Onkar Nath Tiwari v. Municipal Corporation, Bhilai

Judgment

3. Municipal Corporation, Bhilai, through Commissioner, Municipal Corporation, Bhilai, Tahsil & District Durg (CG). S.B. Sharma, Bhawan Adhikari, Nagar Palika Nigam (Municipal Corporation), Bhilai, Tahsil & Dist. Durg (CG).

Shri Sanat Kumar Banchchor, Revenue Officer, Municipal Corporation, Bhilai, Tahsil & District Durg (CG). Writ petition underArticle 226 ofthe Constitution of India) Single Bench : Hon'ble Shri Satish K. Agnihotri, J. Present:- Shri V.G. Tamaskar, counsel for the petitioner. Shri H.B. Agrawal, Sr. Advocate with Ms Meera Jaiswal, Advocate for the respondents. JUDGMENT & ORDER (Passed on this 3o'/<dav ofJuly, 2009)

2. Heard learned counsel for the parties. By this petition, the petitioner seeks a direction to the respondent authorities to reconstruct his demolished house within a period of two months or in alternate the respondent authorities may be directed to compensate an amount of Rs.20,00,0007- to the petitioner.

3. The facts, in nutshell, as projected by the petitioner, are that the petitioner is the registered owner of plot No.24, Block No.41 , Mother Teresa Nagar, Bhilai, which is evident from sale deed (Annexure - P/1). Vide order dated 6th October, 2006 (Annexure - P/2) the Building Officer, Municipal Corporation granted permission to the 1 i v^-c.'^1 '"C-St.^Si^"' S g %, u. ^'•} petitioner to construct the building. The drawing for construction of building was also approved by the Commissioner, Municipal Corporation vide Annexure - P/3. After completion of construction, the respondent authorities granted certificate of completion of the building construction. The petitioner got the electricity connection to his building after obtaining the No Objection Certificate from the respondent authorities. According to the petitioner, all of a sudden the respondent authorities issued a notice dated 22" January, 2008 (Annexure - P/8) to the petitioner stating that the petitioner has made illegal construction on the petition scheduled land. Even without waiting for the reply, the respondents demolished the building of the petitioner next day on 23 January, 2008, as a result of which the petitioner suffered a loss of Rs.20,00,000/-. Thus, this petition. Shri Tamaskar, learned counsel appearing for the petitioner, would submit that the petitioner has constructed the building only after obtaining prior permission from the respondent authorities. Even the electricity connection was also obtained after No Objection Certificate granted by the respondents. Learned counsel would further submit that only to harass the petitioner the respondent quthorities with a mala fide intention demolished the building of the petitioner without affording proper opportunity of hearing to the petitioner.

6. Per contra, Shri Agrawal, learned senior counsel appearing with Ms Meera Jaiswal, learned counsel for the respondents, would submit that there is no particulars of order against which the petition is filed by the petitioner. The permission for construction of building was related to only for the ground floor whereas the petitioner has constructed first floor and second floor and without permission 'w @ ground floor was extended up to 100%, which is against provisions of the Chhattisgarh Bhumi Vikas Niyam, 1994 and also against the Bhilai Development Plan. The residential building was converted into commercial building. Learned counsel would further submit that the petitioner was informed on 18 January, 2008 orally that the construction was illegal. Notice was given to the petitioner the provisions of Section 307 (3) of Municipalities Act, 1956 (for short "the Act, 1956"), but the petitioner the Chhattisgarh has not submitted his reply to the same, therefore, the petitioner cannot be said that no opportunity of hearing was afforded to him. Learned counsel would next submit that during demolition work, the respondent authorities incurred an amount of Rs.50,000/- towards the labour, rent & diesel oftwo J.C.B. machines. I have heard learned counsel appearing for the parties, perused the pleadings and the documents appended thereto.

