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2011 DIGILAW 191 (PNJ)

Harish Handa v. Virender Kumar

2011-01-18

L.N.MITTAL

body2011
JUDGMENT Mr. L. N. Mittal, J. (Oral) : - C. M. No. 11730-C of 2009 and R. S. A. No. 3848 of 2009 : Defendant no. 3 – Dr. Harish Handa is in second appeal having lost in both the courts below. 2. Respondent no.1 – plaintiff Virender Kumar filed suit against Haryana Urban Development Authority (HUDA), Faridabad through Administrator, Estate Officer, HUDA (respondents no.2 and 3) as defendants no.1 and 2 and Dr. Harish Handa – appellant-defendant no.3. 3. Plaintiff is owner in possession of No.2451, Sector 16, Faridabad. Defendant no.3 is owner in possession of Nursing Home, Site No.1, Sector 16, Faridabad. The dispute relates to door in the plaintiff’s house opened in the back wall on Southern side. Defendants no.1 and 2 issued notice dated 22.06.2000 to the plaintiff alleging that the disputed gate had been opened by the plaintiff in violation of Article 3 of the HUDA (Erection of Buildings) Regulations, 1979 (in short – the Regulations). Plaintiff was required to show cause why action against him be not taken under Section 55 of the Haryana Urban Development Authority Act, 1977 (in short – the Act). Plaintiff sent reply to the said show cause notice alleging that the alleged violation relating to the disputed gate had been compounded by appellant on composition fee of Rs.200/- vide receipt dated 12.01.2000. Accordingly, the plaintiff sought permanent injunction restraining the defendants from demolishing the disputed gate. 4. Defendant no.2 inter alia pleaded that gate on Western side rear wall of the plaintiff’s house was compounded. The plaintiff has unauthorizedly opened the disputed gate on Southern side after obtaining Completion Certificate, and therefore, the impugned show cause notice was rightly issued. Bar of jurisdiction of Civil Court by Section 50 (2) of the Act was also pleaded. Various other pleas were also raised. 5. Defendant no.3 also contested the suit and inter alia pleaded that plaintiff has illegally opened the disputed gate and he has no right to open the same. The said violation has not been compounded and cannot be compounded. Various other pleas were also raised. 6. Learned Civil Judge (Junior Division), Faridabad, vide judgment and decree dated 29.08.2008, decreed the plaintiff’s suit. Judgment and decree of the trial court were challenged by defendants no.1 and 2 by filing first appeal and also by defendant no.3 by filing separate first appeal. Various other pleas were also raised. 6. Learned Civil Judge (Junior Division), Faridabad, vide judgment and decree dated 29.08.2008, decreed the plaintiff’s suit. Judgment and decree of the trial court were challenged by defendants no.1 and 2 by filing first appeal and also by defendant no.3 by filing separate first appeal. Both the said appeals have, however, been dismissed by learned Additional District Judge, Faridabad vide common judgment dated 20.07.2009. Feeling aggrieved, defendant no. 3 only has preferred the instant second appeal. 7. Along with the appeal, appellant has also moved C. M. No. 11730-C of 2009 for additional evidence to produce information Annexure A-1 received by the appellant from HUDA under the Right to Information Act. Reply to said application on behalf of respondents no. 2 and 3, filed today in Court, is taken on record, whereas reply to the said application on behalf of respondent no.1 already stands filed. 8. I have heard learned counsel for the parties and perused the case file. 9. Learned counsel for the appellant contended that information Annexure -1 has been supplied under the Right to Information Act and the same being relevant, be admitted by way of additional evidence. 10. Learned counsel for the appellant next contended that defendant no.2 initiated action against the plaintiff under Section 55 of the Act read with Article 3 of the Regulations, and therefore, jurisdiction of Civil Court is barred by Section 50 (2) of the Act. 11. Learned counsel for the appellant also contended that building plan of plaintiff was sanctioned by HUDA vide Sanction Order Ex.P-5, which inter alia stipulates that zoning violation will not be compounded. Impugned show cause notice Annexure P-9 stipulates that construction of disputed unauthorized gate is in contravention of approved zoning plan. It was accordingly contended that the said violation could not be compounded. It was also submitted that in fact, the said violation has not been compounded because according to defendants no.1 and 2, gate on Western side was compounded and the disputed gate on Southern side has not been compounded. 12. Learned counsel for respondent no.1 – plaintiff, on the other hand, contended that the disputed gate has been compounded, as held by both the courts below. It was also contended that gate on Western side was already sanctioned, and therefore, did not require composition. 12. Learned counsel for respondent no.1 – plaintiff, on the other hand, contended that the disputed gate has been compounded, as held by both the courts below. It was also contended that gate on Western side was already sanctioned, and therefore, did not require composition. It was also contended that defendants no.1 and 2 are not aggrieved and have not filed any second appeal and defendant no.3-appellant has no locus standi to fle the instant second appeal. It was also pointed out that gate in the back wall in rear courtyard is not permissible adjoining to park/parking, but in the instant case, disputed gate does not adjoin park/parking. It was also contended that information Annexure A-1 is dated 27.01.2009, whereas first appeals were decided by the lower appellate court on 20.07.2009 i.e. almost six months thereafter, but the proposed additional evidence was not sought to be produced in first appeal by the appellant. 