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2012 DIGILAW 228 (PNJ)

Hitender Dawar v. Municipal Corporation, Gurgaon

2012-02-08

G.S.SANDHAWALIA

body2012
JUDGMENT Mr. G.S. Sandhawalia, J. (Oral) - C.M. No. 4522-C of 2011 Application filed for exemption from filing certified copy of judgment and decree dated 15.03.2010 passed by Additional Civil Judge (Jr. Divn.), Gurgaon is allowed, in view of the averments made in the application, which are duly supported by an affidavit. C.M. No. 4523-C of 2011 Application filed for condonation of delay of 19 days in refiling the appeal is allowed, in view of the averments made in the application, which are duly supported by an affidavit. Delay condoned. C.M. No. 4524-C of 2011 in/and RSA No. 1625 of 2011 1. The present regular second appeal has been filed by the plaintiff, who is aggrieved against the concurrent findings of the Courts below, whereby his suit for permanent injunction has been dismissed. The dispute pertains to building bearing municipal number 351/8 situated at New Colony More, Gurgaon. 2. The pleadings in the plaint were that vide order dated 27.12.1995, the Executive Officer had sanctioned the raising of the construction and the construction was completed in the year 1997. The officials of the defendant had visited the spot in the year 1997 and reported that there was excess coverage by the plaintiff and a revised site plan by the defendants in the year 1997 was approved on composition basis vide their resolution no. 19 (3) dated 15.09.1999 and accordingly the site plan was sanctioned. However, the Deputy Commissioner suspended the resolution vide notice dated 17.12.1999 and after that the composition fee was not accepted and notice dated 13.04.2002 was served upon the plaintiff and the defendant threatened to demolish the construction. Accordingly, it was averred that in view of Section 208 of the Haryana Municipal Act, 1973 (for short ‘The Act’), no action can be taken since the period of six months had expired before the issuance of the said notice and the threat of demolition was hanging upon the plaintiff and hence, the suit. 3. Written statement was filed by the defendant-Municipal Committee, Gurgaon wherein, various preliminary objections were taken and it was mentioned that unauthorized construction was being raised in violation of the sanctioned building plan and was noticed by Building Inspector on 02.04.1996 and on his report, notices were served upon the plaintiff under Sections 208/209 of the Act and the plaintiff was asked to stop the unauthorized construction and demolish the construction made. The fact of submitting revised building plan on 27.08.1996 was admitted which was sanctioned/compounded vide resolution no. 19(3) dated 15.09.1999 subject to the approval of the Deputy Commissioner but he, in exercise of his power under Section 246 of the Act, suspended the resolution which was confirmed by the Commissioner, Gurgaon Division on 10.12.1999. Accordingly, the memo dated 22.12.2000 was issued to demolish the unauthorized construction and the compounding fee was not received and thus building was not regulated. Accordingly, it was submitted that the plaintiff had constructed the building in violation of the sanctioned building plan despite issuance of notice to them and they have not removed the unauthorized construction. 4. On the basis of the pleadings, the trial Court framed the following issues:- “1. Whether the plaintiff is entitled to the relief of permanent injunction as prayed for? OPP 2. Whether the suit is bad for non joinder and misjoinder of necessary parties? OPD 3. Whether the plaintiff has no cause of action to file the present suit? OPD 4. Whether the plaintiff has locus standi to file the present suit? OPD 5. Whether the plaintiff is estopped from filing the present suit by his own act and conduct etc.? OPD 6. Whether the suit is bad for want of notice under Section 52 of the Haryana Municipal Act, 1973? OPD 7. Whether the suit is barred under Section 41 of Specific Relief Act? OPD 8. Whether the suit has not been properly valued for the purposes of court fees and jurisdiction? OPD 9. Whether the plaintiff has not come to the court with clean hands if so its effect? OPD 10. Relief.” 