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2014 DIGILAW 508 (PNJ)

Improvement Trust, Yamuna Nagar v. Santosh Arora

2014-03-11

PARAMJEET SINGH

body2014
JUDGMENT PARAMJEET SINGH, J. Having heard learned counsel for the parties and for the reasons stated in the application, the same is allowed, as prayed for. Delay of 16 days in filing the instant appeal is condoned. This regular second appeal is directed against the judgment and decree dated 16.09.2010 passed by learned Civil Judge (Junior Division), Yamuna Nagar at Jagadhari whereby suit for permanent injunction filed by respondent-plaintiff has been decreed and against the judgment and decree dated 17.01.2011 passed by learned Additional District Judge, Yamuna Nagar at Jagadhari whereby appeal preferred by appellant-defendant no. 3 has been dismissed. For convenience sake, reference to parties is being made as per their status in the suit. The detailed facts are already recapitulated in the judgments of the courts below and are not required to be reproduced. However, the brief facts, as pleaded in plaint are to the effect that the plaintiff filed suit for permanent injunction restraining the defendants from interfering in any manner whatsoever or demolishing any portion of bathroom/toilet forming part of the house in dispute shown as yellow and marked with letters ABCD in the site plan attached with the plaint, on the basis of notice dated 15.09.2003 issued under Section 208 of the Haryana Municipal Act, 1973. It was pleaded that the plaintiff had raised construction of the house in dispute in the year 1977 and since then he has been owner in possession thereof. There is a bathroom/toilet shown yellow in colour and marked with letters ABCD in the site plan attached with the plaint. The plaintiff had started raising further construction/repair in the house as per the plan sanctioned by defendant no. 3 vide order No. Y17032971 dated 28.04.2003. However, defendant no. 3 had issued a notice dated 15.09.2003 to the plaintiff under Section 208 of the Haryana Municipal Act, 1973 alleging that the plaintiff had raised certain construction against the sanctioned site plan. It was further pleaded that under the garb of said notice, defendants intended to demolish the bathroom marked with letters ABCD, mentioned above, illegally and forcibly for which they have no right. Hence, suit was filed. Defendant no. 3 resisted the suit and filed written statement. It has been pleaded that construction of toilet and bathroom in question is unauthorized and illegal and the same is liable to be demolished. Hence, suit was filed. Defendant no. 3 resisted the suit and filed written statement. It has been pleaded that construction of toilet and bathroom in question is unauthorized and illegal and the same is liable to be demolished. The plaintiff has not raised the construction as per the sanctioned site plan and exceeded the construction beyond the permissible area which is apparent at the spot. The notice dated 15.09.2003 issued to the plaintiff is legal and valid. No requisite notice was issued to the answering defendant prior to filing of the suit. Other averments in plaint were denied. None had appeared on behalf of defendants no. 1 and 2 and, therefore, proceeded against ex parte. On the basis of pleadings of parties, the Court of first instance framed following issues:- 1. Whether the plaintiff is entitled to permanent injunction as prayed for? OPP 2. Whether the plaintiff has not come to the court with clean hands? OPD 3. Whether the plaintiff is estopped from filing the present suit by his own act and conduct? OPD 4. Whether the defendants are entitled to special costs? OPD 5. Relief. After appreciating the evidence, the Court of first instance decreed the suit restraining defendants from interfering or demolishing any portion of bathroom/toilet forming part and parcel of house no. 122, Shastri Colony Yamuna Nagar on the basis of notice dated 15.09.2003. Feeling aggrieved, defendant no. 3 preferred an appeal which has been dismissed by the lower Appellate Court. Hence, this regular second appeal. I have heard learned counsel for the appellant and perused the record. Learned counsel for the appellant has referred to following substantial questions of law suggested in the grounds of appeal for consideration by this Court:- (i) Whether the construction raised by the present respondent no. 1 plaintiff without getting sanctioned site plan from any competent authority is illegal, in violation of rule sand by law so committee and liable to be demolished? (ii) Whether respondent no. 1 plaintiff is entitled for permanent injunction without getting permission of construction from any competent authority? Learned counsel for the appellant has contended that land has been encroached upon by the plaintiff and defendant no. 3 has a power to remove such encroachment. The notice under Section 208 of Haryana Municipal Act, 1973 is legal and valid. The findings recorded by both the courts below are based on surmises and conjectures. Learned counsel for the appellant has contended that land has been encroached upon by the plaintiff and defendant no. 3 has a power to remove such encroachment. The notice under Section 208 of Haryana Municipal Act, 1973 is legal and valid. The findings recorded by both the courts below are based on surmises and conjectures. I have considered the contentions of learned counsel for the appellant. Perusal of record shows that there is categoric evidence in the shape of statement of Gulshan Kumar, Assistant of Improvement Trust, Yamuna Nagar, recorded in case titled Manohar vs. State of Haryana wherein it has been mentioned that construction of the alleged bathroom was raised in the year 1978. It has not been mentioned in the notice as to which part and how much area is to be demolished. Both the courts below have recorded concurrent finding that construction was made in the year 1978 and notice was issued on 15.09.2003. A notice under Section 208 of Haryana Municipal Act, 1973 can only be issued within six months from the completion of building. Both the Courts below have relied upon Chandu Ram vs. M.C. Hisar, 2008 (1) PLJ 796 wherein the construction of the house was raised in 1974 and it was held that Municipal Committee had no jurisdiction to issue notice under Section 208 of Haryana Municipal Act, 1973 in 1980. Similar view has been taken in Harish Kumar vs. M.C. Gharaunda, 2003 (4) RCR 174 and Amar Singh vs. M.C. Hisar, 1984 CLJ 27. Concurrent finding of fact has been recorded by both the courts below that said notice sent to the plaintiff was not only time barred but also vague, as construction was raised in the year 1978 and notice was issued after 25 years of the alleged construction without disclosing as to which and how much part of construction was to be demolished. Such a construction cannot be demolished specifically when the notice is vague and construction is old. Learned counsel for the appellant could not show that the said findings are perverse or illegal or based on misreading, non-reading or mis-appreciation of the material evidence on record. Consequently, concurrent findings of fact recorded by both the courts below do not warrant interference in regular second appeal. No question of law, much-less substantial question of law, as alleged, arises for adjudication in this second appeal. Consequently, concurrent findings of fact recorded by both the courts below do not warrant interference in regular second appeal. No question of law, much-less substantial question of law, as alleged, arises for adjudication in this second appeal. No other point has been urged. Dismissed. No order as to costs.