RSA No.2053 of 2008 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.2053 of 2008 (O&M) Date of Decision: 27.4.2010 State of Haryana and another ..Appellants. Vs. Vijay Kumar Jain and another ..Respondents. CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR JAIN Present: Mr.S.S.Chauhan, Advocate for the appellants. Mr.T.S.Dhindsa, Advocate for the respondents. RAKESH KUMAR JAIN, J.(Oral) The defendants are in second appeal against the judgment and decree of both the Courts below whereby the suit filed by the plaintiffs for declaration and permanent injunction has been decreed. A few skeletal facts to unfold the dispute between the parties are required to be noticed. The pleaded case of the plaintiff is that the property bearing survey No.207/4593 measuring 3.42 acres known as Ahluwalia Building, Ambala Sadar, Ambala Cantt. was the property of Rameshwar Dass and Rattan Lal sons of Ram Sarup Ahluwalia which was also subject to municipal tax bearing No.6340. The said persons were duly confirmed as owners by virtue of decree dated 19.10.1982 passed in Civil Suit No.22/6 of 1979 by the Court of Sh.N.L.Pruthi, the then Sub Judge, Ist Class, Ambala Cantt. The said owners of the property in question, in order to sell the RSA No.2053 of 2008 (O&M) -2- property, obtained `No Objection Certificate' on 23.1.1992 and executed the sale deed in favour of the plaintiffs on 24.1.1992 against a valuable consideration of Rs.75,000/-. Having become the owners, the plaintiffs applied for sanction of mutation in their favour which was duly granted by defendant No.2. Subsequently, they applied to defendant No.2 for sanction of site plan for raising construction after depositing the requisite fee along with site plan on 13.1.1998. The site plan was neither rejected nor accepted by defendant No.2 within the statutory period of sixty days as provided under Haryana Municipal Act, 1973, therefore, it was presumed that the site plan has been sanctioned after the expiry of 60 days. Defendant No.2 passed resolution No.57 dated 24.8.1998 sanctioning the site plan submitted by the plaintiffs who collected the building material on the property in question for the purpose of raising construction but the officials of defendant No.2 stopped the plaintiffs from raising construction claiming that the Deputy Commissioner, Ambala exercising the superintending powers under Section 246 of the Haryana Municipal Act, 1973 has suspended Resolution No.57 dated 24.8.1988. This gave a cause of action to the plaintiffs to file the present suit for declaration and injunction not to restrain the plaintiffs from raising construction over the property in dispute. Upon notice, the defendants contested the claim of the plaintiffs and besides taking preliminary technical objections, it was alleged on merits, that Government of Haryana is the owner of the property in dispute and only the occupancy rights are with the plaintiffs. The decree dated 19.10.1982 in Civil Suit No.22/6 of 1979 is not binding upon defendant No.1 as defendant No.1 was not a party to the lis and the execution of Resolution No.57 dated 24.8.1998 has been suspended due to the fact that as per Clause 20 of the Excision RSA No.2053 of 2008 (O&M) -3- Agreement dated 5.2.1977, the land which falls in B-3 category has to be kept open and cannot be constructed. It was alleged that defendant No.2 has exceeded his powers. In the written statement filed by defendant No.2, the similar stand was taken as that was taken by defendant No.1. The plaintiffs filed replication reiterating and reasserting the stand taken in the plaint and controverting the stand taken by the defendants in their written statements. On the pleadings of the parties, the following issues were struck of on 12.4.2002 : (i)Whether the order dated 22.9.1998 and 28.10.1998 are illegal and liable to be set aside? OPP. (ii)Whether the plaintiffs are entitled to compensation of Rs.2 lacs? OPP. (iii)Whether the suit is bad for non joinder of necessary parties? OPD. (iv)Whether the notice under Section 80 CPC is invalid? OPD. (v)Whether alternate remedies are available with the plaintiff? OPD. (vi)Relief. Both the parties led oral as well as documentary evidence in support of their case. After appreciating all the evidence, the learned trial Court while deciding issue No.1, observed as under : “The order of the Deputy Commissioner is Ex.P7 and the perusal of the same shows that the same has been passed by the Deputy Commissioner exercising the powers under Section 246 of the Haryana Municipal Act, 1973 as the plaintiffs had