Punjab-Haryana High Court
Satya Dev And Others vs R. K. Khullar And Others on 4 October, 2013
Author: L. N. Mittal
Bench: L. N. Mittal
C. R. No. 7510 of 2009 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.
Sr. No. 203
Case No. : C. R. No. 7510 of 2009
Date of Decision : Oct. 04, 2013
Satya Dev and others .... Petitioners
Vs.
R. K. Khullar and others .... Respondents
CORAM : HON'BLE MR. JUSTICE L. N. MITTAL
* * *
Present : Mr. Santosh Sharma, Advocate
for the petitioners.
Mr. Sudhir Hooda, Advocate
for respondents no. 1, 3 and 4.
Mr. Munish Sharma, Advocate
for respondents no. 2 and 5 to 8.
* * *
L. N. MITTAL, J. (Oral) :
Execution petition was filed by legal representatives of Ram Karan - original decree-holder (DH) (since deceased). Phoolwati - widow of Ram Karan has since died and is represented by the petitioners, who are also her legal heirs, besides being legal heirs of deceased Ram Karan. Suit filed by Ram Karan against The Faridabad Complex Administration (now, Monika 2013.10.05 12:36 I attest to the accuracy and integrity of this document High Court Chandigarh C. R. No. 7510 of 2009 2 Municipal Corporation, Faridabad - in short, MCF) was decreed by the trial court, vide judgment and decree dated 08.05.1986 (Annexure P-1) restraining the defendant from interfering in possession of the plaintiff over the suit property and from dispossessing him forcibly from the same. The suit property was described as house-cum-nohra, shown by letters ABCD in the site plan (Annexure P-2) attached to the plaint. First appeal preferred by defendant was dismissed by the lower appellate court vide judgment and decree dated 29.09.1986 (Annexures P-3 and P-4).
In execution petition, the petitioners alleged that in violation of the injunction decree, respondents no. 1 to 4 i.e. Commissioner and Joint Commissioner and Municipal Corporation through its Commissioner and Joint Commissioner had demolished the suit property of the petitioners. The petitioners alleged that by the demolition, they have suffered loss of Rs.5 lacs.
Respondents no. 1 to 4/judgment-debtors (JDs) controverted the averments of the petitioners and pleaded that only illegal construction made by the petitioners by making encroachment on land of MCF was demolished. It was pleaded that prior to demolition, show cause notice had also been issued to the petitioners. There was also order by Executive Magistrate under Section 133 of the Code of Criminal Procedure (in short - Cr.P.C.) for demolition of the illegal construction. It was thus alleged that Monika 2013.10.05 12:36 I attest to the accuracy and integrity of this document High Court Chandigarh C. R. No. 7510 of 2009 3 there was no violation of the decree.
Learned Executing Court, vide impugned judgment dated 18.11.2009 (Annexure P-12), has dismissed the execution petition filed by the petitioners, who have, therefore, filed this revision petition under Article 227 of the Constitution of India assailing the said judgment.
Respondents no. 5 to 8, allegedly involved in the demolition of the suit property, have also been added as respondents to the instant revision petition vide order dated 23.07.2010.
I have heard counsel for the parties and perused the case file. Counsel for the petitioners referred to orders dated 17.12.2009, 23.07.2010 and 13.12.2012 passed by this Court in the instant revision petition, which are reproduced as under :-
"Learned counsel for the petitioners submitted that vide judgment of the Civil Court dated May 8, 1986 a decree for permanent injunction was passed in favour of predecessors- in-interest of the petitioners. In appeal the same was confirmed by the learned Lower Appellate Court on September 29, 1986. Thereafter in proceedings initiated by a neighbour under Section 133 Cr.P.C. it was found that the Monika 2013.10.05 12:36 I attest to the accuracy and integrity of this document High Court Chandigarh C. R. No. 7510 of 2009 4 predecessors-in-interest of the petitioners had encroached upon about 1 marla of adjoining land. Though the stand of the petitioners is that they had demolished the construction on the alleged encroached portion, however, still lateron the entire construction even on the portion of land for which a decree for permanent injunction was passed in favour of the predecessors-in-interest of the petitioners, had been demolished which clearly violates the terms of decree.
Notice of motion for 11.2.2010.
In the meantime, the status-quo regarding the property in question, regarding which the decree was passed in favour of the predecessors-in-interest of the petitioners, shall be maintained."
xx xx xx xx "Names of the officers who were responsible for demolishing the house of the petitioner have been placed on record.
