Himachal Pradesh High Court
___________________________________________________________ vs Manmohan Singh @ Madan Mohan Singh on 17 April, 2017
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 58 of 2006 .
Date of Decision: 17th April, 2017 ___________________________________________________________ Himachal Pradesh Housing and Urban Development Authority ........Appellant.
Versus Manmohan Singh @ Madan Mohan Singh .... Respondent. Coram:
The Hon'ble Mr. Justice Sandeep Sharma, Judge. Whether approved for reporting?1 Yes. For the Appellant : Mr. C.N. Singh, Advocate.
For the Respondent :Mr. N.K.Thakur, Senior Advocate, with Ms. Jamuna, Advocate.
Sandeep Sharma, Judge Instant Regular Second Appeal filed under Section 100 of the Code of Civil Procedure, is directed against the judgment and decree dated 26.10.2005, passed by learned Additional District Judge, Una District Una, H.P., in Civil Appeal No. 48 of 2002, affirming the judgment and decree dated 1.4.2002, passed by the learned Sub- Judge, 1st Class, Court No.1, Una, District Una, H.P., in civil Suit No.262 of Whether reporters of the local papers may be allowed to see the judgment?::: Downloaded on - 21/04/2017 23:57:25 :::HCHP
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1993, whereby suit for mandatory injunction having been filed by the appellant/plaintiff came to be .
dismissed.
2. Briefly stated facts of the case, as emerged from the record are that appellant/plaintiff (hereinafter referred to as the plaintiff) filed suit for mandatory injunction by demolishing the structure allegedly raised by the respondent/defendant (hereinafter referred to as the defendant) on HIG Plot No.296, situated in Rakkar Colony, Una, Tehsil and District Una, H.P. Plaintiff alleged in the plaint that on the application of the defendant, plaintiff-board allotted a plot No.HIG-296 to the defendant on 6.1.1986 on Hire Purchase Tenancy Agreement (hereinafter referred to as 'HPTA') basis. According to plaintiff, after execution of 'HPTA' in favour of the plaintiff on 13.5.1986, possession of the plot was delivered to the defendant and as per the terms and conditions of the HPTA, defendant was required to raise construction after approval of the proposed construction plan from the plaintiff-board and in case of any ::: Downloaded on - 21/04/2017 23:57:25 :::HCHP ...3...
deviation, plaintiff-board was authorized to get it rectified or demolished. Plaintiff further alleged that in .
the month of December, 1990, the field staff of the plaintiff board found that some unauthorized construction was being carried out in the plot allotted to the defendant, accordingly plaintiff-board through its Executive Engineer, served notice, dated 18.12.1990 on the defendant advising therein to stop the illegal and unauthorized construction.
3. Plaintiff further claimed that the Executive Engineer, H.P. Housing Board also issued directions to the defendant to stop the illegal and unauthorized construction but the defendant continued with the construction work. On the basis of aforesaid facts, plaintiff alleged in the plaint that defendant by way of raising unauthorized construction on the plot despite there being protest of the plaintiff board has infringed the rules and regulations and as such has caused legal injury to the residents of the area. In the aforesaid background, plaintiff board preferred the suit for ::: Downloaded on - 21/04/2017 23:57:25 :::HCHP ...4...
mandatory injunction against the defendant before the learned trial Court.
.
4. Defendant by way of written statement refuted the aforesaid claim of the plaintiff taking therein preliminary objections with regard to maintainability, locus-standi, cause of action, valuation, estoppel and limitation. On merits, defendant submitted that he had submitted his proposed site plan to the plaintiff for permission for construction and the entire construction was raised by him under the provisions of the rules. Defendant claimed that there is no violation of any rule and there was no unauthorized construction over any part of the plot. The plaintiff did not file any replication to the written statement.
5. Learned trial Court on the basis of the pleadings of the parties, framed the following issues:-
1. Whether plaintiff is entitled for relief of mandatory injunction as prayed for? OPP.
2. Whether the suit is not maintainable in present form? OPD.::: Downloaded on - 21/04/2017 23:57:25 :::HCHP
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3. Whether the plaintiff is estopped by his act and conduct to file present suit? OPD.