intention to raise construction on open land in violation of Clause 20 of the Excision Agreement. As per Clause 20 of the Excision Agreement, such areas as may be indicated by the Govt. of India shall be kept free from construction by the NAC and State Govt. as open space. These areas as mentioned in Clause 20 of the Excision Agreement have been specified in RSA No.2053 of 2008 (O&M) -4- Clause 8(3) of the By laws of the Cantonment Board and as per that, no building whatsoever shall be erected in the area specified in schedule-3. Perusal of schedule 3 shows that the survey number of the plaintiffs is not mentioned in that schedule.” Ultimately the decree was passed to the effect that “It is ordered that the suit of the plaintiffs stands decreed with costs. It is ordered that orders dated 22.9.1998 and 28.10.1998 by defendants are illegal, null and void and without jurisdiction and are not binding on the plaintiffs. The defendants are restrained permanently from making interference in raising of constructions by the plaintiffs, in accordance with sanctioned site plan on the property bearing Survey No.207/4593, situated in Ahluwalia Building, Ambala Cantt. Aggrieved defendants filed first appeal under Section 96 of the Code of Civil Procedure, 1908 (for short `CPC') in which primarily findings on issue No.1 were challenged. The learned first Appellate Court rejected the arguments raised by the defendant/appellant herein by observing as under : “After hearing both the sides and perusing the lower Court file, I am of the considered opinion that there is no merit in the various contentions raised on behalf of the defendants/appellants. The learned Deputy Commissioner, Ambala, vide his order dated 22.9.1998, suspended resolution no.57 dated 24.8.1998, passed by defendant/appellant No.2 on the ground that as per Clause 20 of the Excision Agreement dated 5.2.1977, the land in question was B3 category and the same was open land and no construction could be allowed to be raised on the same. The copy of the Excision Agreement dated 5.2.1977 is Mark A on the lower Court file. The clause 20 thereof says that such areas as may be indicated by the RSA No.2053 of 2008 (O&M) -5- Government of India shall be kept free from construction by the NAC and State Government as open spaces.” However, there is nothing on the file to prove as to what areas were indicated by the Government of India in terms of said clause 20 which were to be kept free from construction by the NAC or the State Government, as open spaces. Therefore, there is nothing to say that the land in question was to be kept as open space and no construction could be allowed to be raised on the same. Therefore, it follows that order of the learned Deputy Commissioner, Ambala dated 22.9.1998, is based on no material because, the land in question has not been specified or indicated by the government of India for being kept free from construction. The learned trial Court appreciated the entire oral as well as documentary evidence and held the impugned order dated 22.9.1998, passed by the learned Deputy Commissioner, Ambala, as illegal. In view of the above, I find no ground to take a different view. The facts of the authority relied upon by the learned counsel for the defendants/appellants are distinguishable because land in that case was public property or chowk, which is not the position in the present case. Accordingly, findings recorded by the learned trial Court on issue No.1 are affirmed.” Unsuccessful but unfazed defendants are in second appeal which was filed along with application for condonation of delay in refiling which was condoned and on 27.8.2009 and following order was passed: “Learned counsel for the appellants has produced copy of No Objection Certificate dated 23.1.1992, wherein no objection was granted for transfer of occupancy rights only. Therefore, in terms of Clause 8(iii) of the Bye laws of Cantonment Board, no building can be permitted to be erected in the area specified in Schedule III, i.e. the area in which the property in dispute is situated. Notice of motion for 8.10.2009. Records be also requisitioned. RSA No.2053 of 2008 (O&M) -6- In the meantime, no further action shall be taken on the basis of the impugned judgment and decree passed by the Courts below.” Thereafter, during the course of hearing, counsel for the respondents has submitted that in survey No.207/4593, total area is 3.42 acres in which land owned by the respondent is already shown as 6380/18. It is claimed that the entire area has already been constructed as more