Punjab-Haryana High Court
Harish Kumar And Ors. vs Municipal Committee And ????? on 25 August, 2003
Equivalent citations: (2003)135PLR890
Author: Adarsh Kumar Goel
Bench: Adarsh Kumar Goel
JUDGMENT Adarsh Kumar Goel, J.
1. This second appeal arises from a suit for injunction filed by the appellant-plaintiffs to restrain the respondent-Municipal Committee from enforcing its notice dated 27,1.1994 under Sections 208/209 of the Haryana Municipal Act, 1973 (hereinafter referred to as the 1973 Act), requiring the plaintiffs to remove constructions raised without any sanctioned plan and also from raising further construction,
2. Case of the appellants is that they are owners of property called Liberty Complex for the last many years and started construction of front portion abutting GT road after demolishing a portion of the existing construction. It is further stated that construction had been completed in March, 1993 on the ground floor as well as the first floor. Thereafter, notice was given on 27.1.1994 which was beyond six months from the date of completion of construction. The property was duly assessed to house tax.
3. The suit was contested by submitting that construction has been raised without any sanction and notice was within six months of construction. It was also denied that the plaintiffs were paying house tax.
4. The trial court decreed the suit inter-alia on the ground that notice was issued only to Harish Kumar and not to all the owners; the defendants failed to prove that illegal construction was within six months of the date of notice and also details of the illegal construction were not given.
5. On appeal, the lower appellate court reversed the view taken by the trial court and dismissed the suit. The lower appellate court held that mere omission to mention number of building could not be held to be fatal as no number had yet been allotted and no information was given to the Municipal Committee as to who was the owner as admitted by PW2 Adhish Gupta. DW1 Lajpat Rai deposed that notice was sent after receiving a report from Lalit Kumar, Junior Engineer and after verifying the property at the site. DW3 Lalit Kumar, Junior Engineer deposed that the notice was issued after visit to the site and construction continued inspite of the notice. It was observed that plaintiffs were not able to show any site plan nor did they produce any mason or witness to show the actual date of construction. The property was situated in municipal limits and no receipt of house tax was produced. It was also held that no notice under Section 52 of the 1973 Act had been served.
6. Learned counsel for the appellants submitted that the view taken by the lower appellate court is erroneous while the trial court rightly decreed the suit. He submitted that Section 52 of the 1973 Act did not apply when suit was for injunction. Learned counsel for the appellants relied on decision of this court in Raj Masih v. Municipal Corporation, Amritsar, 1987 S.L.J. 127, wherein it was held that availability of remedy of appeal did not bar the jurisdiction of civil court if order is passed in violation of principles of natural justice. Learned counsel also relied upon decision of this court in Joginder Pal and Anr. v. Mohan Lal Jain and Anr., 1989(1) C.L.J. 226, wherein it was held that injunction suit could be filed even without notice. He next relied on judgment of this court in Municipal Committee, Hissar v. Chaudhary Sat Pal, 1987(2) C.L.J. 358 to the effect that if notice is vague without giving details of the suit building, the court could grant injunction against its enforcement. In Amar Singh v. Municipal Committee, Hisar, 1984 C.L.J. 27, it was held that if construction is made six months before issuing of notice, notice was illegal and injunction could be issued to restrain the committee from enforcement of notice. In Dalu Ram v Municipal Committee, Hissar, (1971)73 P.L.R. 367, it was observed that notice of demolition of unauthorised construction could be given only within six months of construction.
7. Learned counsel for the Municipal Committee submitted that a prior notice under Section 52 was mandatory in absence of which no suit could be filed. Learned counsel relied on a Single Bench judgment of this court in Prem Chand v. Municipality Ambala City and Anr., (1997-3)117 P.L.R. 323. The said case related to challenge to the imposition of house tax. In Municipal Council, Narnaul v. Mahabir Parshad, (1997-3)117 P.L.R. 767, it was held that injunction could be granted only after plaintiff was able to show his ownership on the land, permission and sanction from the committee to raise construction and if the plaintiff is not able to show that he had the sanction for construction, injunction could not be granted,
8. Following questions arise for consideration:-
1. Whether an injunction suit is barred in absence of notice under Section 52 of the 1973 Act?
2. Whether an injunction suit is barred on account of availability of remedy of appeal under Section 240 or under third proviso to Section 208 of the Act?
