Punjab-Haryana High Court
Multan Singh vs Faridabad Complex Administration on 3 December, 1999
Equivalent citations: (2000)125PLR446
Author: R.L. Anand
Bench: R.L. Anand
JUDGMENT R.L. Anand, J.
1. Unsuccessful plaintiff Multan Singh has filed the present appeal and it has been directed against the judgment and decree dated 18.3.1980, passed by the Court Additional District Judge, Gurgaon who affirmed the judgment and decree dated 6.12.1979 passed by the Sub Judge, 1st Class, Ballabgarh, who dismissed the suit of the plaintiff-appellant, for injunction as prayed for.
2. The brief facts of the case can be noticed in the following manner:-
3. The plaintiff filed a suit for permanent injunction against the Faridabad Complex Administration, on the allegations that he is owner in possession of three storey building situated in Faridabad old within the jurisdiction of Faridabad Complex Administration. He submitted the plan before the complex for its sanction to raise further construction in the house. The site plan was duly sanctioned on 16.7.1977. The plaintiff completed the construction in accordance with the sanctioned plan. The said construction was sanctioned by the officers/officials of the department from time to time. The plaintiff constructed a wall at point XY and of brick wall from points B to C. This construction was also sanctioned by the officers of the department but no objection was raised at the time of the constructions. Moreover, this construction was also in accordance with the sanctioned plan. The construction was completed upto October, 1977. However, the defendant issued a notice Under Section 235 of the Haryana Municipal Act (hereinafter referred to as the Act), asking the plaintiff to remove the alleged unauthorised construction in the shape of a brick Jali wall measuring 5ft x 5ft and 7 ft. x 3 ft. within six hours. According to the plaintiff, the said notice was received on 29.9.1978. The plaintiff alleged that he has not infringed any rule or regulation of the defendant. He has not made any encroachment on the land of the defendant nor he has contravened the sanctioned plan. Thus, the notice issued by the defendant Under Section 235 of the Act is illegal, unlawful and against the provisions of law.
4. With the above broad allegations, the plaintiff prayed for a decree for permanent injunction calling upon the defendant not to act upon the notice Under Section 235 of the Act.
5. The suit was contested by the defendant on the. ground that the plaintiff is estopped from filing the suit; that the suit has not been filed in a legal manner. The defendant could be sued through its Chief Administrator and not through its Administrator. On merits, the stand of the defendant was that the plan submitted by the plaintiff did not contain any brick wall of Jali and the construction raised by the plaintiff is in contravention of the sanctioned plan. The defendant also took the stand that the violation of the sanctioned plan was never approved by the defendant. No official of the defendant ever saw the on going construction. It was also averred by the defendant that before issuing the notice Under Section 235, notices Under Section 208 and 209 of the Act, were also served upon the plaintiff, which have not been challenged by the plaintiff, Shri R.P. Sharma, a neighbour of the plaintiff, made a complaint in writing about the unauthorised construction being raised by the plaintiff as the alleged construction was interfering in the privacy of the said person. The spot was inspected by the Building Inspector and notices were served upon the plaintiff as required under the law. The plaintiff was never allowed to raise brick Jali wall.
6. From the pleadings of the parties, the following issues were framed by the trial Court:-
"1. Whether the impugned constructions are in accordance with the sanction as alleged?
2. Whether the notice dated 24.7.1978 Under Section 235, Haryana Municipal Act is illegal, unlawful, void and against the principles of natural justices etc. as alleged?
3. Whether the Civil Court has got no jurisdiction to try the present suit?
4. Whether the plaintitt is estopped to tile the present suit By his act an conduct?
5. Relief."
7. Vide detailed and well reasoned judgment, the learned trial Court dismissed the suit vide judgment and decree dated 6.12.1979.
8. Aggrieved by the judgment and decree of the trial Court, the plaintiff filed an appeal before the Court of the Additional District Judge, Gurgaon, who vide the impugned judgment and decree dated 18.3.1980, and for the reasons given in paras 9 to 16 of the judgment, dismissed the appeal and aggrieved by the judgment and decree of the first appellate Court, the present appeal.
9. I have heard Mr. O.P. Goyal, Senior Advocate (Mr. Parmod Goyal, Advocate with him) for the appellant. Nobody has given the appearance on behalf of the. respondent and with the assistance of the counsel for the appellant, I have gone through the record of this case.