.
4. Relief:-
6. Subsequently, vide judgment and decree dated 1.4.2002, learned trial Court dismissed the suit having been filed by the plaintiff-board.
7. Feeling aggrieved and dissatisfied with the impugned judgment and decree dated 1.4.2002, passed by learned trial Court, appellant/plaintiff preferred an appeal under Section 96 CPC in the Court of learned Additional District Judge, Una, H.P, which came to be registered as Civil Appeal No.48 of 2002. However, fact remains that aforesaid appeal was dismissed, as a result of which, judgment and decree passed by the learned trial Court came to be upheld. In the aforesaid background, appellant/ plaintiff preferred instant Regular Second Appeal before this Court, praying therein for decreeing its suit after setting-aside the judgments and decrees passed by the learned Courts below.::: Downloaded on - 21/04/2017 23:57:25 :::HCHP
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8. This Court vide order dated 13.3.2006, admitted the instant Regular Second Appeal on the .
following substantial questions of law:-
1. Whether the first appellate court erred in law in holding that the plaintiff was not competent to lay a suit for mandatory injunction against an allottee of the plot under the hire purchase agreement in case such allottee raises unauthorized construction in violation to the terms of allotment?.
2. Whether the first appellate court erred in holding that the present suit for mandatory injunction against the defendant was incompetent as the appellant-plaintiff had issued a notice of resumption of the plot to the defendant for having not raised construction in accordance with the provisions of hire purchase tenancy agreement?.
3. Whether the findings of the courts below are result of misreading and misappreciation of the evidence on record?.
9. Mr. C.N.Singh, learned counsel representing the appellant/plaintiff vehemently argued that the ::: Downloaded on - 21/04/2017 23:57:25 :::HCHP ...7...
impugned judgment and decree passed by the learned courts below are not sustainable in the eye of law as the .
same are not based upon the correct appreciation of the evidence adduced on record by the respective parties and as such same deserves to be quashed and set- aside. While referring to the impugned judgments, learned counsel for the appellant/ plaintiff vehemently argued that both the Courts below have failed to appreciate that plaintiff-board successfully proved on record that the illegal construction was raised by the defendant on the spot without any approval of the construction plan from the appellant/plaintiff and as such, courts below ought to have granted decree for mandatory injunction in favour of the plaintiff board. While referring to the evidence adduced on record by the plaintiff as well as defendant, Mr.C.N. Singh, learned counsel stated that factum of unauthorized construction by the defendant in the year, 1990 itself stands proved because admittedly there was no approval of plaintiff board in favour of the defendant, ::: Downloaded on - 21/04/2017 23:57:25 :::HCHP ...8...
which could authorize him to raise construction on the plot allotted to him. Learned counsel representing the .
appellant/ plaintiff further contended that learned courts below wrongly dismissed the suit and appeal of the plaintiff on the ground that the appellant-plaintiff has failed to prove any construction on the plot having been allotted in favour of defendant, which finding of the learned courts below is totally contradictory to the record available on the file because there was no communication adduced on record by the defendant suggestive of the fact that any permission was ever granted in his favour by the plaintiff board authorizing him to raise construction over the plot.
10. Learned counsel for the appellant/plaintiff further argued that both the courts below erred in concluding that the plaintiff was not entitled to the relief, as prayed for, in the suit because conditions of agreement never envisaged relief claimed by the appellant/plaintiff. Learned counsel for the appellant/plaintiff further contended that both the ::: Downloaded on - 21/04/2017 23:57:25 :::HCHP ...9...
courts below erred in not appreciating that defendant was bound by the terms and conditions entered into .
between the parties, whereby construction, if any, could be commenced with the prior permission of the plaintiff-board that too within the stipulated years from the date of allotment. While referring to notice Ex.P-5, dated 18.12.1990 and notice Ex.DW3/C, dated 9.5.1991, learned counsel for the appellant/plaintiff forcibly contended that learned courts below have totally misread and misconstrued the aforesaid documents because plaintiff board rightly issued Ex.DW3/C to the defendant for resumption of plot since he failed to raise construction after getting necessary approval from the plaintiff-board within stipulated period. While concluding his arguments, Mr. C.N. Singh, learned counsel representing the appellant- plaintiff contended that there is total misappreciation and misreading of the documents adduced on record by the plaintiff-board and as such impugned judgments ::: Downloaded on - 21/04/2017 23:57:25 :::HCHP ...10...
passed by the learned courts below deserves to be quashed and set-aside.