3. What are the situations in which an injunction could be granted in the matter of a notice to remove unauthorised construction or to stop unauthorised construction?
4. Whether dismissal of suit of the plaintiff is justified in the present case? 9. To decide the first question, a reference may be made to the relevant provision. Section 52 of the 1973 act is as under:-
"Suits against committee and its employees:- No suit shall be instituted against a committee, or against any employee of a committee, in respect of any act purporting to be done in its or his official capacity, until the expiration of one month next after notice in writing has been, in the case of a committee, delivered or left at its office, and in the case of an employee, delivered to him or left at his office or place of abode, stating the cause of action and the name and place of abode of the intending plaintiff, and the plaint must contain a statement that such notice has been so delivered or left:
Provided that nothing in this section shall apply to any suit instituted under Section 38 of the Specific Relief Act, 1963."
Proviso to the above section shows that injunction suit is not barred. Present suit being a suit for injunction, proviso to Section 52 will apply and suit will be maintainable even in absence of notice as provided therein. In Joginder Pal's case (supra), same view was taken. In Prem Chand's case (supra) relied upon by the learned counsel for the respondents, suit was not for injunction. The said judgment is, thus, distinguishable. However, mere maintainability of suit is not enough for grant of injunction. This matter will be dealt with further in the later part of the judgment under Question No. 3.
10. Under Section 9 of the Code of Civil Procedure, Civil court has jurisdiction to try all suits of civil nature except those of which cognizance is expressly or impliedly barred. Question whether jurisdiction of the civil court is barred, was considered by the Apex Court in several decisions and it has been held that to decide whether jurisdiction of civil court is barred or not, court is to examine scheme of a particular Act to find out adequacy or sufficiency of remedies provided and to find out that whether the statute created any special right or liability and provided for determination of such a right or liability by special machinery parallel to civil court. Reference is made to judgments of the Apex Court in Dhaulabhai v. State of M.P., A.I.R. 1969 S.C. 78, Premier Automobiles Ltd. v. Kamlekar Shantaram Wadke, A.I.R. 1975 S.C. 2238, Bata shore Co. Ltd v. City of Jabalpur Corporation, A.I.R. 1977 S.C. 955, Munishi Ram v. Municipal Committee, Chheharta, A.I.R. 1979 S.C. 1250, Ram Singh v. Gram Panchayat, Mehal Kalan, A.I.R. 1986 S.C. 2197, Raja Ram Kumar Bhargava v. Union of India, A.I.R. 1988 S.C. 752 and Sushil Kumar Mehta v. Gobind Ram Bohra, (1990)1 S.C.C. 193.
11. The said decisions were considered in the context of Delhi Municipal Corporation Act, 1957 in Shiv Kumar Chadha v. Municipal Corporation of Delhi and Ors., (1993)3 S.C.C. 161. In the said case, there was express bar of jurisdiction of civil court. However, it was held that the Municipal Act did not deal with any right or liability created under the Act itself and, therefore, principle applicable-where right and remedy are given 'uno flatu' i.e. "in the same breath" does not apply and, therefore, jurisdiction of the civil court it not per se barred. However, principles when civil court will entertain suit and when temporary injunction will be granted were also laid down which will be referred to in the later part of the judgment.
12. In Raj Masih's case (supra) relied upon by the learned counsel for the appellants, it was held that mere availability of remedy of appeal was not enough to bar a suit when impugned action was violative of natural justice. I, thus, hold that a suit will not be barred at the threshold merely on account of availability of remedy of appeal under Section 240 of the Act or under third proviso to Section 208 of the Act. This, however, is to be read with conclusions in later part of the judgment on the question as to when the court will entertain a suit.