Prima facie the Court is of the Monika 2013.10.05 12:36 I attest to the accuracy and integrity of this document High Court Chandigarh C. R. No. 7510 of 2009 5 opinion that the demolition had been carried out illegally and there is no justification for the same because they were aware of the controversy and also the fact that the disputed portion had been demolished by the petitioner himself which fact was established on the basis of demarcation report. There seems to be no justification for the demolition of the house of the petitioner.
In view of the consistent orders in favour of petitioner, I am of the considered opinion that the persons whose names have been mentioned in C. M. No. 17942-CII of 2010, are the persons responsible for carrying out such an act and that they have acted contumaciously.
Let notice be issued to said persons for 17.8.2010 to explain their conduct."
xx xx xx xx "There is a specific mention in the notice dated 9.7.2007 Annexure R5/3, that the petitioner had encroached upon a tin shed 10' x 20' (Approximately) and tin shed 10' x 12' Monika 2013.10.05 12:36 I attest to the accuracy and integrity of this document High Court Chandigarh C. R. No. 7510 of 2009 6 (Approximately), thus, the respondent could not go against their own notice Annexure R5/3. Though, the learned counsel for the petitioner has submitted that the petitioner is owner of whole of the house and no such encroachment has been made by him as he has a decree in his favour, yet for the sake of arguments, he has alleged that even if notice Annexure R5/3 is accepted, then the respondent could not demolish the construction while exceeding the area as mentioned in the notice itself. No evidence contrary to Ex.P22 was led which may indicate that the demolished house was less than the value of Rs.5 lacs.
The learned counsel for the respondent has no answer, still he seeks time to answer the aforesaid queries.
Adjourned to 19.12.2012.
To be taken up immediately after urgent matters."
On the other hand, counsel for respondents contended that in the garb injunction decree, the petitioners had encroached upon municipal Monika 2013.10.05 12:36 I attest to the accuracy and integrity of this document High Court Chandigarh C. R. No. 7510 of 2009 7 land beyond the suit property and only the said encroachment made by the petitioners beyond the suit property was removed. Reference was also made to order regarding removal of the said encroachment passed under Section 133 Cr.P.C. as well as to notice issued to the petitioners prior to the removal of the said encroachments.
I have carefully considered the rival contentions. Even counsel for the petitioners raised `no objection' to the demolition of the alleged encroachment. However, the said encroachment, as per own Show Cause Notice issued by the respondents was to the extent of a tin shed measuring 10' x 20' approx. and another tin shed measuring 10' x 12' approx. i.e. one marla land. Order under Section 133 Cr.P.C. also related to about one marla land. However, case of the petitioners is that the respondents also demolished part of the suit property. This fact is corroborated by report of Local Commissioner, who has categorically reported that part of the suit property, as depicted by him in the site plan, was also demolished. Site plan prepared by Local Commissioner completely tallies with site plan (Annexure P-2) attached with the plaint, depicting the suit property, regarding which the suit was decreed. The petitioners have also led other evidence in this regard.
It is thus manifest that the respondents demolished not only the alleged encroachment measuring about one marla made by the petitioners, Monika 2013.10.05 12:36 I attest to the accuracy and integrity of this document High Court Chandigarh C. R. No. 7510 of 2009 8 but also demolished part of the suit property in violation of the injunction decree passed in favour of petitioners' predecessor. Consequently, respondents are liable to compensate the petitioners for the same. Finding of the Executing Court to the contrary is illegal and is based on misreading and misappreciation of evidence on record and also suffers from jurisdictional error.
As regards quantum of compensation, the petitioners have produced report of Valuer, quantifying the loss at Rs. 3.88 lacs. However, the said report, on perusal, appears to be for exaggerated amount. Since there is no material to the contrary to assess the quantum of loss, thumb rule has to be applied to some extent. In this context, it may be added that valuation report also perhaps includes some portion of the sheds, which had been made by way of encroachment on municipal land. Consequently, necessary deduction has to be allowed for the same.
Keeping in view all the circumstances and applying thumb rule to some extent, the quantum of loss suffered by the petitioners is assessed at Rs.2 lacs.
Resultantly, the instant revision petition is allowed. Impugned judgment (Annexure P-12) passed by the Executing Court is set aside. Execution petition filed by the petitioners is allowed by directing the respondents to pay Rs. 2 lacs to the petitioners as compensation. Monika 2013.10.05 12:36 I attest to the accuracy and integrity of this document High Court Chandigarh C. R. No. 7510 of 2009 9
Parties are directed to appear before the Executing Court on 06.11.2013.
The compensation amount shall be positively paid by the respondents within three months thereafter.
Oct. 04, 2013 ( L. N. MITTAL )
monika JUDGE
Monika
2013.10.05 12:36
I attest to the accuracy and
integrity of this document
High Court Chandigarh