Supreme Court of India
MUNICIPAL CORPORATION, LUDHIANAversusINDERJIT SINGH & ANR.
- Citation
- 2008 INSC 1119
- Decided
- 1 October 2008
- Disposal
- Dismissed
- Bench
- S B SINHA
Holding
The demolition order was illegal because the statutory notice and hearing requirements under Section 269 were not complied with, rendering the order void and obligating the corporation to restore the sanctioned portions of the construction.
Summary
The Municipal Corporation of Ludhiana issued a series of notices, including a demolition notice under Sections 269 and 270 of the Punjab Municipal Corporation Act, 1976, against a marriage hall constructed by the late Hira Devi. The notices were served in the name of the deceased, were vague, and failed to describe the property or provide an opportunity of hearing, and a compounding fee was fixed on an alleged oral request. The respondents obtained an interim injunction restraining demolition, but the corporation proceeded to demolish the structure and later sought to enforce the demolition order. The Supreme Court held that the demolition order was illegal as the statutory requirements of notice and hearing under the proviso to Section 269 were not complied with, and the corporation acted arbitrarily. Consequently, the Court set aside the demolition order, modified it to direct restoration of the portions sanctioned by the plan, and dismissed the appeal with costs.
Issues considered
- Whether the demolition order under Sections 269/270 of the Punjab Municipal Corporation Act, 1976 is valid when notice is not properly served and is vague.
- Whether the corporation complied with the proviso to Section 269 requiring a reasonable opportunity of hearing before demolition.
- Whether a compounding fee can be fixed on the basis of an oral request without proper procedural safeguards.
- Whether the corporation must specifically state the extent of unauthorized construction before ordering demolition.
- Whether the appeal against the demolition order is maintainable under the Act.
Legislation cited
- Punjab Municipal Corporation Act, 1976s. 269, s. 270
Subjects
demolition ordermunicipal corporationPunjab Municipal Corporation Actnatural justicenotice requirementcompounding feeunauthorized constructioninjunctionstatutory authoritydue process
Judgment
[2008] 14 S.C.R. 95
MUNICIPAL CORPORATION, LUDHIANA A
II.
INDERJIT SINGH & ANR.
OCTOBER 1, 2008
[S.8. SINHA AND AFTAB ALAM, JJ] B
Punjab Civil Municipal Corporation Act, 1976 - ss. 269
and 270 - Notice under, for demolition of unauthorized con-
struction measuring 14 sq. ft. - Reference made to earlier
notices issued as also assessment of compounding fee on c
oral request by owner's grandson - Order of demolition though
injunction order passed restraining Authority from demolish-
ing construction - Challenge to - Held: Demolition order was
illegal - Notices issued were vague - It did not contain the
description of the property - Opportunity of hearing was not
D
.. given -Authority acted arbitrarily- Injunction order was granted
though for a limited period, but a Statutory Corporation was
expected to act thereupon upon informing the court thereabout
- Since plan for construction of building was sanctioned, Au-
thorities were under obligation to state the extent of unautho-
rized construction and apply its mind thereto - Thus, Author- E
ity directed to restore constructions for which sanction order
had been obtained.
HD-original owner of the property constructed a mar-
\\
riage hall. It is alleged that part of the construction was F
unauthorized. HD was issued notice dated 10.1.2001 and
1.2.2001 to show cause as to why the illegal construction
should not be demolisned, though she died in 1999. It is
alleged that HD refused to accept the first notice and the
other notice was also not served. It is the appellant's case
G
-{
that the respondent-grandson of HD was aware of the
same and on his oral request a compounding fee of
Rs.1,95,374/- was fixed. Thereafter, respondent was is-
sued memorandum to pay the amount but he failed to do
95 H
96 SUPREME COURT REPORTS [2008] 14 S.C.R.
~·
A so. Respondent No.1 filed suit for permanent injunction
restraining the appellant from demolishing the said prop-
erty. It was contended that only 14 sq. ft. area was in ex-
cess of the legally sanctioned plan and he was ready to
pay the compounding fee. Trial court restrained the ap-
B pellant from demolition of the property in consonance with
the sanctioned construction till 29.3.2001. On 14.12.2001,
the Commissioner, issued notice u/ss. 269 and 270 of the
Punjab Civil Municipal Corporation Act, 1976 to the first
respondent to demolish the unauthorized construction.
c Reference was made to issuance of the earlier notices as
also the assessment of compounding fee. However, .no
cause was shown and on 21.12.2001 demolition order was.
issued. Respondent filed appeal which was allowed hold- J
ing that although the first two notices had not been served ~
but in the. meanwhile the alleged unauthorized construe- ' )
D
tion was demolished. Appellant filed writ petition which
was dismissed. Hence the present appe~I.