13. I now come to the third question. Even though, as held hereinabove, the authorities cannot be held to have exclusive power, to the absolute exclusion of the civil court, to decide on the question of demolition of unauthorised constructions, remedy of civil court cannot be available to protect construction made in violation of law. Existence of right of the plaintiff, purpose of the statute authorising action, public interest and justice to the individual citizen, are some of the principles which a court has to keep in mind. While the court has to protect a citizen who is being wronged, judicial proceedings cannot be used to protect or perpetuate a wrong committed by a person who approaches the court. When special remedy of appeal is statutorily provided, court may entertain a suit unless remedy of appeal is not considered to be effective. As held in Municipal Council, Barnaul's case (supra), injunction ought not to be granted unless it was shown that plaintiffs were the owners of the site in dispute or otherwise had a right to raise construction and that construction being raised by them was after obtaining sanction from the Municipal Committee. As held by the Apex Court in Shiv Kumar Chadha's case (supra), regulations and bye-laws in respect of buildings are meant to serve public interest. In such matters, injunction could not be granted as a matter of right or course. The Apex Court also cautioned that while granting temporary injunction while protecting interest of the plaintiff against an alleged injury, more serious injury ought not to be caused to the defendants and public interest should not be allowed to suffer by grant of interim order of injunction, enabling persons in whose favour injunction was granted to perpetuate contravention of law. The Apex Court has also cautioned against grant of injunction before notice to the opposite party in violation of Order 39 Rule 3 CPC. Following directions of the Apex Court in para 36 are required to be observed before any injunction is granted:-
"(i) The court should first direct the plaintiff to serve a copy of the application with a copy of the plaint along with relevant documents on the counsel for the Corporation or any competent authority of the Corporation and the order should be passed only after hearing the parties.
(ii) If the circumstances of a case so warrant and where the court is of the opinion, that the object of granting the injunction would be defeated by delay, the court should record reasons for its opinion as required by proviso to Rule 3 of Order 39 of the Code, before passing an order for injunction. The court must direct that such order shall operate only for a period of two weeks, during which notice along with copy of the application, plaint and relevant documents should be served on the competent authority or the counsel for the Corporation, affidavit of service of notice should be filed as provided by proviso to Rule 3 of Order 39 aforesaid, if the Corporation has entered appearance, any such ex parte order of injunction should be extended only after hearing the counsel for the Corporation.
(iii) while passing an ex parte order of injunction the court shall direct the plaintiff to give an undertaking that he will not make any further construction upon the premises till the application for injunction is finally heard and disposed of."
Thus, while court will require the plaintiff to adopt the remedy of appeal under third proviso to Section 208 or Section 240 unless such remedy, in the given facts of a particular case, is held to be illusory, court is not debarred from protecting a citizen who is being wronged and who is able to establish his right to injunction by showing his right to construct. Even in such a case, procedure laid down hereinabove will be required to be fulfilled, apart form any other appropriate condition to ensure that a person is not able to raise illegal construction or to protect or perpetuate a wrong committed by him, by invoking the jurisdiction of the court.
14. Now I come to the last question. In the present case, it is not possible to accept the plea that remedy of appeal was not provided as the notice was mentioned to be under Section 209 also while appeal was provided against an order under Section 208. Section 208 provides for alteration or demolition of building while Section 209 provides for stopping/discontinuing construction/building operations. Thus, in the present case, the appellants had alternative remedy. Plea that notice was vague, is untenable when the appellants were quite clear about the building which the notice referred. Judgment in Chaudhary Sat Pal's case (supra) relied upon by the learned counsel for the appellants is distinguishable. The statutory provision makes it clear that the authority has to act within six months of the construction, In Amar Singh's case (supra), on facts, it has been held construction was not proved to be within six months. Same view was taken in Dula Ram's case (supra). In the present case, the notice in question stated that construction was continuing and the said notice was duly proved by the employee of the Corporation who visited the spot and the plaintiffs who were having the knowledge about the date of construction had failed to lead any evidence abut the date of construction. The view of the lower appellate court that notice could not be held beyond six months' construction, cannot be held to be perverse. The plaintiffs have not been able to show that any sanction had been obtained. There is no materia to show that the construction raised by the appellants was valid. The view taken by the lower appellate court that plaintiffs were not entitled to injunction cannot, thus, be held to be erroneous. For the above reasons, there is no merit in the appeal.
15. Even though, the appeal filed by the appellants is liable to be dismissed, it cannot be ignored that construction has been made long back and the trial court had granted the injunction. The Municipal Committee has discretion in the matter of requiring alteration, demolition or recovery of composition fee. This jurisdiction is to be exercised fairly. Learned counsel for the Committee has stated that the Committee is willing to pass a speaking order after hearing the appellants and will proceed further only thereafter. This statement of the learned counsel for the Committee is recorded.
16. I do not express any opinion about the justifiability of course of action on which a decision is yet to be taken which is a matter to be examined in appropriate proceedings. Subject to the above, the appeal is dismissed.