MUNICIPALITY INDORE Vs. HATIM ALI

JUDGEMENT

(1.) THIS is a second appeal from a judgment of the second Additional District Judge, Indore, confirming the judgment of the Additional City Civil Judge, Indore, in Original Suit No. 664 of 1951.

(2.) THE brief facts are that the plaintiff Hatim Ali had constructed a house with the sanction of the Municipal Commissioner but the latter objected to certain structures which were not according to the sanction. A notice was given to the plaintiff to remove those structures which were not according to the sanction. The plaintiff's contention was that all structures were according to sanction and should not be removed. The plaintiff, therefore, came to the court and filed a suit for granting permanent injunction restraining the Municipal Commissioner from demolishing those structures. Both the courts have held that the structures in question were not according to the sanction of the authorities, but have expressed the opinion that the order of demolition of those structures is a very harsh one and the Municipal Commissioner would be justified in compounding the case and accepting compensation from the plaintiff. Merely on this ground the suit has been decreed by the trial court and curiously enough, its judgment has been confirmed in first appeal.

(3.) THIS view has not been accepted by any High Court in India and it was clearly overruled by a Division Bench of the Punjab High Court consisting of Harries C.J. and Mahajan J. (as he then was) in : A.I.R. 1945 Lah 151 (Administrator, Corporation of Lahore vs. Mangal Sen). The Division Bench in this ruling discussed the provisions of S. 195 of the Punjab Municipal Act (3 of 1911) and came to the conclusion that the language of that section makes it clear that when it is proved that a building has been erected without proper sanction, the discretion is that of the Committee whether to order demolition or to take compensation. It was observed that the court cannot substitute itself for the Committee and decide whether or not a demolition order should be made or whether compensation should be demanded. It was added that there is no power in a court to compel the Committee to accept compensation. The Legislature has given choice to the Committee to take one course or the other and the quantum of compensation is also within the sole discretion of the Committee.