RSA No. 850 of 2007 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 850 of 2007 Date of Decision: 12.10.09 Virender Singh son of Manphool Singh resident of Mohalla Shivji Nagar (Dakotan) town Narnaul, Tehsil Narnaul, District Mahendergarh (Haryana). ... Appellant Versus 1. Municipal Council, Narnaul, through President, Municipal Council, Narnaul. 2. Municipal Council, Narnaul, through Secretary. 3. Deputy Commissioner, District Mahendergarh at Narnaul. 4. Director, Local Body, Haryana, Chandigarh, Government of Haryana. 5. Government of Haryana, through Financial Commissioner and Secretary, Local Body, Haryana, Civil Secretariat, Chandigarh. 6. Udmi Ram, Advocate, Narnaul. ...Respondents CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. R.S. Sangwan, Advocate, for the appellant. Mr. Sanjay Chauhan, Advocate, for respondents No. 1 and 2. Ms. Rajat Goyal, Assistant Advocate General, Haryana, for respondents No. 3 to 5. Name of respondent No. 6, already deleted, from the array of respondents. RSA No. 850 of 2007 2 SHAM SUNDER, J. * * * * This appeal, is directed, against the judgment and decree, dated 17.11.97, rendered by the Court of Additional Civil Judge (Senior Division), Narnaul, vide which, it dismissed the suit of the plaintiff, and the judgment and decree, dated 14.10.06, rendered by the Court of Additional District Judge, Narnaul, vide which, it dismissed the appeal. 2. The plaintiff/appellant, claimed himself to be the owner in possession of the house, in dispute, situated in Mohalla Shivaji Nagar (Dakotan), Narnaul, which he constructed, after getting sanctioned the plan from the Municipal Committee, Narnaul. It was stated that some persons, made a complaint, to the Municipal Committee, Narnaul, against the plaintiff, with regard to the encroachment, on the public road. It was further stated that the plaintiff, came to know that a notice, under Sections 181, 208, and 209 of the Haryana Municipal Act, was issued, on 20.03.92, but the same was never received by him. It was further stated that the plaintiff again came to know that another notice under Section 235 of the Municipal Act, was issued to the plaintiff, on 20.04.92, but the same too had not been received by him so far. It was further stated that, when the plaintiff, came to know that defendant No. 1, obtained the Police help, for demolishing his house, without giving the requisite notice under Section 183 of the Haryana Municipal Act, he moved an application, to the Deputy Commissioner, RSA No. 850 of 2007 3 Naruaul, on 25.04.92, to the effect that, if there was any encroachment, on the land, whereon, his house was constructed, then he was ready to purchase the same, at the Collector rate, but the same, was rejected, on 24.09.97, by the Director Local Bodies, Haryana, Chandigarh. It was further stated that a Civil Writ Petition No. 17735 of 1997, was filed by the plaintiff, in the High Court, which was disposed of, allowing him, to challenge the rejection order, by way of amendment, in the plaint. Consequently, the plaintiff, sought amendment, in his plaint, challenging the order of rejection, and incorporate respondents No. 4 and 5, in the array of the parties. It was further stated that, vide order dated 02.02.01, the application for amendment of plaint, was allowed. It was further stated that during the pendency of appeal, Sh. U.R. Aggarwal, Advocate, filed an application, under Order 1 Rule 10 of the Code of Civil Procedure, which was allowed, vide order dated 03.04.01, as a result whereof, he was made a party to it. It was further stated that, in the aforesaid Writ Petition, Sh. U.R. Aggarwal, Advocate, was also a petitioner, who was sold the land of culvert (Aabchak), measuring 70 sq. yards, @ Rs. 200/- per sq. yard, which was lying, at a distance of only 40 feet, in front of the house of the plaintiff, in the same locality, but similar request, made by the plaintiff, with regard to the sale of the land, in dispute, was turned down. It was further stated that, since the land, in dispute, measuring 11 sq. yards of the alleged encroachment, was not being used by the Municipal Committee, the order of rejection, was arbitrary, discriminatory, and RSA No. 850 of 2007 4 not binding, on the rights of the plaintiff. It was further stated that the Deputy Commissioner, Narnaul, as well as the Municipal Committee, Narnaul, made a recommendation for the sale of the encroached land @ Rs. 1500/- per sq. yard. It was further stated that the main gate of the house of the plaintiff, in front whereof, he had built up steps, for ingress and egress opened towards the disputed land. It was further stated that no flow of water was obstructed and no harm was being caused, to the public, at large. It was further stated that the land of culvert, was also sold to Rama Nand Radhey Shyam, a religious trust @ Rs. 130/- per sq. yards. The defendants, were many a time asked, to accede to the request of the plaintiff, with regard to the sale of the aforesaid land, to him, but to no avail. Ultimately, a suit for permanent injunction, was filed. 