2025:HHC:14743 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No.1946 of 2024 Decided on: 20.05.2025 Sh. Rajesh Kumar … Petitioner Versus Municipal Corporation, Shimla & another … Respondents Coram Hon’ble Mr. Justice Ajay Mohan Goel, Judge. Whether approved for reporting?1Yes ____________________________________________________ _ For the petitioners : Mr. G.C. Gupta, Senior Advocate, with Mr. Deepak Gupta, Advocate. For the respondents : Mr. Anil Kumar Chauhan, Advocate, for respondent No.1. Respondent No.2 ex parte. Ajay Mohan Goel, Judge (Oral) By way of this writ petition, the petitioner has, inter alia, prayed for the following relief:- “(i) That the impugned order dated 05.11.2022 (Annexure P-1) and impugned judgment dated 17.06.2023 (Annexure P-2) be ordered to be set aside and quashed with further directions to the respondent Corporation to give petitioners an opportunity of being heard.” 2. When this case was listed on 20.03.2025, the following order was passed:- “Learned Senior Counsel appearing for the petitioner submits that the only issue involved in this Writ Petition is as to whether the petitioner was condemned unheard by the Municipal Commissioner or not. He submits that in order to ascertain this fact, let the record of Commissioner be requisitioned by the Court. Ordered accordingly. 1 Whether reporters of the local papers may be allowed to see the judgment? 2 2025:HHC:14743 List on 05.05.2025, on which date, learned counsel appearing for the Corporation shall produce the record of the case. Interim to continue.” 3. Thereafter, on 16.05.2025, the following order was passed:- “The record of the proceedings before the Commissioner, Municipal Corporation, Shimla, have been produced for the perusal of the Court. A perusal thereof demonstrates that the proceedings in the matter were undertaken by the Commissioner pre-COVID and post COVID. Pre- COVID, the petitioner was proceeded against ex-parte but no order was passed in the proceedings on merit by the Commissioner. Thereafter, the matter after 02.05.2020 was taken up by the Commissioner on 30.07.2022, on which date the following order was passed:- “Case called. Present JE for M.C. Shimla and none for the respondent Smt. Lalita Devi and Mr. Rajesh Kumar. The respondent has already been proceeded ex-parte on 26.02.2016 and 02.03.2019. JE has prepared the status report and as per the status report of the Junior Engineer the unauthorized construction is still existing on the site. The case to come up for order on 05.11.2022.” This Court is of the considered view that in the peculiar facts of the case, wherein, the Authority itself was taking up the matter afresh after the COVID-19 lock down, prudence demanded and interest of justice also demanded that fresh notices ought to have been issued to the parties. This not having been done, the Court has serious doubts about the validity of the order passed by 3 2025:HHC:14743 the Commissioner for the reason that when no order was passed by the Authority on merit before the COVID-19 lock down, minimum that was required from the Authority was that after it again was seized of the matter after the lock down was over, one notice at least should have been issued to the parties intimating them about the factum of the matter again being taken up for consideration by the Authority. At this stage, learned counsel for respondent No.1 submits that he may be granted some time to have instructions in the matter. List on 20.05.2025, as prayed for. Record be produced on the said date too.” 4. Pursuant to the said order, the record of the proceedings held by learned Commissioner has been made available for the perusal of the Court. Annexure P-2 is the order passed by learned Commissioner, Municipal Corporation, Shimla, H.P. in the proceedings that were initiated against the petitioner and one Smt. Lalita Devi, under Section 253 read with Sections 242 and 254 (6)of the H.P. Municipal Corporation Act, 1994, relevant portion thereof reads as under:- “Now therefore I Ashish Kohli HAS Commissioner, Municipal Corporation Shimla hereby ordered for removal of the unauthorized construction from the premises of the respondents within a period of 30 days. The owners of the building are directed to remove the same within the aforesaid period failing which the same shall be got removed by the a team comprising of Architect Planner, Junior Engineer (AP Branch) and Junior Engineer (R&B 4 2025:HHC:14743 Deptt.) of the Municipal Corporation at your risk, cost and responsibility. Further non compliance of the order on the part of the owner, the water and electricity connection provided in the premises shall be got disconnected forthwith without issuing any further notice/order in this regard. The Architect Planner, M.C Shimla is directed to ensure compliance of the order in letter and spirit and supply copy of the order to the respondent forthwith for ensuring compliance.” 5. This order has been upheld by the Court of learned District Judge, Shimla, H.P., exercising the powers of Appellate Authority under H.P. Municipal Corporation Act, 1994. 