LAWS(P&H)-2009-11-162

GIAN CHAND Vs. MUNICIPAL COUNCIL AND ORS.

Decided On November 13, 2009
GIAN CHAND Appellant
V/S
Municipal Council And Ors. Respondents

JUDGEMENT

(1.) THE order, which is challenged in revision is a direction for violation of the decree for injunction granted in favour of the decree holder and determining a compensation of Rs. 27,702/ - for illegal demolition of the boundary wall and allowing for attachment of the property for enforcement of the injunction decree by way of compensation to decree -holder for the amount as determined.

(2.) THE singular point for consideration is whether there had been a violation of the decree for injunction. The injunction was sought for in a Civil Suit No. 104 instituted on 16.02.1991 by the plaintiff in relation to a property, which he had purchased on 04.01.1991 stating that he had put up construction on the property subsequent to the purchase after securing a duly sanctioned plan from the Municipality, but the Municipality was preparing to demolish the construction. On a statement given by a chief functionary of the Municipality that the Municipal Council would not take any action except in due course of law, the decree was passed, as mentioned above.

(3.) WHILE any detailed order relating to encroachment may not be necessary, there required to be a satisfaction by the Executive Officer on an objective consideration of all the relevant facts. An ascertainment of encroachment would not be possible by mere report of an engineer. An engineer can show encroachment and a draftsman can draw up a plan and show that it was an encroachment. But if they must stand judicial scrutiny, they shall be shown to have been drawn as per what was. found in the Town Planning Scheme and if there existed a variance on site to how the Town Planning Scheme had formulated the lay out of the streets and their alignments, the same should be brought out by the Executive Authority in his proceedings before he orders the removal of the alleged encroachment. In this case, while examining whether the Municipal Council had carried out the provisions of law before encroachment, it has to be seen in the context of how it proceeded from the time when they purported to carry out field inspection to the time when they carried out the demolition. Ex.R -4, was produced by a witness as a site plan prepared according to the report of the Assistant Engineer. Ex.R -3 was merely a part of the plan of the Town Planning Scheme and does not appear to have been drawn by making any physical verification at the spot. If there existed one, at least I can state that it is not before the Court. If a report of an encroachment had been made to the Executive Officer and if a notice of prosecution had been issued only under such a pretext, the Executive Officer must have done so, only after approving the report given by the field staff and his own satisfaction on objective consideration reflected in some proceedings, but there are no such records.