3. Defendants No. 1 to 5, put in appearance, and filed written statement, wherein, they took up various objections, and contested the suit. It was stated that, on the northern side of the house of the plaintiff, there was no courtyard, except a thoroughfare and a drain. It was denied that two storyed building, was raised by the plaintiff, with the permission of the Municipal Committee, on the land, in dispute. It was further stated that, since the plaintiff, raised construction, over the drain, belonging to the Municipal Committee, notice under Sections 181, 208 and 209 of the Haryana Municipal Act, was issued, to him, on 27.03.92, but the former, refused to accept the same. It was further stated that the plaintiff, was again served with a notice under Section RSA No. 850 of 2007 5 235 of the Haryana Municipal Act, but to no avail. It was further stated that the plaintiff, had virtually accepted his encroachment, over the drain and the public way, in the map, submitted by him. It was further stated that, on 20.08.92, the Municipal Committee, swung into action, and with the help of local Police, got demolished a Chabutra, constructed by the plaintiff, near his house, on the land, in dispute. It was further stated that the plaintiff, being working as an ADA, in Narnaul Courts, misused his powers, and encroached upon the drain, as well as the public way. It was further stated that the plaintiff, admitted his encroachment, over the drain and the public way, while submitting his application, for purchasing the encroached land. It was further stated that the question of selling the land, in dispute, in favour of the plaintiff, did not at all arise, as the application, was given under the Municipal Common Lands Act, 1976, which stood repealed by a full Bench of this Court. It was further stated that, in terms of the letter, issued by the Local Government Department dated 6/7.02.85, if there is an encroachment, before the building line or any public amenity, provided by the Municipal Committee, such land, could not be sold. It was further stated that, after obtaining sanction, the plaintiff, reconstructed the first floor of his house, and, under the garb thereof, encroached upon the drain and the public way. It was denied that Sh. Udmi Ram Aggarwal, Advocate, made any encroachment upon the land, measuring 200 sq. yards, and, the plaintiff, was also entitled to purchase the land, in dispute, at the same rate, as was sold to the RSA No. 850 of 2007 6 former. It was further stated that there was no mosque, on the court yard of the land, encroached upon by the plaintiff. It was further stated that the plaintiff, had no cause of action to file the suit. It was further stated that the plaintiff, was not specific, in challenging the notice, issued by the Municipal Committee, Narnaul. It was further stated that, since the portion ABCD, in dispute, was not owned by the plaintiff, as the same was a part of the drain and the public way, the construction raised thereon, was liable to be get removed. It was further stated that the plaintiff, could not be permitted to perpetuate his encroachment, and the defendants, were entitled to special costs, to the tune of Rs. 3,000/-. It was further stated that the suit, was not maintainable, as the requisite notices under Section 80 of the Code of Civil Procedure and Section 52 of the Haryana Municipal Act, were not served, upon the defendants, by the plaintiff. It was further stated that owing to the encroachment, made by the plaintiff, over the drain and the public way, the drainage system of some adjoining areas, was badly affected. It was further stated that the said encroachment, being a source of danger to the houses, situated in the vicinity, was liable to be removed, in the interest of public, at large. The remaining averments, were denied, being wrong. 