Dismissing the appeal, the Court
· HELD: 1.1 The appellant in terms of the provisions
E of the Punjab Municipal Corporation Act, 1~76 was statu-
torily entitled to grant of sanction for construction of struc-
tures in terms of the bye laws framed by it. Subject to
statutory interdict, the appellant-Corporation had the ju-
risdiction to regulafrse unauthorized structure on receipt j
F 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 pur-
ported oral request made· by the 'first respondent, which
prima facie cannot be accepted. How a statutory author-
G ity can pass a statutory order on an oral prayer made by
-an owner of the property is bey.ond anybody's compre- \.-
hensiQn·.
- .
On what. basis the compounding. fee was deter-
~ .
.
miliedis also not known. [Para 11] [103-C-E]
1.2 A finding of fact has been arrived at that the no-
H
MUNICIPAL CORPORATION, LUDHIANA v. 97
INDERJIT SINGH & ANR.
~1
tices dated 10.01.2001 and 01.02.2001 were not served on A
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 B
called for and/or directions to stop construction was is-
sued, 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 c
demolition order was passed which, indisputably, has
been carried out. Therefore, it is not correct to contend
that the notice dated 14.12.2001 was not final and by rea-
son 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 Corpora-
D
-)
tion at the cost of the owner. In effect and substance, there-
fore, an order of demolition was passed in terms of the
notice dated 14.12.2001. It was a final order. Thus, an ap-
peal thereagainst was maintainable. Appellant further-
more acted arbitrarily insofar as it demolished the struc- E
tures, despite pendency of the suit. It is assumed 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. It is not in dispute
\
that a plan for construction of the building was sanctioned. F
Therefore, it was 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 construe-
tion. [Paras 13, 14 and 15] [105-A.,G]
G
1.3 Respondent No.1 preferred an appeal against the
---./ order of the Commissioner directing demolition of the con-
struction. 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
H
98 SUPREME COURT REPORTS [2008] 14 S.C.R.
A 269 of the Act in no uncertain terms provides for an op-
portunity of hearing before an order of demolition is
passed. It is imperative in character but the said provi-
sion had not been complied with. The action on the part
of the appellant, therefore, was highly arbitrary. [Para 16]
B [106-8-C]
Aligarh Muslim Unfversity & Ors. v. Mansoor Ali Khan
(2000) 7 SCC 529; S. L. Kapoor v. Jagmohan & Ors. (1980) 4
SCC 379 - Held inapplicable
1.4 Had a proper show cause notice been served
C upon the first respondent, he could have shown that the
alleged violation of the provisions of the Act is of negli-
gible character which did not warrant an order of demoli-
tion. Respondent No.1's contention that only an area of
14 sq. ft. was the subject matter of unauthorized construc-
0 tion 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
was statutorily obligated to apply its mind in regard to the
nature and extent of unauthorized construction, if any.
E Therefore, it would be proper to direct the appellant to
restore such constructions for which order of sanction
had been obtained. To the said extent the impugned or-
der is modified. [Paras 17 and 18] [107-8-D]
CASE LAW REFERENCE
)
F (2000) 7 SCC 529 Held inapplicable Para 16
(1980) 4 SCC 379 Held inapplicable Para 16
CIVILAPPELLATE JURISDICTION: Civil Appeal No. 5948
of 2008
G
From the final Judgment and Order dated 12.12.2006 of
the High Court of Punjab and Haryana at Chandigarh in Civil
Writ Petition No. 19605 of 2006
P.S. Patwalia, Tatini Basu and Sudhir Nandrajog for the
H Appellant.
MUNICIPAL CORPORATION, LUDHIANA v. 99
INDERJIT SINGH & ANR.
~~
Moha Wasay Khan and R.S. Suri for the Respondents. A
The Judgment of the Court was delivered by
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 B
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 respon- c
dent 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-
XXl-12652 situated at Link Road near Pratap Chowk, Ludhiana. D
-)
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 ask-
ing her to show cause as to why the purported illegal construe-
tion of shed measuring 60' x 40' should not be demolished. She E
was asked to file a reply to the said notice of show cause within
three days. Allegedly, Hira Devi refused to accept the said no-
) tice. Another notice was issued on 1.2.2001 which was also not
seNed. Appellant, however, contended that the respondent was
\ fully aware bf the contents thereof as an application for com- F
pounding 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.
