Ashwani Sood Vs Municipal Corporation Shimla

The instant petition arises out of judgment, as passed by learned Additional District Judge (CBI), Shimla, H.P., dated 31.12.2021, whereby the appeal filed by the present petitioner was dismissed and the order, as passed by Commissioner, Municipal Corporation, Shimla, dated 10.07.2019 came to be affirmed, whereby the Commissioner, Municipal Corporation had passed the order of demolition of the building, owned by the present petitioner. 2. The facts as emerge in the present case are that under the provisions of Section 253 of H.P. Municipal Corporation, Act, 1994,

¶10

Whether reporters of Local Papers may be allowed to see the judgment?

¶11

-2-

¶12

notice was issued to the petitioner on 20.10.2014. Admittedly, the said proceedings kept pending before the Commissioner, Municipal Corporation, Shimla and thereafter second notice came to be issued on behalf of the respondent on 09.07.2019. In the said notice, it was alleged that a case is pending against the present petitioner in the Court of learned Commissioner, Municipal Corporation, Shimla since 15.11.2014 and the present petitioner is carrying out unscientific and illegal cutting in addition to the unauthorized construction under the garb of retention policy. It was stated that last and final opportunity is granted to the present petitioner to file reply within one day, failing which right to file reply shall be struck off.

¶13

It was alleged that the present petitioner is raising blatant, uncalled and unscientific cutting for the last two months, which may cause danger to the life and property in the vicinity and in that eventuality, the present petitioner shall be solely responsible for the illegal act. Therefore, while invoking the provisions of Section 254(6) of H.P. Municipal Corporation Act, 1994, another notice was issued to the present petitioner to show cause as to why the NOC issued in favour of the present petitioner regarding water and electricity connections be not withdrawn. The present petitioner was directed to file reply to the said show cause notice on or before 10.07.2019, failing which the action shall be taken accordingly.

¶14

-3-

¶15

On 10.07.2019, the Commissioner, Municipal Corporation, passed the impugned order and it was held that while invoking the provisions of Section 253 of H.P. Municipal Corporation Act, 1994, the objections of the present petitioner came to be dismissed and he was directed to take adequate precautionary measures to ensure that the land which has already been excavated be protected from rains so that no further damage is caused to the adjoining properties. The S.P., Shimla, was requested to depute police constable at the disputed site and check any kind of further violation at the site in question and the costs for the same shall be borne by the present petitioner. In the said order, the present petitioner was directed to demolish the unauthorized construction as carried out by him on the spot.

¶16

Feeling dissatisfied, the present petitioner instituted an appeal in the Court of learned Additional District Judge (CBI), Shimla, H.P., on 24.07.2021. The learned first appellate Court vide its impugned judgment dated 31.12.2021 dismissed the appeal as preferred by the present petitioner.

¶17

Still feeling aggrieved, the petitioner has approached this Court by invoking the provisions of Article 227 of the Constitution of India.

¶18

It is contended by Mr.Sumit Sood, learned counsel for the petitioner, that the impugned judgment and order as passed by the learned Court/Authority are erroneous and liable to be quashed and

¶19

-4-

¶20

set aside. He submits that the Commissioner, Municipal Corporation, Shimla, passed the order without following the principles of natural justice and without affording adequate opportunity of being heard to the petitioner. The order was passed at the back of the present petitioner. He further submits that interestingly, the notice was issued to the present petitioner on 09.07.2019 and within 24 hours the impugned order was passed by Commissioner, Municipal Corporation without affording any opportunity to place his case on record. He further submits that, after accepting the present petition, the impugned judgment/order deserves to be quashed and set aside and the proceedings as initiated by the respondent deserve to be dropped.