4. Defendant No. 6, filed a separate written statement, wherein, he took up similar objections, as were taken up by the other defendants, in their written statement. It was stated that there was a drain and a public road, belonging to the Municipal Committee, RSA No. 850 of 2007 7 towards the northern side of the house of the plaintiff. It was denied that any false complaint was made. 5. On the pleadings of the parties, the following issues were struck:- (i) Whether the plaintiff is owner in possession of the suit land that is alleged encroachment as alleged? OPP (ii) If issue No. 1, is not proved, whether Municipal Committee, is bound to sell the same to plaintiff as alleged? OPP (iii) Whether Municipal Committee has got right to remove the alleged encroachment? OPD (iv) Whether the suit of the plaintiff is not maintainable as alleged? OPD (v) Relief. 6. After hearing the Counsel for the parties, and, on going through the evidence, on record, the trial Court, dismissed the suit of the plaintiff. 7. Feeling aggrieved, an appeal was preferred, by the plaintiff/appellant, which was also dismissed, by the Court of Additional District Judge, Narnaul, vide judgment and decree dated 14.10.06. 8. Still feeling dissatisfied, the instant Regular Second Appeal, has been filed by the plaintiff/appellant. 9. I have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully. 10. The Counsel for the appellant, submitted that, an RSA No. 850 of 2007 8 application under Order 41 Rule 27 of the Code of Civil Procedure, was filed, by the plaintiff/appellant, before the first Appellate Court, but the same, was not decided by it. He further submitted that the additional evidence, sought to be produced, by the plaintiff/appellant, was essential, for the just decision of the case. He further submitted that, on account of non-decision of that application, the plaintiff/appellant, was prejudiced, to a great extent. He further submitted that there was only minor deviation, on the part of the plaintiff/appellant, from the site plan, got sanctioned by him. He further submitted that there was an encroachment, on the Municipal land, on the part of the plaintiff/appellant, only to the extent of 11 sq. yards, which could very well be compounded, by the Municipal Committee, by obtaining the composition fee. He further submitted that the Municipal Committee, compounded the encroachment, on their property, made by some other persons of the town, by getting the composition fee, but the case of the appellant, was rejected, without any rhyme or reason. He further submitted that the evidence, sought to be produced, in respect of the sale of the property of the Municipal Committee, to Udmi Ram, which had been encroached upon, being essential, ought to have been allowed, by the first Appellate Court, but, it failed to do so. He further submitted that the Courts below, recorded perverse findings, on account of misreading and misappreciation of evidence, and, as such, the judgements and decrees, are liable to be set aside. RSA No. 850 of 2007 9 11. On the other hand, the Counsel for the respondents, submitted that the Courts below, recorded concurrent findings, that the plaintiff/appellant, had encroached upon some area of the Municipal Committee. They further submitted that, it is for the Municipal Committee, to compound the offence, or not but it cannot be forced to do so. They further submitted that the case of the plaintiff/appellant, was recommended by the Deputy Commissioner, to the higher authorities, for sale of the encroached land, but the same, was rejected. They further submitted that the Courts below, were right, in coming to the conclusion, that the plaintiff/appellant, being an encroacher, over the land of the Municipal Committee, was not entitled to the permanent injunction prayed for. They further submitted that the judgements and decrees of the Courts below, being legal and valid, are liable to be upheld. 