Punjab-Haryana High Court
Haryana Urban Development Authority ... vs Escon Builders Limited on 5 October, 2013
Author: Rakesh Kumar Garg
Bench: Rakesh Kumar Garg
RSA No.4003 of 2013 (O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
RSA No.4003 of 2013 (O&M)
Date of decision: 5.10.2013
Haryana Urban Development Authority and another
...Appellants
Versus
Escon Builders Limited
...Respondent
CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR GARG
Present: Mr. Ajay Kumar Kansal, Advocate for the appellants.
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Rakesh Kumar Garg, J.(ORAL)
CM No.10780-C of 2013 For the reasons mentioned in the application, which are supported by an affidavit, delay of 3 days in filing of the appeal is condoned.
CM stands disposed of.
RSA No.4003 of 2013 (O&M) This is defendants' second appeal challenging the judgment and decree dated 9.3.2011 of the trial Court whereby suit of the plaintiff- respondent for declaration to the effect that the action initiated by defendant- HUDA under Section 17 of the HUDA Act, 1977 (for short 'the Act') in respect of the demised premises was without jurisdiction, with a further prayer for permanent injunction restraining the appellants from resuming the aforesaid Mohan Brij 2013.10.09 16:10 I attest to the accuracy and integrity of this document Chandigarh RSA No.4003 of 2013 (O&M) -2- show-room by invoking the provisions of Section 17 of the Act, has been decreed.
Challenging the aforesaid judgment and decree of the trial Court, the appellants had filed an appeal, which was also dismissed vide judgment and decree dated 9.5.2013.
Briefly stated, it is the case of the plaintiff-respondent that he is the owner in possession of the SCO No.47, Sector-11, Panchkula. There was some temporary construction on the rear side of the show-room which was raised in the year 2002, for which no objection was raised by HUDA. However, a show-cause notice dated 18.7.2005 (Ex.PW1/5) was issued. According to the plaintiff-respondent, the aforesaid construction was not in violation of any building plan and the same could have been compounded but the Estate Officer, HUDA straightway initiated the proceedings of resumption of show-room. It was further stated that the only recourse to the authorities at the most was to initiate action under Section 55 of the Act.
The suit was contested by the appellants alleging in the written statement that the plaintiff-respondent had constructed a mini-market in the rear portion of the show-room which was in violation of the sanctioned building plan as well as the zoning plan and therefore notice under Section 17(3) of the HUDA Act was issued. It was further submitted that violation was non-compoundable and rightly deserved initiation of proceedings for resumption under the Act. The appellants have further raised objection as to the jurisdiction of the Civil Court submitting that under Section 50 of the HUDA Act, 1977 jurisdiction of the Civil Court is barred.
On the basis of pleadings of the parties, following issues Mohan Brij 2013.10.09 16:10 I attest to the accuracy and integrity of this document Chandigarh RSA No.4003 of 2013 (O&M) -3- were framed:-
1. Whether the plaintiff is entitled for the decree of declaration and permanent injunction as prayed for? OPP
2. Whether the suit of the plaintiff is not maintainable? OPD.
3. Whether this Court has no jurisdiction to try the present suit?
OPD.
4. Relief.
Thereafter, parties led evidence in support of their respective cases.
At this stage, it may be noticed that the appellants examined one JE, namely, Jarnail Singh in support of their case. However, the aforesaid JE in categoric terms admitted that there was no permanent construction raised by the respondent as alleged in the show-cause notice and the construction raised by the plaintiff-respondent at the spot was of temporary nature.
The trial Court after considering the evidence on record decreed the suit further holding that since the action of the appellants was in violation of the principles of natural justice and the statutory provisions and was void, ab initio and therefore, the Civil Court has the jurisdiction.
Appeal filed by the appellants/defendants was also dismissed.
Aggrieved from the aforesaid judgments and decrees, the appellants have filed the instant appeal challenging the impugned judgments and decrees submitting that the following substantial questions of law arise in this appeal for consideration:-
Mohan Brij2013.10.09 16:10 I attest to the accuracy and integrity of this document Chandigarh RSA No.4003 of 2013 (O&M) -4-
(i) Whether the Civil Court has jurisdiction to set-aside the notices issued under Section 17 of HUDA, Act, keeping in view the provisions of appeal under the Act and specific bar of jurisdiction of Civil Court under Section 50 of the Act?
(ii) Whether a pre-mature suit against a proposed action is maintainable in the eyes of law?
(iii) Whether the action of authority in initiating action under Section 17 of the HUDA, Act is legal and justified?
(iv) Whether Section 55 of HUDA Act lays for all exhaustive procedure to the followed in case of violation of rule and regulations framed under HUDA Act, 1977?
(v) Whether a wrongful admission by a witness regarding something not permissible under the Rules is conclusive so as to entitle the other party to get a decree in his favour especially when there is clear admission of violation by the plaintiff/respondent?
(vi) Whether the judgment and decree passed by Ld. Courts below are illegal, perverse and as such are liable to be set-aside?
In support of the case, learned counsel for the appellants has vehemently argued that Civil Court has no jurisdiction in the instant case in view of the provisions of Section 50 of HUDA Act, 1977 which specifically bars the Civil Court jurisdiction against an action initiated under the provisions of the Act. However, counsel for the appellants could not dispute the law as Mohan Brij 2013.10.09 16:10 I attest to the accuracy and integrity of this document Chandigarh RSA No.4003 of 2013 (O&M) -5- settled by the Full Bench of this Court in case of State of Haryana Versus Vinod Kumar, AIR 1986, Punjab & Haryana 407 that if the action of the authorities is void ab initio, the Civil Court jurisdiction cannot be barred.
Faced with this situation, learned counsel for the appellants has further made an attempt to raise argument that the construction made by the respondent was in violation of the building plan etc. and the notice was rightly issued. The argument is noticed only to be rejected as the only witness produced by the appellants themselves has not supported their case and categoric finding has been recorded that the construction raised by the plaintiff- respondent is of temporary nature.
No other point was raised.
In view of the aforesaid findings, no substantial question of law, as argued, arises in this appeal.
Dismissed.
5.10.2013 (RAKESH KUMAR GARG)
Brij JUDGE
Mohan Brij
2013.10.09 16:10
I attest to the accuracy and
integrity of this document
Chandigarh