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TMI Blog2008 (10) TMI 732X X X X Extracts X X X X X X X X Extracts X X X X ..... ng her to show cause as to why the purported illegal construction of shed measuring 60' x 40' should not be demolished. She was asked to file a reply to the said notice of show cause within three days. Allegedly, Hira Devi refused to accept the said notice. Another notice was issued on 1.2.2001 which was also not served. Appellant, however, contended that the respondent was fully aware of the contents thereof as an application for compounding that portion of the construction which was within the compoundable limit was filed. On an oral request made by the first respondent, a compounding fee of Rs. 1,95,374/- was fixed. Allegedly, a memorandum was issued asking him to pay the said amount but he failed and/or neglected to do so. 4. A suit was filed by the respondent No. 1 for permanent injunction restraining the appellant from demolishing the said property. In the plaint of the said suit, it was, inter alia, averred that there was no excess covered area in terms of the sanctioned plan and if there be any, the plaintiff was ready to pay the compounding fee. The contention of the plaintiff in this behalf was that only an area of 14 sq. ft. was in excess of the legally sanct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hed the same. Parties are therefore to be relegated to the position as if no demolition was done. I, therefore, allow the present appeal with costs holding that the order of respondents threatening to demolish the construction is illegal and void and same is accordingly set aside except so far that the construction was not in accordance with the sanctioned plan. The respondents are directed to restore the construction at its own costs and expenses as it stood at the time when the order dated 22.12.2001 was passed by Ld. Addl. District Judge, Ludhiana as if demolition has not taken place. The restoration work shall be done by the respondents within three months from today, needless to mention that the respondents may recover the costs of construction from its employees responsible for the illegal demolition of construction. Counsel fee is assessed as Rs. 5000/-. File be consigned to the record room. 8. A writ petition filed by the appellant questioning the legality of the said order dated 5.9.2006 has been dismissed by a Division Bench of the High Court by reason of the impugned judgment. The High Court, in its judgment, inter alia, held: (i) That notices were issued agai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g to the appellant a compounding fee of Rs. 1,95,374/- was determined only on the basis of a purported oral request made by the first respondent, which prima facie cannot be accepted. How a statutory authority can pass a statutory order on an oral prayer made by an owner of the property is beyond anybody's comprehension. On what basis the compounding fee was determined is also not known. 12. The power of demolition is conferred on the Corporation in terms of Sections 269 of the Act, the relevant portions whereof read as under: 269. Order of demolition and storage of buildings and works in certain cases and appeal.--(1) Where the erection of any building or execution of any work has been commenced, or is being carried on or has been completed without or contrary to the sanction referred to in Section 262 or in contravention of any condition subject to which such sanction has been accorded or in contravention of any of the provisions of this act or bye laws made under, the commissioner may , in addition to any other action that may be taken under this Act, make an order directing that such erection or work shall be demolished by the person at whose instance the erection or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the first respondent was asked to file his show cause. Where a noticee, fails to carry out such direction, demolition can be carried out by the Corporation at the cost of the owner. In effect and substance, therefore, an order of demolition was passed in terms of the aforementioned notice dated 14.12.2001. It was a final order. 15. An appeal there against was, thus, maintainable. Appellant furthermore acted arbitrarily insofar as it demolished the structures, despite pendency of the suit. We would assume that the order of injunction was granted for a limited period, but it is expected of a Statutory Corporation to act thereupon upon informing the court thereabout. Furthermore, the notice was vague. It did not contain any description of the property. How much area of the property was the subject matter of unauthorized constructions had not been disclosed. It is not in dispute that a plan for construction of the building was sanctioned. It was, therefore, obligatory on the part of the authorities of the appellant to categorically state as to how much area, if any, was the subject matter of unauthorized construction. 16. Strong reliance has been placed by Mr. Patwalia on Aligarh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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