Himachal Pradesh High Court
H.P. Housing And Urban Development ... vs Ex. Hav. Sansar Singh Manhas on 21 July, 2016
Author: Rajiv Sharma
Bench: Rajiv Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
RSA No. 75 of 2006
Reserved on: 18.7.2016.
Decided on: 21.7.2016.
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H.P. Housing and Urban Development Authority ......Appellant.
Versus
Ex. Hav. Sansar Singh Manhas .......Respondent.
Coram
of
The Hon'ble Mr. Justice Rajiv Sharma, Judge.
Whether approved for reporting? No.
For the appellant(s): Mr. C.N.Singh, Advocate.
For the respondent:rt Mr. Ashwani Sharma, Sr. Advocate, with Mr. Maan Singh,
Advocate.
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Justice Rajiv Sharma, J.
This regular second appeal is directed against the judgment and decree of the learned Addl. District Judge (Presiding Officer, Fast Track Court), Hamirpur, H.P. dated 19.9.2005, passed in Civil Appeal No. 132 of 2000/336 of 2004.
2. Key facts, necessary for the adjudication of this regular second appeal are that the appellant-plaintiff (hereinafter referred to as the plaintiff) filed a suit for permanent prohibitory injunction against the respondent-defendant (hereinafter referred to as the defendant). The case of the plaintiff, precisely, is that defendant applied for house plot EMIG-II-
141 in Housing Board Colony, Hamirpur. He was allotted house on 18.2.1988. The possession was handed over to him. The deed of the conveyance of the house was executed. The allotment was subject to the terms and conditions of the letter dated 18.2.1988. The defendant was required to carry out the construction as per the approved plan. The ::: Downloaded on - 15/04/2017 20:51:45 :::HCHP 2 defendant applied to the plaintiff-Board for the sanction of the plan in order to raise construction and accordingly the plan was approved in the .
first week of August, 1993. It transpired during the inspection that the defendant had raised unauthorized construction and had also encroached upon the land of the plaintiff-Board. The defendant was requested to remove unauthorized construction but to no avail.
3. The suit was contested by the defendant. According to him, of he had carried out the construction as per the approved plan sanctioned by the plaintiff-Board. He has not raised any unauthorized construction rt nor encroached upon the plaintiff's land.
4. Replication was filed. The issues were framed by the learned Sr. Sub Judge, Hamirpur, H.P. on 8.12.1994. He dismissed the suit on 2.6.2000. The plaintiff, feeling aggrieved, preferred an appeal before the learned Addl. District Judge (Presiding Officer, Fast Track Court), Hamirpur, H.P. It was also dismissed on 19.9.2005. Hence this regular second appeal.
5. This Regular Second Appeal was admitted on the following substantial question of law on 7.4.2006:
"1. Whether the findings of the learned trial Court and first Appellate court are dehors the evidence on record?"
6. Mr. C.N. Singh, Advocate, for the appellant, on the basis of substantial questions of law, has vehemently argued that both the Courts below have not correctly appreciated the oral as well as documentary evidence on record. On the other hand, Mr. Ashwani K. Sharma, Sr. ::: Downloaded on - 15/04/2017 20:51:45 :::HCHP 3 Advocate, has supported the judgments and decrees passed by the learned Courts below.
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7. I have heard counsel for the parties and gone through the judgments and records of the case carefully.
8. PW-1 R.C.Katoch, was the SDO at that time. According to him, as per the agreement future additions and alterations could be made by the allottee with prior approval of his plan from the plaintiff-Board.
of Whatever construction has been raised by the defendant, the same was without prior approval and sanction of his plan and despite that he has rt encroached upon the land of the Board. The defendant has raised unauthorized construction to the extent of 44.40 sq. mtrs and has encroached upon the land of the plaintiff-Board to the extent of 21.64 sq. mtrs. In his cross-examination, he admitted that defendant has infact purchased a built in house from the plaintiff-Board. He was not in a position to specify as to how much construction has been raised by the defendant. The defendant has made entire payment to the Board.
9. PW-2 Rup Lal JE has proved Map Ext. PW-2/A. He admitted that infact the defendant has purchased the built in house. He has further testified that he has not shown the details of the constructed portion of the house of the defendant purchased by him from the Housing Board. He has nowhere deposed as to how much construction has been raised by the defendant after the house was allotted to him.
10. PW-3 Anjori Kapoor Asstt. Engineer deposed that he was authorized by the Board vide authority letter Ext. PW-1/A. He has nowhere deposed as to how much construction was already existing in ::: Downloaded on - 15/04/2017 20:51:45 :::HCHP 4 the plot allotted to the defendant and how much construction was raised by the defendant after the allotment.
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11. The defendant has appeared as DW-1. According to him, he had purchased the constructed house from the Board. He has never encroached upon the land of the Board nor raised any unauthorized construction. The foundation of the house was damaged due to heavy rains in the month of September, 1995.
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12. DW-2 Prabhat Singh and DW-3 Amar Singh have corroborated the statement of DW-1 Sansar Singh. DW-4 R.K. Gupta Ex.
rt Engineer was appointed as Local Commissioner in this case and proved his report Ext. PB. He has visited the spot on 23.5.1994.
14. The site plan was prepared by PW-2 Rup Lal JE. Map/site plan Ext. PW-2/A was prepared by him at the spot and has shown unauthorized construction and encroachment in it made by the defendant. However, he was silent how and in what manner and to what extent the defendant has raised unauthorized construction. In his cross-
examination, he admitted that defendant was not present at the time when the site plan Ext. PW-2/A was prepared. It was prepared without any scale. He has admitted that demarcation was not conducted by him.
15. DW-4 R.K. Gupta was appointed as Local Commissioner and his report is Ext. PB.
16. The Board has not taken the assistance of revenue expert though according to PW-2 Rup Lal JE notice was issued to the defendant when he visited the spot but no notice has been placed on record.
::: Downloaded on - 15/04/2017 20:51:45 :::HCHP 517. DW-4 R.K. Gupta was appointed as Local Commissioner and his report is Ext. PB. He has visited the spot on 23.5.1994. According to .
the report, the defendant had purchased the house No. 141 from the Housing Board comprising of one room, kitchen, toilet and verandah with a scope of further extension for one room and stairs as per provisions in the standard plan in the ground floor. Three sides off sets i.e. 1.855 mtrs.
towards front and back and 1.295 mtrs. on third side from the edge of the of extended/completed house were to be left in the plot area. Fourth side was a common wall with the adjoining plot holder. No encroachment has rt been made on the ground.
18. The defendant was supplied with the drawings of house No. 141 vide Ext. PW-3/A on 24.10.1988. He has raised the construction in the year 1989. The officials of the Board used to visit the site regularly but no steps were taken to stop the alleged illegal construction, if any. It is not mentioned in the pleadings as to when exactly the unauthorized construction was raised. No demarcation has been carried out. The pleadings were vague and sketchy. The substantial question of law is answered accordingly.
19. Consequently, there is no merit in this appeal and the same is dismissed, so also the pending application(s), if any.
July 21, 2016, ( Rajiv Sharma ),
(karan) Judge.
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