.
11. Mr. N.K. Thakur, learned Senior Advocate, duly assisted by Ms.Jamuna, Advocate, supported the impugned judgments and decree passed by the learned courts below. Mr. Thakur, while referring to the impugned judgments and decree passed by the courts below strenuously argued that there is no illegality and infirmity in the findings returned by both the courts below and as such, same deserves to be upheld. While refuting the aforesaid contentions having been made by the learned counsel for the appellant/plaintiff, Mr. Thakur, invited the attention of this Court to the impugned judgment passed by the courts below as well as evidence adduced on record by the respective parties to demonstrate that each and every aspect of the matter have been dealt with by the learned courts below. Learned counsel for the respondent contended that there is ample evidence available on record suggestive of the fact that defendant after taking possession of plot ::: Downloaded on - 21/04/2017 23:57:25 :::HCHP ...11...
applied for approval of construction plan and construction on the plot was carried out with previous .
approval of authorities, who kept on visiting plot during the construction period and as such cannot be allowed to say that construction on the spot was raised without there being any approval from the competent authority.
12. Mr. Thakur, further contended that learned courts below rightly took note of notice Ex.DW3/C, dated 9.5.1991, whereby notice of resumption was issued to the defendant for not raising construction within stipulated period as envisaged under the 'HPTA' entered between the parties. Mr. Thakur, while concluding his arguments forcibly contended that this Court has very limited jurisdiction to re-appreciate the evidence in the instant proceedings, especially in view of the concurrent findings recorded by the courts below. In this regard, to substantiate his aforesaid plea, he placed reliance upon the judgment passed by the Hon'ble Apex Court in Laxmidevamma and Others vs. Ranganath and Others, (2015)4 SCC 264. ::: Downloaded on - 21/04/2017 23:57:25 :::HCHP
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13. I have heard learned counsel for the parties and have gone through the record of the case.
.
14. Perusal of the pleadings as well as evidence available on record clearly suggest that the plaintiff- board on the application having been made by the defendant allotted plot No. HIG-296 to the defendant on 6.1.1986 on hire purchase basis and delivered the possession of the said plot to the defendant on 13.5.1986. In nutshell, the case of the plaintiff is that defendant was required to raise construction, if any, on the said plot after approval of the construction plan from the competent authority, but since defendant raised construction on the said plot in the month of December, 1990 without there being any approval of proposed construction plan, construction raised on the plot is required to be demolished. Whereas, the defendant while refuting the aforesaid claim of the plaintiff, claimed that he had submitted his proposed site plan for permission to the plaintiff for construction and entire construction was raised strictly in conformity ::: Downloaded on - 21/04/2017 23:57:25 :::HCHP ...13...
with the rules. Defendant while placing reliance upon the notice Ex.DW3/C also claimed that he was required .
to complete construction within five years after entering hire purchase agreement, failing which plaintiff-board was at liberty to resume the plot.
15. Since, substantial questions of law No.1 and 2 are interlinked, same are taken up together for consideration.
16. Perusal of impugned judgment passed by the learned first appellate Court, nowhere suggests that there is a finding, if any, returned by the learned first appellate Court that the plaintiff-board was not competent to lay his suit for mandatory injunction against the defendant,rather careful perusal of the impugned judgment passed by the learned first appellate Court suggests that since the plaintiff board failed to prove on record that the defendant raised construction over the plot in the month of December, 1990 without approval of construction plan from the plaintiff board, suit having been filed by the plaintiff- ::: Downloaded on - 21/04/2017 23:57:25 :::HCHP
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board came to be dismissed by the learned trial court as well as learned first appellate Court.