13. I have carefully considered the rival contentions. Following substantial questions of law arise for determination in the instant second appeal:- “1. Whether the finding of the courts below, that the disputed Southern gate has been compounded, is perverse or illegal and based on misreading or misappreciation of evidence on record ? 2. Whether jurisdiction of Civil Court to try the suit is barred ? 3. Whether disputed Southern gate of the plaintiff could be legally compounded ?” 14. Defendant no.2 – Estate Officer, exercising power of Chief Administrator, issued the show cause notice to initiate action under Section 55 of the Act. Section 50 (2) of the Act lays down that no Civil Court shall have jurisdiction to entertain any suit or proceedings in respect of any matter, the cognizance of which can be taken and disposed of by any Authority empowered by this Act or the rules and regulations made thereunder. Section 50 (1) of the Act also inter alia provides that every notice issued by the Authority or its Officer under the Act shall be final and shall not be questioned in any suit or other legal proceedings. Section 50 (1) of the Act also inter alia provides that every notice issued by the Authority or its Officer under the Act shall be final and shall not be questioned in any suit or other legal proceedings. It is thus manifest that impugned show cause notice proposing action under Section 55 of the Act could not be challenged in Civil Court in view of categorical and mandatory provision of Section 50 of the Act, which specifically bars questioning of any notice issued under the Act by way of any suit or other legal proceedings and which also bars jurisdiction of Civil Court in respect of any such matter, cognizance of which can be taken and disposed of by any Authority under the Act. Consequently, the plaintiff could not challenge the impugned show cause notice in the Civil Court. Jurisdiction of Civil Court to adjudicate the suit is barred by Section 50 of the Act. Substantial question of law at Sr. No. 2, framed herein above, is answered accordingly. 15. As regards composition pleaded by the plaintiff, he has placed on record receipt Ex.P-6 dated 12.01.2000 depicting payment of Rs.2,700/- as compounding fee by the plaintiff to HUDA. The plaintiff has alleged that this amount included Rs.200/- as compounding fee for the disputed gate, whereas the remaining amount was for compounding of other violations. However, oral statement of the plaintiff to this effect cannot be accepted to hold that the disputed Southern gate had been compounded. Defendant no.2 specifically pleaded that plaintiff had compounded Western side gate, whereas the disputed Southern gate was opened after issuance of Completion Certificate. The plea of counsel for respondent no.1-plaintiff, that Western gate was sanctioned gate, and therefore, did not require composition, cannot be accepted because the said gate was not according to the parameters or standard size. However, said violation of the Western gate was compounded. The plaintiff stated in his cross-examination that he had given the break-up of compounding fee on the basis of photostat copy of the record, which he obtained from HUDA office. However, no such record has been produced in evidence to substantiate the plaintiff’s claim ini this regard. In other words, the plaintiff has withheld the best documentary evidence available to substantiate his version that the disputed gate had been compounded. Consequently, adverse presumption arises against the plaintiff. However, no such record has been produced in evidence to substantiate the plaintiff’s claim ini this regard. In other words, the plaintiff has withheld the best documentary evidence available to substantiate his version that the disputed gate had been compounded. Consequently, adverse presumption arises against the plaintiff. Learned lower appellate court observed that HUDA has not produced the record. If plaintiff was relying on any such record and if plaintiff had photocopy of the said record, which he obtained from HUDA office, nothing prevented the plaintiff from summoning any such record to substantiate his version. The plaintiff did not do so. On the other hand, HUDA could not produce any such record because according to the HUDA, the disputed Southern gate had not been compounded. Thus, on the basis of oral statement of plaintiff only, it cannot be said that the disputed Southern gate had been compounded, particularly because according to the plaintif’s testimony, documentary evidence to prove the said fact was availabl, but has not been produced. 16. It is mentioned in the impugned show cause notice Ex.P-9 that the disputed Southern gate is in contravention of zoning plan, whereas according to the building plan sanction order Ex.P-5, violation of zoning plan could not be compounded. Consequently, the disputed Southern gate could not be legally compounded. 17. For the reasons aforesaid, substantial questions of law at Sr. Nos.1 and 3, framed herein above, are answered against the plaintiff. 18. In view of my aforesaid discussion, application of appellant for additional evidence is not required to be accepted because the proposed additional evidence is not required for effective adjudication of the instant second appeal. The said application is accordingly dismissed. 19. For the reasons aforesaid, the instant second appeal is allowed. Judgments and decrees of the courts below are set aside and suit filed by the respondent no.1-plaintiff is dismissed. -----------0.K.B.0------------