  Parties are therefore to be relegated to the position as if no demolition was done.  I, therefore, allow the present appeal with costs holding that the order

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of  respondents  threatening  to  demolish  the construction  is  illegal  and  void  and  same  is accordingly  set  aside  except  so  far  that  the construction  was  not  in  accordance  with  the sanctioned plan.  The respondents are directed to restore the construction at its own costs and expenses as it stood at the time when the order dated  22.12.2001  was  passed  by  Ld.  Addl. District  Judge,  Ludhiana  as  if  demolition  has not taken place.  The restoration work shall be done  by  the  respondents  within  three  months from  today,  needless  to  mention  that  the respondents  may  recover  the  costs  of construction from its employees responsible for the illegal demolition of construction.  Counsel fee is assessed as Rs.5000/-.  File be consigned to the record room.”

8. A writ petition filed by the appellant questioning the legality of the

said order dated 5.9.2006 has been dismissed by a Division Bench of the

High Court by reason of the impugned judgment.   

The High Court, in its judgment, inter alia, held :  

(i) That notices were issued against a dead person;  

(ii) The correct description of the property was not disclosed and it was

otherwise vague; and   

(iii) No  opportunity  of  hearing  having  been  given  to  the  first

respondent, the order of demolition was wholly illegal.  The High

Court, furthermore opined that the appellant and its officers acted

illegally  and  without  jurisdiction  in  demolishing  the  structures

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although a civil suit had been filed and an order of injunction had

been passed therein.   

9. Mr. Patwalia, learned counsel appearing on behalf of the appellant,

raised the following contentions in support of this appeal :

1. Notices were issued in the name of Hira Devi as it was not known

that she had expired.

2. The said notices were served on Hira Devi and/or respondent No.1

as copy thereof was pasted on the building in question.   

3. The order  of  demolition  dated 21.12.2001  having been appealed

against, the learned District Judge had no jurisdiction to entertain

the  appeal  as  merely a  notice  to  show cause  was  issued  by the

appellant in terms of the notice dated 14.12.2001.

4. Even  assuming  that  the  principles  of  natural  justice  had  been

violated, the District Judge and consequently the High Court could

not have exercised their jurisdiction without arriving at a finding

that by reason of such non-service of notice, the first  respondent

was prejudiced.

5. In any event, the Courts below should have determined the extent

of illegal construction.

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10. Mr. Moha Wasay Khan, learned counsel appearing on behalf of the

respondent, on the other hand, urged :

(1) Even the notice dated 14.12.2001 did not contain any description

of the property.

(2) The  constructions  were  raised  in  terms  of  a  sanctioned  plan  as

would appear from Annexure R-1 to the counter affidavit and only

an  area  of  14  sq.  ft.  was  the  subject  matter  of  unauthorized

construction  which  could  have  been  regularized  on  receipt  of  a

compounding fee.

11. Indisputably the appellant in terms of the provisions of the Punjab

Municipal  Corporation Act was statutorily entitled to grant of sanction

for construction of structures in terms of the bye laws framed by it.  It is

also  not  in  doubt  or  dispute  that  subject  to  statutory  interdict,  the

appellant-Corporation  had  the  jurisdiction  to  regulairse  unauthorized

structure on receipt of a compounding fee.  It is a matter of some concern

that according to the appellant a compounding fee of Rs.1,95,374/- was

determined only on the basis of a purported oral request made by the first

respondent,  which  prima  facie  cannot  be  accepted.   How  a  statutory

authority can pass a statutory order on an oral prayer made by an owner

of the property is beyond anybody’s comprehension.  On what basis the

compounding fee was determined is also not known.

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12. The power of demolition is conferred on the Corporation in terms

of Sections 269 of the Act, the relevant portions whereof read as under :

“269.  Order  of  demolition  and  storage  of buildings  and  works  in  certain  cases  and appeal.—(1) Where  the  erection  of  any building  or  execution  of  any  work  has  been commenced, or is being carried on or has been completed without  or contrary  to the sanction referred to in section 262 or in contravention of any condition  subject  to  which  such  sanction has been accorded or in contravention of any of the  provisions  of  this  act  or  bye  laws  made under,  the  commissioner  may ,  in  addition  to any other  action  that  may be taken under  this Act, make an order directing that such erection or  work  shall  be  demolished  by the  person at whose  instance the  erection or  work has  been commenced or is being carried on or has been completed  within  such  period  (not  being  less than three days from the date on which a copy of the order of demolition with a brief statement of the reasons therefor has been delivered to that person  as  may  be  specified  in  the  order  of demolition :  

Provided that no order of demolition shall be made unless the person  has been given by means of a notice served in such manner as the  Commissioner  may  think  fit,  a  reasonable opportunity of showing  cause why such order should not be made:   

(2) Any person aggrieved by an order of the Commissioner made under sub-section (1) may prefer an appeal against the order to the Court of  the  District  Judge  of  the  City  within  the period specified in the order for the demolition of the erection or work to which it relates.

(3) …

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(4) Save as provided in this section no court shall  entertain  any  suit,  application  or  other proceeding for injunction or other relief against the Commissioner  to  restrain  him from taking any action or making any order in pursuance of the provisions of this section.  

(5) Every  order  made  by  the  Court  of  the District  Judge  on  appeal  and  subject  only  to such order, the order of demolition made by the Commissioner shall be final and conclusive.”  

Section 270 of the Act authorizes the appellant to stop construction

work where the erection of any building has been commenced or is being

carried out (but not completed) without or contrary to the sanctioned plan.