¶21

On the other hand, Mr. Mukul Sood, learned counsel for the respondent, has defended the impugned judgment and order as passed by the learned Additional District Judge (CBI), Shimla, H.P., and the Commissioner, Municipal Corporation, Shimla. He submits that the present petitioner is a violator and no premium should be given to him. Since the petitioner has raised an unauthorized construction on the spot, therefore, the judgment/order as passed by learned Court/Authority is legal, valid and sustainable.

¶22

I have heard the learned counsel for the parties and have gone through the case file carefully.

¶23

The case of the present respondent is that the present petitioner has raised unauthorized construction on the spot and, on

¶24

-5-

¶25

that count, notice was issued under Section 253 of H.P. Municipal Corporation Act, 1994, on 20.10.2014. It is admitted by learned counsel for the parties that during the pendency of the said proceedings, a second notice came to be issued to the present petitioner on 09.07.2019. The notice is part of present case as Annexure P-5. In the said notice, the present petitioner was called upon to reply to the said notice on or before 10.07.2019, failing which action would be taken against him accordingly. Though, the petitioner filed the reply to the said notice and this fact is admitted by learned counsel for the respondent, however, it has been vehemently argued by learned counsel for the petitioner that even though reply stood filed before the Commissioner, Municipal Corporation, Shimla, no opportunity of being heard was given to the present petitioner or his counsel. It has been alleged that the order was passed behind the back of the present petitioner within a period of 24 hours in hot haste. He further submits that it has been stated in the grounds of appeal before the learned first appellate Court that the Commissioner, Municipal Corporation, passed the order at his back and did not give any hearing to the petitioner or his counsel. The case has been projected by learned counsel for the petitioner that on this sole ground, the impugned judgment/order deserves to be quashed and set aside. 11. This Court is in agreement with the contention of learned counsel for the petitioner that though notice was issued to the

¶26

-6-

¶27

petitioner on 09.07.2019, the impugned order was passed by the Commissioner, Municipal Corporation within a period of 24 hours. Further, the record also reveals that learned counsel for the respondent has failed to establish that either the petitioner or his counsel was heard in the matter. In the present case, the principles of natural justice have certainly been violated and disregarded completely ignoring the exposition of law as laid down by Hon’ble Apex Court in DIRECTIONS IN THE MATTER OF DEMOLITION OF STRUCTURES, IN RE, (2025) 5 SCC 1, which reads as follows:

¶28

“67. The right to a fair trial is essential in upholding the rule of law and protecting individual liberties. It ensures that the principles of natural justice and fair process are being strictly followed. H.L.A. Hart summarized the principle of natural justice as follows: “It may be said that the distinction between a good legal system which conforms at certain points to morality and justice, and a legal system which does not, is a fallacious one, because a minimum of justice is necessarily realized whenever human behaviour is controlled by general rules publicly announced and judicially applied. Indeed we have already pointed out,' in analysing the idea of justice, that its simplest form (justice in the application of the law) consists in no more than taking seriously the notion that what is to be applied to a multiplicity of different persons is the same general rule, undeflected by prejudice, interest, or caprice. This impartiality is what the procedural standards known to English and American lawyers as principles of 'Natural Justice' are designed to secure. Hence, though the most odious laws may be justly applied, we have, in the bare notion of applying a general rule of law, the germ at least of justice.”

¶29

-7-

¶30

68. John Rawls defined the principle of natural justice in the following words:

¶31

“Finally, there are those precepts defining the notion of natural justice. These are guidelines intended to preserve the integrity of the judicial process. If laws are directives addressed to rational persons for their guidance, courts must be concerned to apply and to enforce these rules in an appropriate way. A conscientious effort must be made to determine whether an infraction has taken place and to impose the correct penalty. Thus, a legal system must make provisions for conducting orderly trials and hearings; it must contain rules of evidence that guarantee rational procedures of inquiry. While there are variations in these procedures, the rule of law requires some form of due process: that is, a process reasonably designed to ascertain the truth, in ways consistent with the other ends of the legal system, as to whether a violation has taken place and under what circumstances. For example, judges must be independent and impartial, and no man may judge his own case. Trials must be fair and open, but not prejudiced by public clamor. The precepts of natural justice are to insure that thelegal order will be impartially and regularly maintained.”