G
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 sane-
tioned plan and if there be any, the plaintiff was ready to pay the H
100 SUPREME COURT REPORTS [2008] 14 S.C.R.
A compounding fee. The contention of the plaintiff in this behalf f!:".
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 in-
terim order on 26.3.2001, directing :
B "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."
c 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 opera-
D tive 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
E
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
F construction within the stipulated period, then the Municipal
Corporation, Ludhiana will demolish the same at its own
level and the expenses will be recovered from you."
The subject matter of the said notice was stated to be :
G "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 com-
H pounding fee on a purported oral request made by him. On the
MUNICIPAL CORPORATION, LUDHIANA v. 101
INDERJIT SINGH & ANR. [S.B. SINHA, J.]
premise that no cause was shown, a demolition order was is- A
sued 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 al- 8
j leged unauthorized construction was demolished. It was di-
rected:
"In the present case, the appellant had challenged the
order passed by Municipal Corporation to demolish the c
construction. Ld. Addi. 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 D
to be relegated to the position as if no demolition was
done. I, therefore, allow the present appeal with costs
holding that the order 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 E
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. Addi. District
Judge, Ludhiana as if demolition has not taken place. The
restoration work shall be done by the respondents within F
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." G
8. A writ petition filed by the appellant questioning the le-
gality 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.
H
102 SUPREME COURT REPORTS [2008] 14 S.C.R.
A 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
B (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 although a
c 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
D 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
E
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
F 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
G 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.
H
MUNICIPAL CORPORATION, LUDHIANA v. 103
INDERJIT SINGH & ANR. [S.B. SINHA, J.]
10. Mr. Moha Wasay Khan, learned counsel appearing on A
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 B
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. c
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 sub-
ject to statutory interdict, the appellant-Corporation had the ju- D
risdiction 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 de-
termined only on the basis of a purported oral request made by
the first respondent, which prima facie cannot be accepted. How E
a statutory authority can pass a statutory order on an oral prayer
made by an owner of the property is beyond anybody's com-
prehension. On what basis the compounding fee was deter-
mined is also not known.
12. The power of demolition is conferred on the Corpora- F
tion 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 appea/.-(1) Where the G
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
H
104 SUPREME COURT REPORTS [2008] 14 S.C.R.
A 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
B 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 : '
c
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
D 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
E demolition of the erection or work to which it relates.
(3) ...
(4) Save as provided in this section no court shall
entertain any suit, application or other proceeding for
F 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
G
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
H or contrary to the sanctioned plan.
MUNICIPAL CORPORATION, LUDHIANA v. 105
INDERJIT SINGH & ANR. [S.B. SINHA, J.]
-~
13. A finding of fact has been arrived at that the notices A
dated 10.01.2001 and 01.02.2001 were not served on the re-
spondent. 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 B
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 c
demolition order was passed which, indisputably, has been
carried out.
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, D
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 afore-
mentioned notice dated 14.12.2001. It was a final order.
15. An appeal thereagainst was, thus, maintainable. Ap- E
pellant 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 in-
forming the court thereabout. Furthermore, the notice was F
vague. It did not conta.in any description of the property. How
much area of the property was the subject matter of unautho-
rized 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 G
~ 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)
H
106 SUPREME COURT REPORTS [2008] 14 S.C.R.
A 7 SCC 529] to 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.
B 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
C provides for an opportunity of hearing before an order of demo-
lition is passed. It is imperative in character but the said provi-
sion had not been complied with. The action on the part of the
appellant, therefore, was highly arbitrary. In Aligarh Muslim Uni-
versity (supra) itself, the Court noticed the decision of the Court
D in S.L Kapoor v. Jagmohan & Ors. [(1980) 4 SCC 379] wherein
it was held that non-compliance of the principles of natural jus-
tice 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
E as it was a case of overstay of leave by an employee. It was
found that no prejudice had been c9used to the petitioner therein.
Mr. Patwalia places strong reliance upon paragraph 21 of
the said decision which reads as under :
F "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,
G
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."
H
MUNICIPAL CORPORATION, LUDHIANA v. 107
-, INDERJIT SINGH & ANR. [S.B. SINHA, J.]
It is, therefore, not a case where one statutory order has
been set aside by a higher authority. The said principle, there-
A
fore, 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 viola-
tion of the provisions of the Act is of negligible character which B
,J did not warrant an order of demolition. Respondent No.1 's con-
tention 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 was c
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
D
appellant should be directed to restore such constructions for
7
which order of sanction had been obtained. To the said extent
the impugned order is modified.
/,
19. For the reasons aforementioned, the appeal is dis-
missed subject to the aforementioned modifications. In the facts E
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.)
N.J. Appeal dismissed.
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