13. A  finding  of  fact  has  been  arrived  at  that  the  notices  dated

10.01.2001 and 01.02.2001 were not served on the respondent.  The said

notices were also found to be absolutely vague.  They did not contain the

description of the property in question.  Indisputably, they were issued in

the  name of  a  dead  person.   It  is  of  some significance  to  notice  that

whereas  in  the  first  two  notices  objections  was  called  for  and/or

directions to stop construction was issued, by reason of the third notice, a

direction was issued upon the first respondent to demolish the structures.

No opportunity of hearing was granted.  No notice to show cause was

issued.  It is on that basis that a purported demolition order was passed

which, indisputably, has been carried out.

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14. It  is,  therefore,  not  correct  to  contend  that  the  notice  dated

14.12.2001  was  not  final  and  by  reason  thereof  merely  the  first

respondent was asked to file his show cause.  Where a noticee, fails to

carry out such direction, demolition can be carried out by the Corporation

at the cost of the owner.  In effect and substance, therefore, an order of

demolition  was  passed  in  terms  of  the  aforementioned  notice  dated

14.12.2001.  It was a final order.

15. An  appeal  thereagainst  was,  thus,  maintainable.   Appellant

furthermore  acted  arbitrarily  insofar  as  it  demolished  the  structures,

despite  pendency  of  the  suit.   We  would  assume  that  the  order  of

injunction  was  granted  for  a  limited  period,  but  it  is  expected  of  a

Statutory  Corporation  to  act  thereupon  upon  informing  the  court

thereabout.  Furthermore, the notice was vague.  It did not contain any

description  of  the  property.   How much  area  of  the  property  was  the

subject matter of unauthorized constructions had not been disclosed.  It is

not in dispute that a plan for construction of the building was sanctioned.

It was, therefore, obligatory on the part of the authorities of the appellant

to categorically state as to how much area, if any, was the subject matter

of unauthorized construction.

16. Strong  reliance  has  been  placed  by  Mr.  Patwalia  on  Aligarh

Muslim University & Ors. v.  Mansoor Ali Khan [(2000) 7 SCC 529] to

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contend  that  in  certain  situations  an  order  passed  in  violation/non-

compliance of the principles of natural justice need not be set aside by the

High Court in exercise of its power under Article 226 of the Constitution

of India.  We are, however, not concerned herein with such a situation.

Respondent  No.1  preferred  an  appeal  against  the  order  of  the

Commissioner directing demolition of the construction.  The Appellate

Court  was  entitled  to  consider  as  to  whether  the  mandatory  legal

provisions  had  been  complied  with  or  not.   The  proviso  appended  to

Section 269 of the Act in no uncertain terms provides for an opportunity

of hearing before an order of demolition is passed.  It  is imperative in

character but the said provision had not been complied with.  The action

on the part of the appellant, therefore, was highly arbitrary.  In  Aligarh

Muslim University (supra)  itself,  the Court  noticed  the decision of  the

Court in S.L. Kapoor v. Jagmohan & Ors. [(1980) 4 SCC 379] wherein it

was held that non-compliance of the principles of natural justice by itself

causes prejudice.  No doubt, the development of law in the field would

have also to be kept in mind.  The said decision, however, was rendered

in the facts of the said case as it was a case of overstay of leave by an

employee.   It  was  found  that  no  prejudice  had  been  caused  to  the

petitioner therein.   

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Mr. Patwalia places strong reliance upon paragraph 21 of the said

decision which reads as under :

“21. As  pointed  recently  in  M.C.  Mehta v. Union of India there can be certain situations in which  an  order  passed  in  violation  of  natural justice need not be set aside under Article 226 of the Constitution of India.  For example where no prejudice is caused to the person concerned, interference under Article 226 is not necessary. Similarly, if the quashing of the order which is in breach of natural justice is likely to result in revival of another order which is in itself illegal as in Gadde Venkateswara Rao v. Govt. of A.P. it  is  not  necessary  to  quash  the  order  merely because  of  violation  of  principles  of  natural justice.”

It is, therefore, not a case where one statutory order has been set

aside  by  a  higher  authority.   The  said  principle,  therefore,  had  no

application to the fact of the instant case.   

17. Had  a  proper  show  cause  notice  been  served  upon  the  first

respondent,  he  could  have  shown  that  the  alleged  violation  of  the

provisions of the Act is of negligible character which did not warrant an

order of demolition.  Respondent No.1’s contention that only an area of

14 sq. ft. was the subject matter of unauthorized construction should have

been  considered  by  the  appellant  and  an  appropriate  order  thereupon

should have been passed.  It was in a situation of this nature, the appellant

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was statutorily obligated to apply its  mind in regard to the  nature and

extent of unauthorized construction, if any.

18. We  would,  however,  proceed  on  the  basis  that  the  plan  was

sanctioned.   It  would,  therefore,  be proper  to  direct  that  the appellant

should  be  directed  to  restore  such  constructions  for  which  order  of

sanction had been obtained.   To the said extent  the impugned order is

modified.

19. For the reasons aforementioned, the appeal is dismissed subject to

the aforementioned modifications.  In the facts and circumstances of this

case, the appellant will  pay and bear the costs of the respondent No.1.

Counsel’s fee assessed at Rs.2,00,000/- (Rupees two lacs only.)

.……………………….J. [S.B. Sinha]

……………………..…J.     [Aftab Alam]

New Delhi; October 1, 2008

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