Punjab-Haryana High Court
Municipal Council vs Mahabir Parshad And Ors. on 4 February, 1997
Equivalent citations: (1997)117PLR767
JUDGMENT V.K. Jhanji, J.
1. This is defendant's second appeal directed against the judgment and decree of the Additional District Judge, Narnaul, whereby appeal filed by the plaintiffs has been allowed and in consequence thereof, their suit has been decreed.
2. In brief, the facts are that plaintiffs (respondents herein) filed suit for permanent injunction against the Municipal Committee (appellant herein) to the effect that they are owners in possession of the plot in dispute. They also sought injunction for restraining the Municipal Committee from demolishing the construction raised by them. Notice dated 31.12.1984 served upon them by the Municipal Committee too was challenged being illegal. On notice of the suit, the Municipal Committee contested the suit and contended that the land in dispute is part of Nazul land which vests in the Municipal Committee. It further contended that it 'received complaints from the inhabitants of the mohalla that the residents that the residents are encroaching upon the land of the Committee by raising construction and so, on inspection of the site, notice dated 31.12.1994 for removal of the illegal construction raised by the plaintiffs, was issued. It was also contended that the suit has been filed by the plaintiffs only to stall the action sought to be taken by the Committee on the notice. On the pleadings of the parties, the following issues were framed by the trial Court;-
1. Whether the plaintiffs are owner in possession of the suit property as detailed in the head note of the plaint? OPD.
2. Whether the suit in the present form is not maintainable?. OPD
3. Whether the suit is bad for not giving any notice under the Municipal Act, as alleged? OPD.
4. Whether the defendant is entitled to special cost Under Section 35A CPC? OPD.
5. Relief.
Trial Court held that the plaintiffs have not led any evidence in regard to ownership of the property. It also held that the land in dispute is part of Nazul land and the same is owned by the Municipal Committee. Suit thus, was dismissed. On appeal by the plaintiffs, the learned Additional District Judge affirmed the finding of the trial Court in regard to the plaintiffs beign not the owners of the land in dispute. However, at the same time, it was held that the Committee has failed to prove the land is owned by it. On finding that the plaintiffs are in possession of the land in dispute, the appeal was allowed and the Committee was restrained from interfering in the possession of the plaintiffs and also from demolishing the construction raised on the site in dispute. Hence, the second appeal.
3. After hearing the learned counsel for the parties and going through the record, I am of the view that the judgment and decree under appeal is not sustainable. Trial Court as well as the first appellant Court have failed to comprehend the real cause on the basis of which plaintiffs had filed suit. Suit came to be filed soon after the Municipal Committee had served notice upon them not to raise illegal construction thereon- The notice was issued to the plaintiffs only after complaints were received in regard to encroachment and raising of illegal construction by them. On inspection of the site, it was found that illegal construction was being raised. Notice thus, was issued Under Sections 208, 200 and 181 of the Haryana Municipal Act, 1973. Under these sections, it is the statutory obligation of the Committee to prevent persons from encroaching upon the municipal land and raising illegal construction thereon without the sanction of the Committee. The Committee on finding that encroachment has been made or illegal construction is being raised, is empowered to serve notice, calling upon such persons to remove encroachment or illegal construction on their failure to do so, the Committee is empowered to take action, impose penalty and punishment. To succeed in the suit, it was incumbent upon the plaintiffs to prove their allegation in regard to their ownership of the site in dispute, besides the plea that notice served upon them is illegal. Further in order to show that the notice is invalid, plaintiffs were required to prove that the construction was being raised by them after obtaining sanction from the Municipal Committee. In the instant case neither the plaintiffs have been able to prove that they are owners of the site nor that the construction had been raised by them after obtaining proper sanction from the Municipal Committee. The plaintiffs having failed to prove the grounds on the basis of which injunction was sought by them, to my mind, are a not entitled to the said relief.
4. Consequently, the appeal is allowed and judgment and decree under appeal set aside. In consequence thereof, suit of the plaintiffs/shall stand dismissed. With no order as to costs.