.
17. Careful perusal of the impugned judgments passed by the learned courts below nowhere suggest that the suit filed by the plaintiff board for mandatory injunction was held not maintainable in terms of the conditions contained in the 'HPTA' entered between the parties. Careful perusal of the 'HPTA' Ex.P-3, certainly suggests that the construction, if any, on the allotted plot could be carried out by the allottee after getting construction plan sanctioned from the plaintiff board. In the instant case, plaintiff with a view to prove that the defendant raised construction in the month of December, 1990 without the approval of the construction plan from the plaintiff board produced oral as well as documentary evidence, but perusal of the same nowhere persuade this court to take a view that plaintiff board was able to prove that the defendant raised construction over the plot in the month of ::: Downloaded on - 21/04/2017 23:57:25 :::HCHP ...15...
December, 1990 without the approval of construction plan from the plaintiff board.
.
18. PW-1, Sh. K.K. Kalia, S.D.O, Housing Board Rakkar Colony, Una though stated that the defendant had started construction in the month of December, 1990. He also stated that he issued notice Ex.P-5 on 18.12.1990 to the defendant advising him to stop the construction.
r Aforesaid witness also stated that Executive Engineer, H.P. Housing Board, Division Mandi, H.P., also gave notice Ex.P-6, dated 9.1.1991 to the defendant to stop the construction.
19. PW-2, Sh. Achhar Singh, J.E. Housing Board Una stated that site plan Ex.P-8 was prepared by him, whereby he had shown unauthorized construction in red lines in the site plan. In cross-examination, he stated that he had visited the spot in January, 1993. It has also come in the cross-examination of this witness that he had not taken the copy of the approved site plan at the spot as according to him the defendant has not got the site plan approved. If the statement of PW-2 is ::: Downloaded on - 21/04/2017 23:57:26 :::HCHP ...16...
read juxtaposing the statement of PW-1, it can be safely concluded that both the witnesses took contradictory .
stands because PW-2 claimed that defendant had started construction over his plot without getting the permission and therefore, notice Ex-P-5, dated 18.12.1990 was issued to him. But interestingly, PW-2, stated that he had visited the spot in January, 1993 and he nowhere stated anything with regard to notice as claimed by the PW-1. There is no explanation made available on record by the plaintiff that why action, if any, was not taken pursuant to notices Ex.P-5 & Ex.P- 6, dated 18.12.1990 and 9.1.1991, when for the first time illegal construction on the spot was detected by the plaintiff department. Rather, PW-2 himself stated that he visited the spot in January, 1993 and prepared the location plan Ex.P-4.
20. Careful perusal of the aforesaid evidence led on record by the plaintiff, nowhere proves that the defendant had raised construction prior to the approval of the construction plan because admittedly by allowing ::: Downloaded on - 21/04/2017 23:57:26 :::HCHP ...17...
the defendant to carry on the construction of the plot allotted to him during the year 1990 to 1993, plaintiff .
acquiesced the construction of the house of the defendant. Moreover, it is not disputed that during the alleged illegal construction, plaintiff-board released and sanctioned the sewerage and water connection in favour of the defendant. Plaintiff board has nowhere disputed the factum of submitting of construction plan by the defendant, rather plan submitted by the defendant was returned by the plaintiff board with some objections. Perusal of Ex.DW3/C, suggests that there was vehement pressure upon the defendant to complete construction within stipulated period of 'HPTA'.Vide aforesaid notice dated 9.5.1991, plaintiff board sought explanation from the defendant that why plot allotted in his favour be not resumed for not raising construction up to 5.1.1991.
21. It is quite evident from the record that on one hand plaintiff board kept on writing letters Ex.P-5, dated 18.12.1990 and Ex.P-6, dated 9.1.1991 to the ::: Downloaded on - 21/04/2017 23:57:26 :::HCHP ...18...
defendant advising him to stop the construction, but on the other hand plaintiff board issued show cause notice .
dated 9.5.1991 for resumption of plot for not raising construction up to 5.1.1991. It is not understood that how plaintiff board, who repeatedly asked the defendant to stop raising construction over the alleged plot, could issue notice dated 9.5.1991 for resumption of plot.
