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[1] Challenge in the regular second appeal is to judgment and decree dated 05.05.2015 passed by the learned District Judge, Panchkula in case titled as Rakesh Budhiraja and others vs. Haryana Urban Development Authority and another, reversing the judgment and decree dated 24.09.2013 passed by the learned Civil Judge (Junior Division), Panchkula whereby Civil Suit No.303 of 2007 filed by the plaintiffs / respondents was dismissed.

[2] Learned Counsel contends that the learned appellate court failed to appreciate that it was for HUDA to decide whether action was to be taken for violation on account of building bye laws / zoning plan u/s 17 or 55 Haryana Urban Development Authority Act, 1977 (hereinafter 1 of 12 Neutral Citation No:=2023:PHHC:071032 RSA-2586-2016 (O&M) [2] 2023:PHHC:071032 referred to as "HUDA Act 1977") besides the civil court had no jurisdiction to interfere in the matter moreover, pursuant to fresh inspection, non compoundable violations were found. [3] Per contra, learned counsel for the respondents by referring to the decision of this Court in Haryana Urban Development Authority and another vs. Vipin Sharma and another, 2009 (3) RCR (Crl.) 695 contends that in case of violation of building plan / site plan, remedy available to HUDA is to proceed under Section 55 HUDA Act, 1977 and not under Section 17 and that since the action was without jurisdiction being in violation of the provisions of the HUDA Act, 1977 itself, the Civil Court had the jurisdiction to hear and decide the matter. Learned counsel further contends that even if the allottee fails to show cause or refuses to remove the violations as per notice under Section 55 HUDA Act, 1977, HUDA had the authority to resume the building but only as a last resort in view of the Full Bench decision of this Court in Dhera Singh vs. UT, Chandigarh Administration and others, 2012 (4) RCR (Civil) 970. Learned counsel contends that once there is a specific provision to deal with violations on account of building by-laws / zoning plans, action firstly had to be taken under Section 55 HUDA Act 1977 and only if the allottee did not show cause or did not do the needful as required to be done under Section 55 HUDA Act, 1977 then to initiate action for resumption but that no action for resumption was justified in the first instance. [4] I have considered the submissions of learned counsel and with their able assistance gone over the record as produced. A perusal of the judgment and decree passed by the learned Civil Judge (Junior Division), Panchkula reveals that a suit had been filed for declaration that action initiated by the defendants /appellants under Section 17,HUDA 2 of 12 Neutral Citation No:=2023:PHHC:071032 RSA-2586-2016 (O&M) [3] 2023:PHHC:071032 Act 1977 in respect of showroom No.29, Sector 11, Panchkula was without jurisdiction, nonest and of no legal consequence on account of being in violation of the provisions under the HUDA Act 1977 and the Rules and Regulations framed thereunder. Prayer was for permanent injunction for restraining the defendants from resuming the aforesaid showroom by invoking the provisions of Section 17, HUDA Act, 1977 ibid.

[5] The aforementioned civil suit was dismissed vide judgment dated 24.09.2013. However, appeal filed by the plaintiffs / respondents was allowed by the learned District Judge vide judgment and decree dated 05.05.2015. The learned Appellate Court deliberated whether there were violations of sanctioned site plan and zoning plan by the allottee while raising construction / raising illegal or unauthorized construction prohibited under the HUDA Act, 1977 and Regulations of 1979 and as to what action could be initiated against the allottee and under which provision of law and by referring to the decision of this Court in Haryana Urban Development Authority and another vs. Vipin Sharma and another, 2009 (3) RCR (Crl), 695which was a case pertaining to notices served upon other allottees for similar violations, held that in case there were violations of the building or site plan on account of raising constructions by the allottee, the only remedy available to HUDA was to proceed under Section 55 HUDA Act, 1977 and not under Section 17 HUDA Act, 1977 and if such order was challenged before the Civil Court, jurisdiction of the Civil Court was not barred as the impugned notice was without jurisdiction and action initiated in violation of the provisions of the HUDA Act. Learned District Judge also relied upon the decision of this Court in Haryana Urban 3 of 12 Neutral Citation No:=2023:PHHC:071032 RSA-2586-2016 (O&M) [4] 2023:PHHC:071032 Development Authority and Another vs. Escon Builders Limited, 2014 (1) PLR 732 in which the plea raised by HUDA was that the suit was premature. However, the said plea was not accepted while observing that since the very basis of the action initiated being against the HUDA Act and without jurisdiction, the Civil Court had the jurisdiction to set aside the notice and consequent proceedings and that no law to the contrary having been shown rather it also having been alleged that a Special Leave Petition filed before Hon'ble the Supreme Court against the judgment of the Hon'ble High Court in Haryana Urban Development Authority and another vs. Vipin Sharma and another (Supra) had also been dismissed by Hon'ble Supreme Court. Learned District Judge also took into account the submissions on behalf of HUDA that even if the allottee failed to show cause or refused to remove the violation as per notice under Section 55, HUDA Act, 1977, it had the authority to resume the building but observed that the same should be the last resort even if permissible in view of the law laid down by the Full Bench of this Court in Dheera Singh vs. UT Chandigarh Admn. and others, 2012 (4) RCR (Civil) 970 in which the Hon'ble Full Bench held that in case of violations of building bye-laws, the competent authority including the Estate Officer had to follow the procedure as per the directions contained in paragraph Nos.81, 82 and 87 of the judgment and that in paragraphNo. 81, Hon'ble the Full Bench had observed that first of all the competent authority had to decide who was responsible for the misuse of the premises and if such violations were made by the tenant, then the owner and allottee could not be held guilty for the violations of building bye-laws and if such was the situation, the Estate Officer was required to keep the resumption proceedings in abeyance till proceedings 4 of 12 Neutral Citation No:=2023:PHHC:071032 RSA-2586-2016 (O&M) [5] 2023:PHHC:071032 for eviction of the tenant initiated by the landlord on account of violations but where such premises were being used by the tenant with a tacit understanding or in connivance with the landlord, the Estate Officer could initiate action after giving such finding while in paragraph No. 87 of the judgment, the Hon'ble Full Bench observed that resumption should be the last resort and should not be ordered unless the wrongdoer had been penalized to the maximum firstly.

