N.D.M.C. vs Pradeep Kumar
1998 Latest Caselaw 834 Del

ORDER

S.N. Kapoor, J.

1. This appeal is directed against the judgment and decree dated 19.8.1981 accepting the appeal and remanding the matter.

2. The crux of the matter is: "Whether any notice under Section 195 of the Punjab Municipal Act, 1911 was given or not?".

I quote Section 195 of the said Act:

"195. Penalty for disobedience,_Should a building be begun erected or re-erected

(a) without sanction as required by section 189(1); or

(b) without notice as required by section 189 (2); or

(c) when sanction has been refused.

the Committee may by notice delivered to the owner within six months from the completion of the building, require the building to be altered or demolished as it may deem necessary within the period specified in such notice; and should it begin or erected

(d) in contravention of the terms of any sanction granted; or

(e) when the sanction has lapsed; or

(f) in contravention of any bye-law made under section 190; or in the case of a building of which the erection has been deemed to be sanctioned under section 193 (4), if it contravenes any scheme sanctioned under section 192;

the committee may by notice to be delivered to the owner within six months from the completion of the building require the building to be altered in such manner as it may deem necessary, within the period specified in such notice:

Provided that the committee may, instead of requiring the alteration or demolition of any such building, accept by way of compensation such sum as it may deem reasonable:

Provided also that the committee shall require a building to be demolished or altered so far as is necessary to avoid contravention of a building scheme drawn up under section 192:

Provided further that if any notice is issued by the Executive Officer under this section on the ground that a building has been begun or has been erected in contravention of the terms of any sanction granted or in contravention of any bye-law made under section 190 the person to whom the notice is issued may, within fifteen days from the date of service of such notice, appeal to the committee, and subject to the provisions of sections 224, 232 and 236, the decision of the committee shall be final".

3. According to the plaintiff-respondent the building was in existence prior to 1.4.1978 and as such there was no ground for issuance of notice under Section 195 dated 24.2.1979. From the perusal of the order it is apparent that the notice was not served personally on the owner as required under Section 195 for according to the case of the respondent it was affixed at the premises on 26.2.1979. The learned Trial Court held that the plaintiff knew the contents and took the view that the court has no jurisdiction to try the matter. From the order of the Trial court as well as Appellate Court it is apparent that there is no finding at all that the notice was given within six months from the date of completion of construction.

4. Feeling aggrieved by the order of the Appellate Court the present appeal has been filed.

5. The submission of the learned counsel for the appellant is that the learned Trial Court presumed and rightly so that the construction was undertaken in terms of notice. The notice reads as under:

NOTICE

It has been reported to this Committee by unauthorized construction cell that you have erected/re-erected a building.

1. Fixed two girder of size m.a. 12' each.

2. Fixed six angle irons of size m.a. 14' each.

3. Cement concrete over the Agra stone slabs which has been placed over the girders & angle iron.

All this is without the sanction of the committee I am therefore directed to serve you OA with notice under Sec. 195 of the Punjab Municipal Act, 1911 to demolish the unauthorized structure as mentioned above within three days of receipt by you of this notice. In the event of your failing to comply with this notice legal action will be taken against you without further warning.

sd/-

SECRETARY

6. This notice is addressed to Pradeep Kumar, occupant. The notice does not disclose as to when the construction was undertaken, when it was completed and when it was noticed. However it also indicated that the building was completed before the date of inspection. But the action was recommended for it was found to be 15/20 days old only as per record shown by the N.D.M.C.

7. Thus it is evident that there is not even an inspection note indicating that the construction was being completed or was in progress at the time of inspection. It was just an inference drawn by the person who inspected the premises. Supposing that these persons may have acquired some special knowledge of ascertaining the age of construction and the fact that there is presumption of correctness about official reports under Section 114 of the Evidence Act yet the judgment of the Trial Court does not indicate that this inspection note which has been shown to me today was before the learned Trial Court and the learned Trial Court gave any finding thereon. At least there is no reference to the inspection note in the judgment of the learned Trial Court. In such circumstances I do not find it appropriate to interfere with the order of the Appellate Court. Accordingly, the appeal has got no force. It is dismissed accordingly. The parties are left to bear their own cost.