22. r Apart from above, careful perusal of the documentary evidence led on record by the defendant in the shape of Ex.DW3/B clearly suggests that drawing submitted by the defendant was under consideration of the plaintiff-board. Perusal of Ex.DW3/E i.e. office order issued by the Executive Engineer, H.P. Housing Board, Division Mandi, clearly suggests that water and sewerage connection in respect of HIG plot in housing colony at Una was allotted in favour of Sh. Madan Mohan Singh subject to the condition that defendant will get his building plan approved within three months from the Estate Manager, H.P. Housing Board, Nigam Bihar Shimla, meaning thereby, no reliance, if any, ::: Downloaded on - 21/04/2017 23:57:26 :::HCHP ...19...
could be placed by the plaintiff board on the alleged notices Ex.P-5 and Ex.P-6 dated 18.12.1990 and .
9.1.1991 to prove that defendant raised unauthorized construction on the plot. Admittedly, no action pursuant to the aforesaid notices was ever taken by the plaintiff against the defendant, rather, perusal of Ex.DW3/E clearly suggests that action, if any, of raising construction without there being approval from the competent authority was condoned by the Executive Engineer, Housing Board Division, Mandi, who while granting sewerage as well as water connection in favour of the defendant advised him to get his building plan approved within three months from the Estate Manager, H.P. Housing Board. If no construction could be carried out by the defendant on the plot without there being permission, where was the occasion for the authorities to release the water and sewerage connection, meaning thereby construction was raised by the defendant with the implied consent of officers of the plaintiff board Perusal of Ex.DW3/G i.e. notice dated 19.7.1991 issued ::: Downloaded on - 21/04/2017 23:57:26 :::HCHP ...20...
by the Estate Manager also proves on record that no action, if any, pursuant to the alleged notices Ex.P-5 .
and Ex.P-6 was sought to be taken by the concerned authority till 31st July, 1991 because by way of aforesaid communication defendant was called upon to deposit amount of Rs. 5405.15/- on account of HPTA. Even Ex.DW3/I, dated 24.1.1992 suggests that no action, if any, pursuant to notices Ex.P-5 and Ex.P-6 was ever taken till 24th January, 1992 by the plaintiff board.
23. After carefully examining the evidence, be it ocular or documentary led on record by the plaintiff- board, this Court sees no reasons to differ with the findings returned by the learned courts below that the plaintiff board failed to prove that defendant raised construction over the plot in the month of December, 1990 without approval of the construction plan from the plaintiff board. Rather, careful examination of the record, as has been discussed above, compels this Court to conclude that plaintiff board itself allowed the ::: Downloaded on - 21/04/2017 23:57:26 :::HCHP ...21...
defendant to raise construction on the allotted plot in anticipation of the approval of proposed construction .
plan submitted by the defendant.
24. Though, perusal of Ex.P-5 and Ex.P-6 suggest that notices were issued to the defendant for stopping the construction on the spot, but subsequent documents, as have been discussed hereinabove, clearly suggest that aforesaid action of raising construction in violation of the terms and conditions contained in the 'HPTA' was condoned by the authority of the plaintiff board itself to facilitate the construction within stipulated time by releasing water and sewerage connection in favour of the defendant.
25. Leaving everything aside, if letter Ex.DW3/C, dated 9.5.1991 having been issued by the plaintiff board is considered and examined in the light of pleadings as well as other evidence available on record, it itself demolish the case of the plaintiff board because once defendant had raised construction in violation of the terms and conditions of the 'HPTA' as alleged by the ::: Downloaded on - 21/04/2017 23:57:26 :::HCHP ...22...
plaintiff board, there was no occasion for it to issue notice dated 9.5.1991 for resumption of plot for not .
raising construction up to the period of 5.1.1991. As per the terms and conditions contained in the 'HPTA', no construction, if any, could be raised on the alleged plot without there being sanction of construction plan and as such action, if any, for the violation of the 'HPTA' could be taken by the authorities without resorting to the other provisions contained in the agreement which provided for resumption of plot for not raising construction within stipulated period. But, as has been discussed above, though notices for stopping the construction were issued by the plaintiff board but lateron authorities themselves allowed the construction on the spot in anticipation of approval of the construction plan admittedly submitted by the defendant.