[6] In paragraph No.24 of the judgment, the learned District Judge observed that as per the report of the Enforcement Staff, the illegal constructions i.e. tin sheds in the rear courtyard had been removed and that in the circumstances, HUDA had no basis to initiate further proceedings. Accordingly, taking into account that the pre-requisite for 5 of 12 Neutral Citation No:=2023:PHHC:071032 RSA-2586-2016 (O&M) [6] 2023:PHHC:071032 taking action under Section 17 HUDA Act, 1977, namely of taking out proceedings under Section 55 HUDA Act, 1977 not having been initiated and the said aspect not having been considered by the learned trial Court, the appeal was accepted and the action initiated by the respondent- HUDA as per impugned notice and subsequent proceedings under the provisions of Section 17 HUDA Act, 1977 were held to be without jurisdiction and liable to be set aside. Accordingly, impugned judgment and decree of the learned trial court was set aside while observing that if the respondent-HUDA still found any violation of the building bye-laws and regulations 1979, it had every right to initiate proceedings under Section 55 HUDA Act, 1977 as per the procedure provided thereunder. [7] Learned counsel for the appellants has not been able to controvert the requirement to take action under Section 55, HUDA Act, 1977 ibid as a pre-requisite to the taking of action under Section 17 HUDA Act, 1977 ibid. He, however, contends that the Civil Court had no jurisdiction to entertain the civil suit in view of Section 50 of the HUDA Act, 1977. Sections 17, 50 and 55 of the HUDA Act, 1977 are reproduced as under:-

"This conclusion, however, does not necessarily mean that the plea against the validity of the order passed by the District Magistrate, or the Commissioner, or the State Government can never be raised in a Civil Court. In our

10 of 12 Neutral Citation No:=2023:PHHC:071032 RSA-2586-2016 (O&M) [11] 2023:PHHC:071032 opinion, the bar created by the relevant provisions of the Act excluding the jurisdiction of the Civil Courts cannot operate in cases where the plea raised before the Civil Court goes to the root of the matter and would, if upheld, lead to the conclusion that the impugned order is nullity." [9] Learned counsel for the appellants has not been able to controvert the requirement to take action under Section 55, HUDA Act, 1977 ibid as a pre-requisite to the taking of action under Section 17 HUDA Act, 1977 ibid in view of the decision in Haryana Urban Development Authority and another vs. Vipin Sharma and another, 2009 (3) RCR (Crl.) 695,as per which in case of violation of building plan or site plan, remedy available to HUDA is to proceed under Section 55 HUDA Act, 1977 and not under Section 17. Since HUDA acted in violation of the provisions of the HUDA Act, 1977 itself, the Civil Court had the jurisdiction to hear and decide the matter in view of the Full Bench decision of this Court in Vinod Kumar's case (Supra). Further, it is only on giving notice u/s 55 HUDA Act, 1977 and the allottee failing to do the needful in terms thereof that action could be taken to resume the showroom as a last resort in view of the Full Bench decision of this Court in Dhera Singh vs. UT, Chandigarh Administration and others, 2012 (4) RCR (Civil) 970. The needful not having been done, the impugned action was rightly held to be unsustainable. [10] In the light of the position as well as judgments noted above, no circumstances exist warranting taking of a view different than that as taken by the learned District Judge. In the circumstances, no question of law much less substantial question of law arises for consideration in this Regular Second Appeal. The appeal is bereft of merit and is accordingly dismissed. However, it needs noticing that despite orders of this Court 11 of 12 Neutral Citation No:=2023:PHHC:071032 RSA-2586-2016 (O&M) [12] 2023:PHHC:071032 dated 24.05.2018, no affidavit of SDE (Survey) qua violations if any has been filed. However, to clarify, it is made clear that the appellants are at liberty to take action against the respondents in accordance with law in case any violation continues to exist in the showroom in question. [11] Appeal dismissed with the aforementioned directions. All misc. applications also stand dismissed.