5. Both the parties examined one witness each and the trial Court, after taking into consideration the evidence on record, came to the conclusion that the plaintiff had purchased the property by way of sale deed Ex. P-1 and was challenging the notice dated 13.04.2002 Ex.P-6. Accordingly, it was found that the plaintiff had been found raising illegal construction contrary to the sanctioned plan on 02.04.1996 by the Inspector of the Committee and notice Ex. P-9 was served upon him and, therefore, compliance of Section 208 of the Act was made well within the time limit. P-1 and was challenging the notice dated 13.04.2002 Ex.P-6. Accordingly, it was found that the plaintiff had been found raising illegal construction contrary to the sanctioned plan on 02.04.1996 by the Inspector of the Committee and notice Ex. P-9 was served upon him and, therefore, compliance of Section 208 of the Act was made well within the time limit. The revised plan had been submitted and had been accepted vide resolution dated 15.09.1999 subject to the approval of the Deputy Commissioner but the same had not been approved and had been suspended. The said suspension was upheld by the Commissioner, Gurgaon Division. Accordingly, it was held that the defendant was not estopped under the provisions of the Act from proceeding against the plaintiff and the building was commercial in nature and mere payment of house tax subsequently could not be treated as regularization of the illegal construction and accordingly, the suit was dismissed on 15.03.2010 by the Civil Judge (Junior Division), Gurgaon. 6. That an appeal was preferred before the Lower Appellate Court, which has also been dismissed on 05.08.2010 by the Additional District Judge, Gurgaon and resultantly, the present regular second appeal has been filed. 7. The counsel for the appellant has contended that the defendant had been charging house tax for the building in question and, therefore, the principle of estoppel would apply. It is also contended that the action to demolish taken after the year 2000 was barred by limitation. 8. The said submission of the counsel for the appellant cannot be accepted. Admittedly, it is matter of record that when construction was carried on by the predecessor in interest of the plaintiff in view of the sanctioned site plan, initially they had started constructing over and above the permissible area. Accordingly, after site inspection, notice dated 02.04.1996 had been served upon the plaintiff/predecessor in interest for violation and they had submitted a revised building plan. The revised building plan was subject to the acceptance of composition fees vide resolution of the Municipal Council. But the said resolution was suspended by the Deputy Commissioner and upheld by the Commissioner. Thus, the construction which had been raised upon the commercial property in excess of the sanctioned plan initially granted on 27.12.1995 was illegal. The revised building plan was subject to the acceptance of composition fees vide resolution of the Municipal Council. But the said resolution was suspended by the Deputy Commissioner and upheld by the Commissioner. Thus, the construction which had been raised upon the commercial property in excess of the sanctioned plan initially granted on 27.12.1995 was illegal. The Lower Appellate Court has noticed the facts in detail and also taken into account the fact that other persons of the area who had challenged such notices before this Court in Civil Writ Petition Nos. 1030 and 1348 of 2000 had been granted benefit of hearing and passing of a speaking order by the Deputy Commissioner vide order dated 30.05.2000. In pursuance of the directions of this Court, the Deputy Commissioner had constituted a Committee for compounding of such cases and framed three criterias wherein, penalty could be imposed subject to the permissible limit of 10% above the allowable FAR. The Lower Appellate Court after taking into account the facts of the case, has noticed that in the case of the appellant, compounding could be permitted to the extent of 210% but the area of the appellant is 308% and thus is beyond the permissible limit for compounding. The Lower Appellate Court has also taken into consideration that even the decision of the Committee had been set aside by the Government of Haryana in exercise of its power under Section 205 of the Act and, therefore, no composition of the unauthorized construction above the FAR allowed is permissible. 9. Both the Courts below have concurrently come to a finding that the owner/occupier of the property had been constructing initially beyond the sanctioned limit and notice had been issued within the prescribed period on 02.04.1996. Thus, the submission of the counsel that the action in the year 2000 is beyond the time period could not be taken and the construction would be deemed to be regularized, is without any merit. Similarly also, if the house tax had been charged for the building i.e. for the purposes of providing services and for the taxation purpose and has nothing to do with the legality of the building which had to be raised as per the sanctioned plans and thus there can be no estoppel against the Statute. 10. Accordingly, no fault can be found with the judgments of the Courts below. 10. Accordingly, no fault can be found with the judgments of the Courts below. Thus the present regular second appeal is dismissed in limine in the absence of any substantial question of law arising for consideration and the judgments and decrees of the Courts below are hereby upheld.