26. PW-1, in his cross-examination admitted that the construction plan was submitted by the defendant in the office of the board on 13.2.1991. DW-1 further ::: Downloaded on - 21/04/2017 23:57:26 :::HCHP ...23...
proved on record by leading cogent and convincing evidence that construction plan was submitted by him .
in the office of plaintiff board on 13.2.1991. Hence, the plaintiff board cannot be allowed to say that the construction was raised without the approval of the board. After close scrutiny of the material adduced on record by the respective parties, this Court is totally in agreement with the findings returned by the learned courts below. It is not understood that how plaintiff board could take contradictory pleas, while filing the suit of mandatory injunction against the defendant because on one hand plaintiff board claimed that in December, 1990 and January,1991, it repeatedly advised the defendant to stop construction but in the month of May, 1991 plaintiff board issued show cause notice to the defendant asking him as to why plot allotted to him should not be resumed as he failed to raise the construction within stipulated time.
27. Similarly, this Court sees no force in the arguments having been made by the learned counsel for ::: Downloaded on - 21/04/2017 23:57:26 :::HCHP ...24...
the plaintiff board that learned first appellate Court erred in concluding that the suit for mandatory .
injunction against the defendant was incompetent as the plaintiff/appellant had issued notice of resumption for the plot to the defendant for having not raised construction in accordance with the provisions of 'HPTA.' Admittedly, there is no finding with regard to non-maintainability of the suit having been filed by the plaintiff board on the ground of issuance of notice of resumption by the plaintiff-board. Rather, learned Courts below on the basis of evidence available before them rightly came to the conclusion that plaintiff failed to prove on record that defendant has raised construction over the plot in the month of December, 1990 without approval of the construction plan from the plaintiff board. The substantial questions of law are answered accordingly. While exploring answer of aforesaid substantial questions of law this Court had an occasion to peruse the entire evidence available on record, perusal whereof nowhere suggest that the courts ::: Downloaded on - 21/04/2017 23:57:26 :::HCHP ...25...
below misread and mis-appreciate the evidence and as such substantial question of law No.3 is answered .
accordingly.
28. This Court is fully satisfied that both the Courts below have very meticulously dealt with each and every aspect of the matter and as such sees no perversity in the impugned judgments, accordingly, there is no scope of interference, whatsoever, in the present matter. Since both the Courts below have returned concurrent findings, which otherwise appears to be based upon proper appreciation of evidence, this Court has very limited jurisdiction/scope to interfere in the matter. In this regard, it would be apt to reproduce the relevant contents of judgment rendered by Hon'ble Apex Court in Laxmidevamma's case supra, wherein the Court has held as under:
"16. Based on oral and documentary evidence, both the courts below have recorded concurrent findings of fact that the plaintiffs have established their right in A schedule property. In the light of the concurrent findings of fact, no substantial questions of law arose in the High Court ::: Downloaded on - 21/04/2017 23:57:26 :::HCHP ...26...
and there was no substantial ground for reappreciation of evidence. While so, the High Court proceeded to observe that the first plaintiff has earmarked the A .
schedule property for road and that she could not have full-fledged right and on that premise proceeded to hold that declaration to the plaintiffs' right cannot be granted. In exercise of jurisdiction under Section 100 CPC, concurrent findings of fact cannot be upset by the High Court unless the findings so recorded are shown to be perverse. In our considered view, the High Court did not keep in view that the concurrent findings recorded by the courts below, are based on oral and documentary evidence and the judgment of the High Court cannot be rsustained."
(p.269)
29. Consequently, in view of the detailed discussion made hereinabove, present appeal fails and same is dismissed.
Interim directions, if any, are vacated. All miscellaneous applications are disposed of.
(Sandeep Sharma )
17th April, 2017 Judge
(shankar)
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