JITINDER SINGH Vs. MUNICIPAL CORPORATION, CHANDIGARH

JUDGEMENT

(1.) THIS order would dispose of two Civil Revision Petition name by C.R. No. 4485 of 1999 and 6427 of 1999 as the common questions of facts and law have been raised. The facts are being mentioned from C.R. No. 4485 of 1999 which has been filed by the plaintiff-petitioner. The revision petitions have been filed under Section 115 of the Code of Civil Procedure, 1908 (for brevity 'the Code') and are directed against the order dated 10.9.1999 passed by the Addl. District Judge, Chandigarh partially allowing the appeal of the plaintiff-petitioner which had been filed against the order dated 26.8.1999, the Civil Judge (Junior Division), Chandigarh has dismissed the application of the plaintiff-petitioner in which prayer for ad interim injunction had been made. The Addl. District Judge while partially allowing the appeal of the plaintiff-petitioner held that defendant-respondent did not have any power to direct the plaintiff-petitioner to remove third floor as it is beyond the ambit of Section 415 of the Punjab Municipal Corporation Laws (Extension to Chandigarh) Act, 1994 (for brevity 'the Act'). However, the ld. Addl. District Judge held that the Assistant Commissioner, Municipal Corporation acted within his power by directing the removal of cantilever and doors.

(2.) BRIEF facts of the case as unfolded in the pleadings of this case are that the plaintiff-petitioner filed Civil Suit No. 685 dated 21.8.1999 for permanent injunction restraining the defendant-respondents from demolishing the third floor of his building cantilever and doors etc. The order dated 16.8.1999 issued by the Assistant Commissioner was also challenged. In the afore-mentioned order, the Assistant Commissioner has directed the plaintiff- petitioner to close the door, remove the cantilever and also to demolish the third floor as it was found to be constructed in contravention of various provisions of the Act. The case set up by the plaintiff-petitioner in the suit is that no opportunity has been given to him and the Assistant Commissioner did not have any power to issue such like orders. It was further asserted that under Section 415 of the Act it would not amount to encroachment as alleged by the Assistant Commissioner in his order dated 16.8.1999. Alongwith the suit an application for ad interim injunction under Order 39 Rules 1 and 2 of the Code was also filed. The trial Court dismissed the application and the Addl. District Judge partially allowed the application by issuing directions to the respondent-Corporation to refrain from demolishing the third floor. This conclusion has been arrived at on the rationale that construction of third floor does not amount to encroachment within the meaning of Section 415 of the Act and, therefore, there was no power with the Assistant Commissioner to issue an order in that regard. The operative part of the order passed by the Addl. District Judge reads as under :

(3.) SHRI S.D. Sharma, learned senior counsel for the plaintiff-petitioner has raised two fold submissions. Firstly, he has argued that once the Addl. District Judge has come to the conclusion that the third floor would not amount to encroachment within the meaning of Section 415 of the Act then the order itself becomes contradictory in as much as the same argument would apply to the removal of cantilever. His second argument is that the order dated 16.8.1999 has been issued without affording any opportunity of hearing to the plaintiff-petitioner as the order has straightway directed the plaintiff- petitioner to remove the cantilever as well as the third floor. In so far as the order directing the closing of the door is concerned, Shri S.D. Sharma submits that the door has been closed voluntarily by the plaintiff-petitioner.