¶32

66. It is thus required that the trial must be fair and open, but not prejudiced by public clamor. The precepts of natural justice are to ensure that the legal order will be impartially and regularly maintained. An accused cannot be declared guilty, unless proven so beyond reasonable doubt before a court of law. They cannot be declared guilty, unless there is a fair trial”

¶33

To the similar extent, the same proposition of law has been laid down by the Coordinate Bench of this Court in Ashok

¶34

-8-

¶35

Thakur and another vs. M.C. Shimla and others, 2017(2) Shim. LC.

¶36

785 and the relevant paragraphs are reproduced as under:-

¶37

“27. Furnishing of specific and intelligible reasons for the purpose of notice is only a concomitant of the concept of reasonable opportunity and fair play. Unless the noticee knows the precise case is required to meet out, he would be handicapped in putting forth his objections effectively.

¶38

28 to 30 xxx xxx xxx

¶39

31. Now, the further question that arises for consideration is as to whether the respondent No. 2 while passing the impugned order, has infact applied its mind and given reasons for his conclusion or has simply arrived at a conclusion without disclosing any reasons. As observed earlier, the reply filed by the petitioners was not even taken into consideration and the impugned order on the face of it is bereft of any reasons. Therefore, it can safely be concluded that while passing the impugned order, the relevant factors have not been objectively considered. The minimum that was expected from the respondent No.2 was that in support of his order, he ought to have given reasons that were cogent, clear and succinct, more especially, when the order passed by him was subject to an appeal. As already observed, the decision being bereft of any reasons is a result of caprice, whim and fancy of respondent No.2 and suffers from vice of arbitrariness as also non-application of mind.”

¶40

Therefore, the petitioner has been able to make out a case for interference in the present proceedings. Without touching upon the merits of the case and without adjudicating on the same, this Court is of the considered opinion that the impugned judgment/order deserves to be quashed and set aside on the ground that the principles of natural justice have not been followed by the

¶41

-9-

¶42

authority/Commissioner. Learned first appellate Court has not dealt with this aspect, though in the grounds of appeal this ground was specifically taken.

¶43

After accepting the present petition, the impugned judgment passed by learned first appellate Court and Municipal Corporation, Shimla, is quashed and set aside, the case is relegated to the Commissioner, Municipal Corporation, Shimla with a direction to adjudicate and determine the case afresh strictly in accordance with law after following the procedure as enshrined under the H.P. Municipal Corporation, Act, 1994. An endeavour should be made by the Commissioner, Municipal Corporation, Shimla, to expedite the matter and take the same to its logical end.

¶44

However, it is made clear that in the garb of the present order, the petitioner shall not raise any unauthorized construction and in the event of doing so, he shall lose the benefit of the instant order. 16. The Commissioner, Municipal Corporation, Shimla is directed to issue notice to the respective parties for their presence. 17. In view of observations made hereinabove, the present petition is disposed of along with pending application(s), if any.

¶45

(Romesh Verma) Judge

¶46

10^th July, 2026. ( vt )

Ashwani Sood v. Municipal Corporation Shimla

Case brief

What is this about?

What did the court decide?

Ashwani Sood v. Municipal Corporation Shimla

Case brief

What is this about?

What did the court decide?

Why is it important?

What the court decided

Issues for consideration

Cases cited

Statutes considered

Procedural history

Parties & counsel

Coram

Case details

Similar cases

Om Prakash Garg (deceased) through LRs and Another Vs Rakesh Kapila

Govind Alias Govind Ram Vs UOI and Others

Thakur Chand Vs Sneh Lata

Dev Raj Kapta Vs Puran Chand and Another

Dev Raj Kapta Vs Praveen and Others

State of Hp and Others Vs Ram Lal and Others