8. The contention of lesirned counsel the petitioner petitioner was granted permission to construct structure on the first floor and second floor does not appear to be correct. On perusal of permission dated 6 October, 2006, it appears that in the plot of 216 sq. mtr., the petitioner was granted permission to construct 1148.43 sq.ft. on the ground floor only. There was no permission to make construction on the first floor or second floor or on any other floor. The permission specifically mentions that the construction cannot be more than 47.83% of the plot having 12 feet open area in the front, height not more than 12 feet, leaving 12 feet open space in the back,

11.3 on the right side and 8.9 feet on the left side. The map at Annexure - P/3 does not supersede the permission dated 6' October, 2006. Even on completion, the certificate was granted on the 7th July, 2007 indicating 1278 sq.ft. construction on the ground floor having 13' 6" height. No permission for construction as well as completion certificate has been given for construction on first and second floor. The electricity connection on the basis of No Objection Certificate dated 13th July, 2007 (Annexure - P/5) issued by the Municipal Corporation cannot be suggestive of the fact entire structure, which appears to be illegal, was approved. The only question, which is relevant, in this case is asto whether the notice dated 22nd January, 2008 (Annexure - P/8) issued under the provisions of Section 307 (3) of the Act, 1956 can be acted upon immediately without giving reasonable time to file response to the notice, as in the present case it is indisputable that after service of notice on the 22nd January, 2008, the structure was demolished on the 23"' January, 2008. The notice dated 22nd January, 2008 indicates that on spot inspection held on the 18th January, 2008 it was found that the petitioner has made construction on the first floor and second floor and has made excessive coverage without permission of the authorities.

10. On perusal of the papers produced by the petitioner, it appears that the construction raised on the first floor, second floor and further extra coverage on the ground floor was without proper sanction of the respondents, in accordance with law. 11 Shri Tamaskar, learned counsel appearing for the petitioner, placed reliance upon the decision of the Hon'ble Supreme Court rendered in Ahmedabad Municipal Corporation vs. Nawab Khan Gulab Khan and Others . The said decision is not relevant to the facts of the present case, as in that case question of removal of encroachers was involved. tn the said decision the Supreme Court observed as under: 1AIR 1997 SC 152 "9.....But removal of to obstruct in this behalfwhat requires to be done by the competent authority is to ensure constant vigil on encroachment of the public places. Sooner the is removed when sighted, better encroachment would be the facilities or convenience for passing or re-passing of the pedestrians on the pavements or footpaths facilitating free flow of regulated traffic on the road or use of public places. On the contrary, the longer the delay, the greater will be the danger of permitting the encroachers claiming semblances of right If the encroachment is of a recent encroachment. origin the need to follow the procedure of principle of natural justice could be obviated in that no one has a right to encroach upon the public property and claim the procedure of opportunity of hearing which would be a tardious and time-consuming process leading to putting a premium for high- handed and unauthorized acts of encroachment and unlawful squatting. On the other hand, if the Corporation allows settlement of encroachers for a long time for reasons best known to them, and reasons are not far to seek, then necessarily a modicum of reasonable notice for removal, say two weeks or 10 days, and personal service on the encroachers or substituted service by fixing notice on the property is necessary. If the encroachment is not competent authority would be at liberty to have it the fairness of removed. procedure and principle of giving opportunity to remove the encroachment voluntarily by the resistance, necessarily encroachers. On their appropriate and reasonable force can be used to Thus considered, we hold that the action taken by the appellant-Corporation is not violate of the principle of natural justice." removed within the specified time, That would meet encroachment removed.

12. As far as the question of non-compliance of principles of natural justice in the present case is concerned, the principles of natural justice is required to be complied with, but it is well known that this has exceptions. (See V.C. Banaras Hindu University and others vs. Shrikant^).

