C. R. No. 5347 of 2010

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.

Case No. : C. R. No. 5347 of 2010

Date of Decision : September 27, 2010

Municipal Corporation, Patiala and another ....

Petitioners

Vs.

M/s S. K. Motors and others

....

Respondents

CORAM : HON'BLE MR. JUSTICE L. N. MITTAL

* * *

Present :

Mr. Baljinder Singh, Advocate

for the petitioners.

* * *

L. N. MITTAL, J. (Oral) :

Municipal Corporation, Patiala and its Town Planner have

invoked jurisdiction of this Court under Article 227 of the Constitution of

India by filing instant revision petition assailing judgment dated 27.02.2010

passed by learned Additional District Judge, Fast Track Court, Patiala,

thereby allowing appeal filed by respondents M/s S. K. Motors and its

partners Surinder Kumar and Rajinder Kumar under Section 269 (2) of the

Punjab Municipal Corporation Act, 1976, challenging notice dated

24.04.2008 (Annexure P-1) issued by petitioner no.1 Municipal

Corporation.

C. R. No. 5347 of 2010

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Site plan of respondents herein for construction of building

including basement and three floors was sanctioned by appellant no.1

Corporation. However, appellant no.1 issued notice Annexure P-1 requiring

respondent no.1 herein to show cause as to why order for demolition of the

building raised by the respondents herein be not made on account of

violations of the building plan. Violations mentioned in the notice are

reproduced hereunder :-

“1.

Your lease order has expired on

28/2/07.

2.

There is no NOC of the neighbour is

available in the file.

3.

NOC from the Forest Department was

required to be obtained by March 2007

which has not been obtained by you.

4.

NOC has not been obtained from the

Railway Department.

5.

The construction has been started at

site.”

I have heard learned counsel for the petitioners and perused the

case file.

Learned counsel for the petitiones, after having sought

instructions from the petitioners, states that the alleged violations mentioned

C. R. No. 5347 of 2010

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in the show cause notice Annexure P-1 were not mentioned in the order,

whereby building plan of respondents herein was sanctioned by petitioner

no.1. If the building plan sanctioned by petitioner no.1 did not require the

respondents to comply with the aforesaid objections, the petitioners have no

right to raise these objections after the respondents have erected building

pursuant to sanction of building plan granted by petitioner no.1 Corporation

itself. If respondents herein were required to comply with the alleged

violations mentioned in the show cause notice, building plan should not

have been sanctioned or should have been sanctioned subject to compliance

of these objections. However, admittedly, no such condition was stipulated

by petitioner no.1 while sanctioning building plan of respondents herein.

Consequently, petitioners have no right to order demolition of the building

of respondents herein because they have raised the construction pursuant to

sanction of building plan granted by petitioner no.1 Corporation itself.

Learned counsel for the petitioners contended that objection

no.2 mentioned herein above can be raised even now because respondents

herein submitted affidavit of one Gurbax Singh as neighbour of the

proposed building, having no objection to the sanction of the building plan,

but in fact, the neighbouring building is not owned by said Gurbax Singh.

The contention is completely beyond the show cause notice and the material

on record. No such plea was even raised before the lower appellate court.

It is also not mentioned in the show cause notice Annexure P-1 that Gurbax

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Singh, who gave affidavit of `no objection', is not owner of the

neighbouring building nor it is mentioned in the show cause notice as to

who is the owner of the neighbouring building. Learned counsel for the

petitioners referred to photograph