Punjab-Haryana High Court
Haryana Urban Development Authority vs Hari Lal on 30 April, 1996
Equivalent citations: (1996)117PLR782
Author: Swatanter Kumar
Bench: Swatanter Kumar
ORDER Swatanter Kumar, J.
1. Records have been received. I have heard the learned counsel for the parties.
2. The present appeal is directed against the judgment of the learned appellate Court dated 27th January, 1995. The learned appellate Court affirmed the judgment and decree dated 1.4.1994 passed by the learned trial Court.
3. The limited question that arises for consideration in this case is whether the respondent before this Court is entitled to the benefit of proviso to Section 55 of the Haryana Urban Development Authority Act, 1977 (hereinafter referred to as 'the Act'). Proviso to this section places the restriction with regard to exercise of power of demolition by the authorities concerned with regard to a structure, building or erection or re-erection of a building as defined under the bye-laws after the expiry of the given period. Both the Courts below have held and given a finding of fact based on proper evidence, that the water tank above the roof of the Dhaba of the respondent was constructed in the year 1983 while the notice for demolition is alleged to have been served in the year 1991. The case of the respondent is that in the year 1991 the officials of the appellant had come to the Dhaba on 7.2.1991 and they threatened to demolish the said water tank and illegally took away the articles, utensils and furnitures etc. of the respondent without authority of law and in violation of principles of natural justice and protection available to the respondents under the proviso aforesaid.
4. The bare reading of the first proviso to Section 55 clearly indicates that the authority concerned can exercise their power to demolish an unauthorised or an illegal structure only within a period of six months from the date of its erection, that too after following due process of law as postulated in the provisions of the said Act and the rules and regulations framed thereunder.
5. The second proviso to Section 55 states a class of action which the authorities concerned can take while exercising the powers under the said section. Under the second proviso the authorities concerned in a given case can direct the party to pay such compensation fee as may be deemed reasonable by the authorities and the authorities may not require the party to carry out any alteration or demolition of any such building. But if the building has been erected and the authorities have not served any notice within six months from the date of construction or completion of construction as the case may be, then provisos would restrict the exercise of power by the authorities to the limitation prescribed in these provisions. The restricted exercise of power is clearly indicated by the legislature in unambiguous and clear language. In the facts of the present case the authorities cannot deprive the petitioner of the protection which the Act itself has provided to the respondent. The learned courts below had correctly held and given the benefit of the protection available to a party under first proviso to Section 55 of the Act. Admittedly the water tank was constructed years back and the period of six months had expired long back. In any case this would not be of much consequence because there is a serious doubt as to whether construction of a water tank can be termed as an erection within the meaning of the definitions provided under this Act. However, I do not propose to embark upon this aspect in this case and this question is left open. Serious threat of demolition after the stipulated period of six months by the appellant has given rise to the legitimate right of the respondent to approach the Court by instituting the suit. It is equally true that the second proviso gives power to the authorities to accept compensation fee instead of requiring alterations to be made or demolition to be effected. The second proviso has not been enacted to completely destroy or frustrate the protection available to the person under the first proviso to Section 55 of the Act. As such law as well as equity are in favour of the respondent.
6. In this case there are concurrent findings of fact based on proper evidence and I see no jurisdictional or any other error in the judgments and decree of the courts below which are hereby affirmed. Consequently this appeal is dismissed. There shall be no order as to costs.