13. In S.L. Kapoor vs. Jagmohan and Others3, the Supreme Court observed as under: 2 3 (2006) 11 SCC42 (1980)48cc 379 ^ the general principle that "24. The matter has also been treated as an application of justice should not only be done but should be seen to be Jackson's Natural Justice (1980 Edn.) done. contains a very interesting discussion of subject. He says: "The distinction between justice being done seen to be done emphasised in many cases. . .. the significance of The requirement that justice should be seen to be done may be regarded as a general principle which in some cases can be satisfied only by the observance of the rules of natural justice or as itself forming one of those rules. Both explanations of maxim are found in Lord Widgery, C.J.'s v. Home Secretary, ex. p. judgment "the Hosenball, where saying principles the breach of which will fundamental prevent justice from being seen to be done" he went on to describe the maxim as of the rules generally accepted in the bundle of the rules making up natural justice". natural justice in f?. rules, "one It is the recognition of the importance of the requirement that justice is seen to be done that justifies the giving of a remedy to a litigant even when it may be claimed that a decision alleged to be vitiated by a breach of natural justice would still have been reached had a fair hearing been given by an impartial tribunal. The maxim is applicable precisely when the court concerned not with a case of actual injustice but injustice or possible with the appearance of injustice. In Altco Ltd. v. Sutherland Donaldson, in deciding whether to J., said that the court, interfere where an arbitrator had not given a party a full hearing was not concerned with whether a further hearing would produce a It was important different or the same result. that the parties should not only be given justice, but, as reasonable men, know that they had had use the time hallowed phrase" that justice or justice should not only be done but be seen to In R. v. Thames Magistrates' Court, be done. ex. p. Polemis, the applicant obtained an order to quash his conviction by a of certiorari stipendiary magistrate on the ground that he time to prepare his had not had sufficient rejected the defence. The Divisional Court argument that, in its discretion, it ought to refuse relief because the applicant had no defence to the charge. "to It is again absolutely basic to our system that justice must not only be done but must manifestly be seen to be done. If justice was so ', .^f^"*. •y 9,^ 'fi S WSs^ ^:'!"Sifia. !| S '^^^ it seems to me that clearly not seen to be done, as on the afternoon in question here, is no answer to the applicant to say: 'Well, ^39iieven if the case had been properly conducted, result would have been the same. That mixing up doing justice with seeing that justice is done (per Lord Widgery, C.J. at p. 1375)." In our view the principles of natural justice know of no exclusionary rule dependent on whether would have made any difference if natural justice had been observed. The non-observance of natural justice is itself prejudice to any man and proof of prejudice independently of proof of denial of natural justice is unnecessary. It ill comes from a person who has denied justice that the person who has been denied justice is not prejudiced. As we said earlier where on the admitted or indisputable facts only one conclusion is possible ^and under the law only one penalty is permissible, the court may not observance of natural justice, not because it is not necessary to observe natural justice but because courts do not issue futile writs. We do not agree with the contrary view taken by the Delhi High Court in the judgment under appeal." issue its writ to compel

14. Fraud, as is well known, vitiates all solemn acts. This is a case where the petitioner has not come before this Court with clean hands stating all the facts honestly and fairly.

15. The Supreme Court in Ram Chandra Singh vs. Savitri Devi and Others , observed as under: "15. Commission suppression of material facts are the core issues involved in these matters. Fraud as is well known vitiates every solemn act. Fraud and justice never dwell together."

16. In General Manager, Haryana Roadways vs. Jai Bhagwan and another, the Supreme Court observed as under: Suppression of material "13. is viewed seriously by the superior courts exercisi^ng their In S.J.S. Business discretionary Enterprises (P) Ltd. v. State of Bihar this Court on suppression offact held (SCC p. 173,para 13) jurisdiction.

13. As a general rule, suppression of a fact by a litigant disqualifies such material litigant from obtaining any relief. This rule has been evolved out of the heed of the courts to from abusing the process of deter a litigant "(2003) 8 SCC 319 5 (2008)43cc 127 l? %;;SS- S \ %>. J; ^ "s"i^. t/;' court by deceiving it. But the suppressed fact must be a material one in the sense that had it not been suppressed it would have had an effect on the merits of the case. The said observation was quoted with approval by one of us in Arunima Baruah v. Union of India, wherein the question which was raised was: How far and to what extent suppression of fact by way of non-disclosure would affect a person's right of access to justice? The Court notices that so as to enable it to refuse to exercise its discretionary the suppression must be of material jurisdiction, fact. What would be a material fact, suppression whereof would disentitle the appellant to obtain a discretionary relief, would depend upon the facts and circumstancesof each case.

17. On perusal of the pleadings, is demonstrably clear that petitioner has not stated correct facts in the petition and, as such, he has not come with clean hands, which amounts to committing fraud, therefore, the petitioner is not entitled to any relief. Even otherwise, the principles of natural justice cannot be put in a straight jacket. It depends on the facts of the case where non-issuance of proper notice causes prejudice to the person concerned. Admittedly the petitioner has constructed first floor, second floor and further construction on the ground floor beyond permission and, as such, the petitioner has no explanation to offer. In such a situation, no writ can be issued to comply with the principles of natural justice and grant consequential relief as prayed for in this writ petition.

18. For the reasons mentioned hereinabove and applying the well settled principles of law to the facts of the present case the petitioner is not entitled to any relief, as the petitioner has not come to this Court with clean hands and suppressed the material facts with regard to permission/sanction by the authorities for construction of first floor, second floor and further extension on the ground floor.

19. In the result, the petition is liable to be and is accordingly dismissed. No order asto costs. Gowri Sdl- SatishK.Agnihotri Judge