10. Three points were raised by the counsel for the appellant and I will deal with the three points one by one.
11. The first submission of the counsel for the appellant is that in the sanction plan, Ex.P-2, it was never stated by the defendant that the plaintiff will not be entitled to raise Jali wall and, in these circumstances, the plaintiff has not committed any illegality or contravention of the sanction plan, Ex.P-1. He further submitted that there is no rule or regulation of the Committee which compels the proposer of the plaint that he must raise a full fledged wall or that under no circumstances of Jali wall could be constructed by the owner of the house.
12. The argument, if examined in depth, is liable to be rejected. When a person submits a plan for raising a further construction, he gives the elevation of the proposed construction. He is further supposed to show the nature of the construction which he wants to raise. A perusal of the site plan, Ex.P-2 does not indicate that the plaintiff ever proposed that he would raise a Jali wall over the third floor of the house in question. In such a situation, if the plaintiff has not shown a Jali Wall at the time of submitting of the site plan, he cannot raise that type of construction. It is the case of the plaintiff himself that he raised a regular wall to some extent and, then, he also raised Jali wall. Jali wall cannot be termed as a regular wall. It at the most is a Jarokha through which fresh air can pass always. Moreover, the nature of the construction allegedly raised by the plaintiff would show that the house of other persons adjoining to the house of the plaintiff and if the plaintiff is allowed to raise a Jali wall, the privacy of others can also be infringed through the Jarokha of the said Jali Wall. Had the plaintiff shown his intention that he would raise a Jali wall, in such a situation, the defendant administration might not have sanctioned the site plan. By raising a Jali wall, the plaintiff has contravened the sanctioned plan and, in these circumstances, the first contention of the counsel for the appellant has to be rejected.
13. The second contention of the counsel for the appellant is that it was incumbent upon the defendant to place on record that notices Under Sections 208 and 209 of the Act and since those notices have not been placed or proved on the record, therefore, no action can be taken on the notice issued Under Section 235 of the Act.
14. The argument is, again, devoid of any merit. The plaintiff has given challenge to the notice Under Section 235 of the Act only and he has not even alleged in his plaint that he did not receive any notices Under Sections 208 or 209, of the Act, or that the defendant administration did not issue any notice under these provisions. There is a presumption with regard to the regular procedure adopted by the public authorities. Notice Under Section 235 of the Act is issued after the notices Under Sections 208 or 209 of the Act have been issued through which a person who has made an unauthorised construction is called upon to show cause why the said unauthorised construction should not be removed. If no reply is given to the said notice, then, directions are passed Under Section 235 of the Act for the removal of the said unauthonsed construction, bven otherwise, the evidence on the record is that the notices Under Section 208 and 209, of the Act were issued to the plaintiff. The plaintiff did not take any effort to rebut this part of the case. In these circumstances, it is not open to the plaintiff to say that the notices Under Sections 208 and 209 of the Act had not been issued to him. Even the frame of issue No. 2 would suggest that the plaintiff had given challenge to the notice dated 24.7,1978, which was issued Under Section 235 of the Act. Counsel for the plaintiff has not been able to show how this notice is illegal or it is not in conformity with the substantive provisions.
15. The third submission of the counsel for the appellant is that the notice Under Sections 208 and 209 of the Act or Under Section 235 of the Act could only be issued within six months from the date of the infringement. In this case, the site plan was sanctioned on 16.7.1977. The plaintiff completed the construction in October, 1977. The notice was issued on 24.8.1978. In this view of the matter, no action can be taken on the notice.
16. The argument is again, not acceptable to the Court. It is for the plaintiff to establish that he completed the construction in the month of October, 1977. On the contrary, it is proved on the record that Mr. Sharma, a neighbour of the plaintiff, made a complaint to the department about the unauthorised construction. The spot was inspected by the Building Inspector who noticed that the construction was going on. The site was visited by the officer on 25.6.1978. In this manner, it can be safely concluded that even upto June, 1978, the unauthorised construction was going on. The Building Inspector gave the report against the plaintiff. Consequently, the notice was issued Under Section 235 of the Act on 24.8.1978. There is no corroborative evidence to the submission of the plaintiff that the unauthorised construction was completed somewhere in October, 1977. The plaintiff could examine a neighbour, if any, to prove his assertion. Even the appellant has not stated a word in this regard. He submitted a reply Ex.P-3, and in that reply also, there is no assertion on behalf of the plaintiff that the construction was completed somewhere in October, 1977. In view of the documentary evidence led by the defendant that the unauthorised construction was going on even in June, 1979 it cannot be expected that the unauthorised construction had already been completed in October, 1977.
17. No other point was urged before me. 18. Resultantly, I do not see any merit in this appeal and the same is herebey dismissed with no order as to costs.