Point of Law: Decision of Tribunal to determine is not liable to be questioned in proceedings under Article 226 of Constitution unless at least it is shown to be fully unsupported by evidence.

JUDGMENT :

Both these petitions have been heard together and are being decided by a common judgment on account of inter-connection of facts involved.

2. For clarity, petitioner in CWP 3672 of 2022 will hereafter be referred as “the petitioner”, respondent No.1 as “the Corporation”, Commissioner of respondent No. 1 as “the Commissioner” and the respondent No 2 who also is the petitioner in CWP 5507 of 2022 will be referred to as “the respondent”

3. Facts necessary for adjudication of these petitions are that a complaint was received by the Architect Planner of the Corporation on 14.11.2019, through the “Chief Minister Sankalp Seva”, alleging acts of unauthorized construction against the petitioner. The Commissioner on 5.12.2019 issued a notice under Sections 254(6) & 253 read with Section 242 of the Himachal Pradesh Municipal Corporation Act, 1994 (for short, ‘the Act’) to the petitioner requiring him to show cause as to why the civic amenities provided to petitioner be not withdrawn and why the unauthorized construction raised by him be not demolished. Petitioner was required to submit his response within three days and also to present himself before the Commissioner on 7.12.2019 at 10.00 a.m. The allegation in the notice dated 5.12.2019 read as under:

“You have erected/raised CGI sheets fencing having height from 1.60 to 2.20 mtrs. On the both side of the path/road at Kanlog by violating M.C. building bye-laws and without any permission of competent authority”.

4. Petitioner submitted his reply to the Commissioner on 7.12.2019. It was stated that petitioner was not the sole owner of the properties. The CGI fencing had been raised much before 16.11.2017 to protect the plot of petitioner and other co-owners from debris/garbage etc. being dumped by the residents of the area. Petitioner also submitted that the construction on the part of plot of land was being raised in accordance with sanction. Certain counter-allegations were also levelled against the persons residing in neighbourhood for which the petitioner had reserved liberty to file separate complaint.

5. The proceedings initiated against petitioner by the Commissioner were not taken to logical end within reasonable time. Respondent alongwith some other residents of the area approached this Court by way of CWP No.2694 of 2020 seeking directions against the Commissioner to decide the proceedings against petitioner expeditiously and to complete the construction of Ambulance road undertaken by the Corporation from Shiv Mandir to Durga Mandir in Kanlog area of Shimla town. The respondent and other petitioners in CWP No. 2694 of 2020 had also alleged having filed complaint against petitioner. According to them, petitioner by raising CGI sheet fencing on both sides of the path, on one hand had encroached upon the path and on the other prevented the Corporation from constructing Ambulance road.

6. The Division Bench of this Court on 29.10.2020 issued directions in CWP No.2694 of 2020 to the Commissioner to complete the proceedings against petitioner as expeditiously as possible and in no event later than 31.12.2020. The parties or their counsel(s) were directed to appear before the Commissioner on 06.11.2020 at 11.00 A.M.

7. The petitioner was duly represented in CWP No. 2694 of 2020 and order dated 29.10.2020 in said petition was passed in presence of learned counsel representing the petitioner.

8. Petitioner did not appear before the Commissioner on 06.11.2020. The Commissioner proceeded with the case and finally passed an order against petitioner on 24.12.2020, the operative part of the order passed by the Commissioner reads as under:

“Now, in terms of the directions passed by the Hon’ble National Green Tribunal coupled with the provisions contained in Section 253 of the Himachal Pradesh Municipal Corporation Act, 1994, and in compliance to the orders dated 29.10.2020 passed by the Hon’ble High Court of H.P. in CWP No. 2694 of 2020 titled as N.D. Bhardwaj & others Vs. State of H.P. the