Paramjeet Singh, J.(Oral)
This second appeal arises from a suit for permanent injunction filed by plaintiff-Gian Chand restraining defendant-Municipal Committee from demolishing any part of the house in dispute which has been decreed by the Court of first instance vide judgment and decree dated 19.02.1987 Feeling aggrieved, defendant preferred an appeal which has been dismissed with some modification by lower Appellate Court, vide judgment and decree dated 27.08.1987
The detailed facts are already recapitulated in the judgments of the courts below and are not required to be reproduced. However, the brief facts relevant for disposal of this regular second appeal are that plaintiff filed the suit with the allegations that he is owner of the house which is situated within the limits of Municipal Committee Tanda Urmur, shown in red colour in site plan and fully described in the head note of the plaint. Plaintiff constructed the house in the year 1973 after getting sanction from defendant. Defendant served a notice upon plaintiff requiring him to demolish some portion of the house in dispute on the allegations that plaintiff had made encroachment upon its property. However, plaintiff has not made any encroachment on the property of defendant.
Defendant resisted the suit and alleged that plaintiff had included the property of defendant in his house without any right, title or interest. In case any site plan was proved to have been sanctioned by any employee of defendant, the same is result of fraud and misrepresentation because defendant could not have allowed plaintiff to raise construction on the property of Municipal Committee. Other allegations in the plaint were denied.
On the basis of pleadings of parties, the Court of first instance framed following issues:
“1. Whether the plaintiff is entitled to the injunction prayed for? OPP
2. Whether the site plan filed by the plaintiff is correct? OPD
3. Whether the site plan, if any, mentioned for the construction to be raised by the plaintiff if proved is the result of misrepresentation as alleged? OPD
4. Whether the plaintiff has encroached upon the property of the Municipal Committee? OPD
5. Whether the suit is not maintainable in the present form? OPD
6. Whether the civil court has no jurisdiction to try the suit? OPD
7. Relief.”
After appreciating the evidence, the Court of first instance decreed the suit. Feeling aggrieved, defendant preferred an appeal which has been dismissed by lower Appellate Court with some modification that defendant-Municipal Committee would be at liberty to take recourse to any other law for removal of encroachment, if any. Hence, this regular second appeal.
I have heard learned counsel for appellant and perused the record.
A coordinate Bench of this Court in RSA No. 3679 of 1987, decided on 17.07.2013 has dealt with the similar issue as involved in the present appeal, wherein, it has been held as under:
“12. Now the question which survives for consideration is whether the appellant-Municipal Committee is within its jurisdiction to demolish portion of the house of the respondent-plaintiff which was allegedly constructed without obtaining the necessary sanction from the Municipal Committee. Admittedly, notice Ex.P-5 was issued by the Municipal Committee under Sections 195-A and 172 of the Act. It would be appropriate to refer Section 172 of the Act which runs ut-infra:
“172. Punishment for overhanging structure over street.-(1) Whoever without the written permission of the committee makes any immovable encroachment on or under any street, or on over or under any sewer, or water-course erects or re-erects any immovable overhanging structure projecting into a street at any point above the said ground level, shall be punishable (with imprisonment of either description which may extend to one month and shall also be liable to fine which may extend to one thousand rupees).(2) The committee may, by notice, require the owner or occupier of any building to remove or alter, within a specified time not exceeding six weeks, such immovable encroachment overhanging structure as aforesaid, and no compensation shall be claimable in respect of such removal or alteration;
Provided that if a period of more than three years has elapsed from the completion of the (over hanging structure, no prosecution shall lie under sub-section (1); -nor shall such) overhanging structure be required to be removed or altered without payment of reasonable compensation.)”
13. A glance at the aforesaid provision transpires that in case of an encroachment on any immovable property belonging to the Municipal Committee, it can proceed for removal of the same by issuing notice but within a specified period not exceeding 6 weeks and further, if the period of more than three years has elapsed from the completion of the encroachment, no prosecution lies under sub-Section 1 of Section 172 of the Act. Such a question also came up for hearing before this Court in case Shri Rikhi Ram v. The State of Punjab; 1975 PLJ 188 wherein the following observation was made:
“The municipal Committee while sitting in its own office cannot form an opinion whether somebody has in fact made any illegal encroachment on land belonging to it or not. For taking action under Section 172 of the Punjab Municipal Act, the person proceeded against has to be served with a notice to show cause why it should not be assumed that he had made encroachment upon Municipal land and that such encroachments if not removed within a particular period shall be removed by the Municipal Committee at the cost and expense of the person concerned. It is not open to Municipal Committee to assume that citizens had made encroachments and they were liable to be prosecuted for not removing them on notices being issued to them in that behalf.”
14. In the case in hand also, there is nothing on record to establish that any show cause notice was issued to the plaintiff respondent. Moreover, in the case in hand, the Municipal Committee has failed to establish the encroachment over the municipal street or that the portion marked C & D in site plan Ex.D-1 has been constructed by making encroachment on the part of the street comprised in Khasra No. 58.
15. Similarly, a perusal of the provisions contained in Section 195 of the Act depicts that action can be taken under it for the removal of unauthorized construction within a period of six months from the completion of the construction of the building. In the instant case, the construction of premises Marked C & D shown in the site plan Ex.P- 1 was raised by the respondent-plaintiff without obtaining the prior permission but in the year 1983. So, the notice under Section 195 (A) of the Act is also not legal and valid especially being beyond the period provided in the Act. Moreover, the judgment of the learned lower Court and that of the first appellant Court are based upon pure findings of facts and the same cannot be interfered with by this Court in the regular second appeal, even if, they are grossly erroneous as held by Hon'ble the Supreme Court in case of Pakeerappa Rai v. Seethamma Hengsu ‘D’ by LRs; JT 2001 (5) SC 537. No substantial question of law is involved in the present appeal.
16. In the light what has been discussed above, this Court does not find any illegality or impropriety in the impugned judgments and decrees. Hence, the appeal is without any merit and the same is hereby dismissed with costs Rs. 5000/- to be paid to the respondent.”
The present appeal is squarely covered by the proposition of law laid down in the regular second appeal referred above. No question of law, muchless substantial question of law, is involved in the present regular second appeal. I do not find any illegality or perversity in the impugned judgments and decrees. Hence, the present appeal is dismissed.
However, no order as to costs.
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