CIVIL WRIT PETITION NO. 8238 OF 2008 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
DATE OF DECISION: November 17, 2008.
Parties Name
Jaspal Singh and another
..PETITIONERS
VERSUS
State of Punjab and others
...RESPONDENTS
CORAM: HON'BLE MR. JUSTICE T.S.THAKUR, CHIEF JUSTICE
HON'BLE MR. JUSTICE JASBIR SINGH
PRESENT: Mr. Vishal Aggarwal,
Advocate, for the petitioner
Mr. H.S.Sidhu, Addl. A.G., Punjab
for respondents No. 1 and 4.
Mr. R.S.Bajaj, Advocate, for
respondents No. 2 and 3.
Mr. P.S. Thiara, Advocate,
for respondent No. 5.
Mr. Sukhbir Singh Mattewal, Advocate,
for respondent No. 6.
1. Whether Reporters of local papers may be allowed to see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
T.S.THAKUR, CHIEF JUSTICE (oral)
JUDGMENT
This petition has been filed in public interest. It prays for a
CIVIL WRIT PETITION NO. 8238 OF 2008 -2-
direction to the respondents to stop the construction activity, started by
respondent No. 6, in a residential area at B-7, 1794/95, Nagar Mandi,
Chaura Bazar, Ludhiana, and to initiate appropriate action for removal of
the misuse of the said property, which is otherwise situate in a residential
area. A direction restraining respondent No. 5 from granting any electric
connection for the construction unauthorisedly raised by respondent No. 6
has also been prayed for.
In response to the notice issued by this Court, counter affidavits
have been filed by respondents No. 2 and 6. In the counter affidavit, filed by
the respondent – Municipal Corporation, it is stated that respondent No. 6
has not taken any permission from the Corporation for raising the
construction. It is further stated that respondent No. 6, who happens to be
the President of Shri Akalgarh Gurdwara, has constructed nearly 75 shops
within the premises in possession of Shri Akalgarh Gurdwara and that the
said shops have also been constructed without any permission from the
Municipal Corporation. The said shops are, according to the counter
affidavit, presently lying vacant. The counter further states that as per the
prevailing practice, religious institutions do not take any permission from
the Municipal Corporation before raising any building within their
premises.
Appearing for respondent No. 6 Mr. Mattewal argued that the
entire street, in which the construction in question has been raised, is
commercial in nature. He drew our attention to the photographs enclosed
with the writ petition in support of his submission that the properties situate
in the said area are being used both for residential and commercial purposes.
The allegation made by the petitioners that the area is purely residential is
CIVIL WRIT PETITION NO. 8238 OF 2008 -3-
not, therefore, factually correct. It was also fairly conceded by Mr.
Mattewal that although the area is mixed use area, yet the permission of the
Corporation to raise any structure in the said area was necessary, which
could not for whatever reasons be obtained by respondent No. 6 before
raising the construction. He submitted that respondent No. 6 could even at
this stage approach the Corporation for grant of sanction post facto, in
which event the respondent – Corporation would examine the same
according to the relevant Municipal By-Laws and pass appropriate orders
on the request for grant of permission. The Corporation could also examine
the question whether any part of the structure, raised by respondent No. 6
was impermissible as per the By-Laws and whether the said violation could
be compounded on payment of the requisite compounding fee.
Learned counsel for the Corporation was also agreeable to that
course of action being adopted. He urged that if a request for grant of
sanction is made by respondent No. 6, the Corporation will look into the
matter and pass appropriate orders in accordance with law.
The offending construction appears to have been started and
completed by respondent No. 6 without first obtaining the requisite sanction
from the Corporation, as was necessary under the leading By-Laws. To that
extent, the construction is unauthorised and could be proceeded against.
What is surprising and difficult to appreciate is the inaction of the
Municipal Corporation authorities in the matter of preventing such
construction at the appropriate stage. There is no explanation forth-coming
from the Corporation for its failure to take appropriate action at the
appropriate stage. There is also no explanation why the Corporation did not
proceed against the officer concerned with implementing and enforcing the
CIVIL WRIT PETITION NO. 8238 OF 2008 -4-
building By-Laws in the area in question. If an officer of the Corporation
fails to report about an on-going violation, he commits misconduct, for
which he ought to be suitably dealt with by the authorities. In the
circumstances, therefore, all that we need to direct in the present writ
petition is that in case respondent No. 6 submits building plans and an
application for post facto regularisation of the construction within a period
of six weeks from today, the competent authority of the Corporation shall
examine the same and pass appropriate orders in accordance with law. In
case no such plans are submitted, the authority shall initiate action for
removal of the unauthorised construction. The authority shall also take
action against the official, if any found negligent in the matter of reporting
the violation, committed by respondent No. 6.
This writ petition is with the above directions disposed of
leaving the parties to bear their own costs.
( T.S.THAKUR)
CHIEF JUSTICE
(JASBIR SINGH)
November 17, 2008. JUDGE
DKC