DULA RAM Vs. THE MUNICIPAL COMMITTEE, HISSAR

JUDGEMENT

(1.) THIS Court has been moved by Dula Ram and Jama Ram Petitioners for the exercise of its extraordinary jurisdiction under Articles 226 of the Constitution of India and the issue of an appropriate writ or direction quashing the notices served on them by the Municipal Committee, Hissar ( hereinafter called the Committee,) whereby they were called upon to demolish the buildings said to have been erected by them without sanction of the latter. Facts as are necessary for the proper disposal of the writ petition may be stated hereunder. The Petitioners were lessees of the Committee for a number of years and rent notes were executed by them from year to year for a period of 11 months each time. They claim to be holding the sites for more than 20 years but the respondent -committee while denying in its return the exact period of 20 years has not stated for how long the Petitioners have been the lessees. It is a common case of the parties that under each of the two shops, one -half land belongs to the Committee and the other half to Sanatan Dharam Temple which is located on the back side of these shops. The Petitioners allege that the shops covering the two sites belonging to the Committee and the Sanatan Dharam Temple were in existence for the same period of 20 years hut the case of the Committee is that the back half portion belonging to the temple was taken by the Petitioners on rent for the first time in 196 and it was then that they re -erected constructions thereon. Dula Ram indeed continued in possession of the plot as an heir of his deceased father who had obtained the same from the Committee under a resolution dated August 20, 1953 whereas Juma Ram, Petitioner No. 2, was put in possession as lessee under a resolution dated February 2, 1955 and he continued as such thereafter. The rent -notes, according to the Committee, had not been completed in the manner prescribed by law.

(2.) IT is admitted by the Committee that the plots let out by it to the Petitioners had temporary constructions built thereon but the new constructions, which may be described as re erections, were actually raised only 1964 after taking additional area from the Sanatan Dharam Temple. Notices under Section 195 read with Section 35 of the Act were delivered to the Petitioners on behalf of the President of the Committee on April 4, 1964 calling upon them to demolish the unauthorised constructions within a period of four days, failing which action according to law, was threatened to be taken against them. The violation alleged was of Section 189 of the Act which prohibit the construction of a building or re -erection thereof without the requisite sanction. Section 195 is in the following terms: Should a building be begun or erected or re -erected -

(3.) THERE can be no manner of doubt that Section 35 is intended to be used sparingly and only in on unforeseen situation threatening consequences likely to result in extensive damage to property or danger to human life grave inconvenience to the public which cannot be avoided by having resort to the normal requirements of law No copy of the notices referred to above was placed on the record by either of the parties but I have looked into the executive file and a true copy of one of such notices is now marked by me as Annexure 'W' and the translation thereof as Annexure 'W -l'. There is no indication in these notices as to what was the emergency and how it became necessary for the President to exercise his extraordinary powers to avoid damage to property or danger to human life or grave incontinence to the public. He seems to have issued the notices under advice from the Deputy Commissioner. The Petitioners submitted their replies, copies whereof have been filed as Annexures 'R/1' and 'R/2' by the respondent Committee. The case set up by them was that on the sites let out to them, the shops had already been constructed and that at the back of the Committee's land they took some more land on rent from the Sanatan Dharam Temple. It was stated that they had connected that land with the shops and not undertaken any new construction inasmuch as only repairs of the walls on the old foundations were effected. It was further submitted in reply that the construction was only on that part of the site which belonged to the Committee and if the Committee deemed it fit they were prepared to pay some amount by way of compensation The notices and the replies thereto appear to have been shelved and the emergency that compelled the President to exercise his powers under Section 35 also evaporated since I find that nothing happened till April 1, 1967 when after three years notices under section 220 were issued requiring the Petitioners to demolish constructions within six hours. The Petitioners again submitted their replies on May 3, 1967. Both of them requested the Committee to accept compensation in such sums as it might think reasonable. Further request was that the action by the Committee in this regard be expedited. Again, the whole matter was thrown in cold storage.