12. Coming to the first submission of the Counsel for the appellant, that though, he filed an application under Order 41 Rule 27 of the Code of Civil Procedure, for additional evidence, yet the same, was not decided, it may be stated here, that the contention of the Counsel for the appellant, in this regard, cannot be said to be wholly correct. There is an order, copy whereof, is annexure A3, dated 14.10.06, passed by the first Appellate Court wherefrom, it is evident, that the applications under Order 1 Rule 10, Order 6 Rule 17, and Order 41 Rule 27 of the Code of Civil Procedure, were being disposed of. However, the last para of the order aforesaid, conveys the sense that RSA No. 850 of 2007 10 only the application under Order 6 Rule 17, was disposed of. Whatever the case may be, even if, it is assumed, that such an application, was not finally decided, by the first Appellate Court, this Court, is competent to decide the same, at this stage. In the application under Order 41 Rule 27 of the Code of Civil Procedure, filed, in the first Appellate Court, the plaintiff/appellant, stated that a few days ago, some land, had been sold, in favour of Udmi Ram, which belonged to the Municipal Committee, and, had been encroached upon by him. It was further stated that the property, in dispute, which was in the shape of a drain, had been levelled, and the owner of the house, on the eastern and western side of the house of the appellant, had constructed the drain, in front of the same. It was further stated that, now there was no obstruction, in draining out the water. 13. The application, was contested, by the respondents, on the ground, that the additional evidence, sought to be produced, was not essential, for the just decision of the case. 14. After going through the contents, contained in the application, under Order 41 Rule 27 of the Code of Civil Procedure, and hearing the Counsel for the parties, in my considered opinion, the same, is liable to be dismissed, for the reasons to be recorded, hereinafter. There is nothing, in the application, as to when, the property, which was under the possession of Udmi Ram, was sold, to him, by the Municipal Committee. If the Municipal Committee, sold some land, to Udmi Ram, that does not mean, that the land, which has RSA No. 850 of 2007 11 been encroached upon, by the plaintiff, should have also been sold, in his favour, by it. The additional evidence, sought to be produced, by the appellant, was not essential, for the just decision of the appeal, nor, was necessary, to enable the Court, to pronounce the judgement, in a proper manner. The application under Order 41 Rule 27 of the Code of Civil Procedure, being without merit, is dismissed. 15. Now coming to the merits of the appeal, it may be stated here, that the same, deserves to be dismissed, for the reasons to be recorded, hereinafter. In Madvan Nair Vs. Bhaskar Pillai (2005) 10, SCC, 533, Harjeet Singh Vs. Amrik Singh (2005) 12, SCC, 270, H.P. Pyarejan Vs. Dasappa, JT 2006(2), SC, 228, and Gurdev Kaur and others Vs. Kaki and others (JT 2006 (5) SC, 72, while interpreting the scope of Section 100 of the Code of Civil Procedure, the principle of law, laid down, was that the High Court, has no jurisdiction to interfere with the findings of fact, arrived at by the trial Court, and the first Appellate Court, even if, the same are grossly erroneous, as the legislative intention is very clear that the legislature never wanted second appeal to become a “third trial on facts” or “one more dice in the gamble.” It was further held that the jurisdiction of the High Court, in interfering with the judgments of the Courts below, is confined only to the hearing of substantial questions of law. The Courts below, on correct reading and due appreciation of the evidence produced, recorded concurrent findings, that the appellant, had encroached upon the land of Municipal Committee; that the Deputy Commissioner, RSA No. 850 of 2007 12 Narnaul, recommended the case of the appellant, for the sale of encroached land, under his possession, but the same, was rejected, by the Commissioner and Secretary, Department of Local Bodies, vide order PWP/B; and that an encroacher of a public street/drain, was not entitled to the injunction prayed for. No illegality or infirmity, could be pointed out, by the Counsel for the appellant, in the concurrent findings of facts recorded by the Courts below. The judgements and decrees of the Courts below, thus, being legal and valid, are liable to be upheld. The submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected. 16. No question of law, much less substantial, has arisen, in this appeal, for the determination of this Court. 17. For the reasons recorded above, the instant Regular Second Appeal, being devoid of merit, must fail, and the same is dismissed with costs. 12.10.2009 (SHAM SUNDER) Amodh JUDGE