Haryana Urban Development Authority v. Satpal Gupta
2005-10-07
M.M.KUMAR
body2005
DigiLaw.ai
Judgment 1. This is defendants appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, the Code ) challenging concurrent findings of facts recorded by both the Courts below to the effect that notice dated 30-3-1995 (Ex. P-3) issued by the defendant-appellants calling upon the plaintiff-respondent to demolish the building of House No. 1127, Sector 13, Urban Estate, Karnal is illegal and not binding on the rights of the plaintiff-respondent. The plaintiff-respondent after obtaining sanction of the site plan had erected the building on the plot. He was issued an occupation certificate on 24-6-1988 (Ex. P-1) by the defendant-appellants. It has been proved on record that the occupation certificate was issued by the defendant-appellants. It has not been the case of the defendant-appellants that the plaintiff-respondent had raised construction in addition to the construction already raised at the time of issuance of occupation certificate on 24-6-1988 (Ex. P-1). In this regard, statement of Jaspal Singh, Junior Engineer (P.W. 2) is significant wherein he stated that after completion of the construction, he inspected the building and the occupation certificate was issued thereafter. When the certificate was exhibited, no objection was raised with regard to its admissibility. Both the Courts below have not permitted the objection concerning admissibility at any later stage and in this regard reliance has been placed on the judgement of the Supreme Court in the case of P. C. Purushothama Reddiar V/s. S. Perumal, AIR 1972 SC 608. The issuance of notice after about 7 years in the year 1995, has been held to be altogether illegal because under Section 55 of the Haryana Urban Development Authority Act, 1977 (for brevity, the Act ), such a notice could be issued within a period of six months of the raising of construction. The omission to produce any documentary evidence showing that occupation certificate Ex. P-1 had never been issued by the defendant-appellants has been considered sufficient for raising the presumption in favour of issuance of a certificate. For example, neither the dispatch register has been produced nor the official who had issued the certificate has been brought into the witness box to disprove the genuineness of the document. Therefore, a lawful inference has been drawn that occupation certificate (Ex. P-1) was issued by the defendant appellants as per rules. Accordingly, both the Courts below have taken the view that notice dated 30-3-1995 (Ex.
Therefore, a lawful inference has been drawn that occupation certificate (Ex. P-1) was issued by the defendant appellants as per rules. Accordingly, both the Courts below have taken the view that notice dated 30-3-1995 (Ex. P-3) contrary to the provisions of Section 55 of the Act and was, thus, liable to be set aside being illegal. 2. Having heard the learned counsel at a considerable length, I am of the view that no interference of this Court in exercise of jurisdiction under Section 100 of the Code is required as no question of law, much less a substantive question of law has been raised in this appeal. It has been concurrently found that occupation certificate was issued on 24-6-1998 (Ex. P-1) and about seven years thereafter, notice has been issued on 30-3-1995 (Ex. P-3). Such a course is not permissible according to Section 55 of the Act, as it could have been done only within a period of six months. The objection regarding admissibility of Ex. P-1 raised at the belated stage has been rightly rejected by placing reliance on the judgement of the Supreme Court in the case of P.C. Purushothama Reddiar (supra). The view has been followed by the Supreme Court in the cases of Narbada Devi Gupta V/s. Birendra Kumar Jaiswal (2003) 8 SCC 745 : (AIR 2004 SC 175) and R. V. E. Venkatachala Gounder V/s. Arulmigu Viswesaraswami and V. P. Temple, (2003) 8 SCC 752 : (AIR 2003 SC 4548). In the later case the Supreme Court has pointed out two different classes of objections by observing in para 20 and the same read as under :- "......... Ordinarily, an objection to the admissibility of evidence should be taken when it is tendered and not subsequently. The objections as to admissibility of documents in evidence may be classified into two classes (i) an objection that the document which is sought to be proved is itself inadmissible in evidence, and (ii) where the objection does not dispute the admissibility of the document in evidence but is directed towards the mode of proof alleging the same to be irregular or insufficient. In the first case, merely because a document has been marked as "an exhibit", an objection as to its admissibility is not excluded and is available to be raised even at a later stage or even in appeal or revision.
In the first case, merely because a document has been marked as "an exhibit", an objection as to its admissibility is not excluded and is available to be raised even at a later stage or even in appeal or revision. In the latter case, the objection should be taken when the evidence is tendered and once the document has been admitted in evidence and marked as an exhibit, the objection that it should not have been admitted in evidence or that the mode adopted for proving the document is irregular cannot be allowed to be raised at any stage subsequent to the marking of the document as an exhibit. The latter proposition is a rule of fair play. The crucial test is whether an objection, if taken at the appropriate point of time, would have enabled the party tendering the evidence to cure the defect and resort to such mode of proof as would be regular. The omission to object becomes fatal because by his failure the party entitled to object allows the party tendering the evidence to act on an assumption that the opposite party is not serious about the mode of proof. On the other hand, a prompt objection does not prejudice the party tendering the evidence, for two reasons, firstly, it enables the Court to apply its mind and pronounce its decision on the question of admissibility then and there, and secondly, in the event of finding of the Court on the mode of proof sought to be adopted going against the party tendering the evidence, the opportunity of seeking indulgence of the Court for permitting a regular mode or method of proof and thereby removing the objection raised by the opposite party, is available to the party leading the evidence. Such practice and procedure is fair to both the parties. Out of the two types of objections, referred to hereinabove, in the latter case, failure to raise a prompt and timely objection amounts to waiver of the necessity for insisting on formal proof of a document, the document itself which is sought to be proved being admissible in evidence. In the first case, acquiescence would be no bar to raising the objection in a superior Court.
In the first case, acquiescence would be no bar to raising the objection in a superior Court. The Privy Council in Padman V/s. Hanwania (AIR 1915 PC 111) did not permit the appellant to take objection to the admissibility of a registered copy of a Will in appeal for the first time. It was held that this objection should have been taken in the trial Court........." 3. When the facts of the present case are examined in the light of the principles laid down by the Supreme Court, it becomes evident that the mode of proving occupation certificate (Ex. P-1) had not been objected to at an appropriate stage which might have enabled the plaintiff-respondent to meet the objection or to resort to better mode of proof. There was a lawful presumption against the defendant-appellants that they condoned any irregularity in the mode of proof. Moreover, Jaspal Singh P.W. 2 who is a junior engineer has deposed that after completion of building, he inspected it and then issued occupation certificate. Therefore, no doubt is left with regard to issuance of occupation certificate (Ex. P. 1) by the defendant-appellants. The objection with regard to jurisdiction of the Civil Court has also been overruled by following the principle that notice Ex. P-3 was not issued in exercise of powers under the Act and that the principles of natural justice stood violated. Therefore, there is no merit in this appeal. 4. For the reasons aforementioned, this appeal fails and the same is dismissed. As the appeal itself has been dismissed on merits, I do not feel the necessity of passing any order on the application filed under Section 5 of the Limitation Act, 1963 seeking condonation of 53 days delay in filing of the appeal and on the other application filed under Section 151 of the Code seeking condonation of 388 days delay in re-filing the appeal.