6. Order (Annexure P-2) was passed by Commissioner, Municipal Corporation, Shimla, on 05.11.2022. The order was passed by Shri Ashish Kohli, HAS, who at the relevant time was Commissioner of the Municipal Corporation, Shimla. 7. A perusal of the record produced by the Municipal Corporation demonstrates that the proceedings in the matter were initiated as far back as in the year 2002. the proceedings continued and petitioner Rajesh Kumar was proceeded against ex parte in terms of order dated 26.02.2016. Order dated 26.02.2016 reads as under:- “Case called. Sr. AP/JE for the M.C. Shimla came present and none for the respondent Smt. Lalita Devi. One of the respondent Sh. Rajesh Kumar has been duly served and he has received the summons, but he has absented today and hence proceeded exparte. The other respondent Smt. Lalita Devi be served for the next date of hearing. Be 5 2025:HHC:14743 listed for 13.05.2016.” 8. Thereafter, the matter continued and the other party in the case, namely, Smt. Lalita Devi was also proceeded against ex parte on 03.03.2019 and this order reads as under:- “Case called. Present AP/JE for the M.C. Shimla came present and none for the respondent Smt. Lalita Devi. The respondent has already been proceeded exparte. Be listed for consideration on 25.08.2018.” 9. Thereafter, in terms of the record, in the year 2019 though the case was listed on three occasions on 31.05.2019, 23.08.2019 and 26.10.2019, it was adjourned on account of pre-occupation of learned Commissioner. 10. Thereafter, the case was taken up on 04.01.2020 and the matter was ordered to be listed on 02.05.2020. In the interregnum, the matter could not be taken up on account of COVID-19 Pandemic and the matter was taken up on 30.07.2022 and on the said date, the following order was passed:- “Case called. Present JE for M.C. Shimla and none for the respondent Smt. Lalita Devi and Mr. Rajesh Kumar. The respondent has already been proceeded ex-parte on 26.02.2016 and 02.03.2019. JE has prepared the status report and as per the status report of the Junior Engineer the unauthorized construction is still existing on the site. The case to come up for order on 05.11.2022.” 11. Thereafter, on 05.11.2022, the following order was passed:- 6 2025:HHC:14743 “Case called. Present JE for M.C. Shimla and none for the respondent Smt. Lalita Devi. She has already been proceeded ex-parte on 02.03.2019. The another respondent Shri Rajesh Kumar has already been proceeded ex-parte on 02.03.2019. JE has prepared the status report and stated that the unauthorized construction is still existing on the site. The notice issued dated 25.11.2011 is made absolute and the demolition order is passed accordingly. The detailed orders shall be passed separately.” 12. Having perused the record of the case, this Court is of the considered view that as the petitioner herein stood proceeded against ex parte somewhere in the year 2016 and the matter was ultimately decided in the year 2022 and that too, by an incumbent different then the one who was serving as Commissioner when the matter actually was being heard in the presence of the parties in the year 2016, the least that was expected and more so, after the case was taken up by the Authority after COVID-19 Pandemic, was that they ought to have had issued fresh notice to the parties, directing them to appear before the Authority concerned. This unfortunately was not done as is evident from the record. Though in the year 2016, the petitioner herein was proceeded against ex parte, yet deciding the case at his back and that too in the year 2022 after the COVID-19 Pandemic on account of which the matter was not listed for two 2 years, without issuance of any fresh notice to the petitioner is not sustainable in law. This is more so for the reason that the officer who was there in the year 2016, was not the same who was 7 2025:HHC:14743 serving as the Commissioner, Municipal Corporation when the final order was passed. 13. In the backdrop of this discussion, neither the order under challenge passed by learned Commissioner, nor the order passed by the Appellate Authority are sustainable in the eyes of law because herein the delay in the adjudication of the matter and that too, accompanied by the gap in the proceedings on account of COVID-19 Pandemic demanded at least issuance of a fresh notice when the matter was taken up again by the Authority after the COVID-19 Pandemic in the year 2022, so that the petitioner got a fresh opportunity to put forth his case before the Authority concerned. 14. Accordingly, this petition is allowed. Order dated 05.11.2022 (Annexure P-1) and judgment dated 17.06.2023 (Annexure P-2) are quashed and set aside and the matter is remanded back to learned Commissioner concerned with the direction to decide the case afresh after hearing the parties and after issuing them fresh notice by adhering to the principles of natural justice and the matter will be heard from the stage where it was when the petitioner was proceeded against ex parte. 15. The petition stands disposed of. Pending miscellaneous application(s), if any also stand disposed of accordingly. (Ajay Mohan Goel) Judge May 20, 2025 (Rishi)