than 100 houses are already in existence and this area is popularly known as Ahluwalia Buildings. However, the case of the appellant is that no permission for construction can be given and the Deputy Commissioner has rightly suspended the Resolution of the Municipal Committee. Learned counsel for the appellants further submits that contention of the counsel for the respondents is totally wrong. An affidavit of the Executive Officer/Secretary of the Municipal Committee, Ambala Cantt. was asked to be filed, within two weeks, with specific averments as to whether survey No.207/4593 total area measuring 3.42 acres is constructed or not and if it is constructed then what is the extent of construction. Adjourned to 16.2.2010. In terms of the aforesaid direction, an affidavit of B.R.Dhiman, Secretary, Municipal Council, Ambala Cantt. dated 23.2.2010 was filed which was taken on record vide order of the same date. Learned counsel for the respondents has drawn the attention of the Court to para 7 of the affidavit which reads thus: “It is humbly submitted before this Hon'ble High Court, there is almost 100% construction in the Ahluwalia building, which is permissible whereas in the present case this land in dispute is different from the other municipal nos mentioned in GLR and was kept vacant in the original layout plan. Hence, the site plan of the respondent was rejected twice by the Municipal Council, RSA No.2053 of 2008 (O&M) -7- Ambala Cantt.” The respondents had also filed an application bearing CM No.3291-CI of 2010 under Section 151 CPC in order to place on record certain photographs in order to show the extent of construction in the alleged Ahluwalia Building. The said documents were taken on record. Similarly, the appellants have also filed CM No.3317 and 3318-C of 2010 in order to place on record certain documents which do not co-relate with the pleadings of the defendants. This Court finds that these documents cannot be taken on record. Opening his argument, counsel for the appellants has submitted that in terms of Section 100 CPC, substantial question of law involved in this appeal is only one, which is as follows: “Whether land B-3 in question may be held by a private person but that would not change the nature of land?” In fact the entire emphasis of the defendants/appellants in this appeal is to the effect that the area which is in dispute can be occupied by the plaintiffs but it cannot be constructed in view of GGO (Excision agreement) dated 5.2.1997. In this regard, counsel for the appellants has drawn the attention to GGO (Excision agreement) dated 5.2.1977 much less Clause XX which reads as under : “Such open area shall be kept free from construction” On a pointed question put to the counsel for the appellants as to whether the Government of India has indicated any such area much less the area in dispute to be kept free from construction by NAC. In this regard, counsel for the appellants has submitted that said link is missing as he is unable to answer the query of the Court to the effect as to whether the Government of India or State Government has passed some order to keep RSA No.2053 of 2008 (O&M) -8- the area in question as an open space. He has only relied upon Annexure A-1 i.e. which according to him is survey sheet, which is photostat copy and is not signed by any Authority, therefore, this document cannot be taken into consideration for the purpose of deciding the appeal. Learned counsel for the respondents has submitted that at the time of notice of motion, the appellant has impressed upon the Court that as per Clause 8(iii) of the Building Bye laws in Ambala Cantonment, no building whatsoever can be erected in the area specified in Schedule (iii) whereas on a perusal of Building Bye laws with regard to erection or re-erection of buildings in the Ambala Cantt, framed by the Cantonment Board Ambala, in exercise of the powers conferred by Section 186 of the Cantts Act, 1924 the Schedule (iii) provides survey numbers in which survey number in dispute i.e. 207/4593 is conspicuous by its absence, therefore, the argument raised at the time of notice of motion, does not survive. It appears that the appellants have been fighting this litigation without the help of any documentary evidence in order to harass the plaintiffs. In view of the above discussion, I do not find any merit in the appeal as no question of law much less substantial is involved as envisaged under Section 100 of CPC. Therefore, the present appeal is devoid of any merit and is hereby dismissed but without costs. (Rakesh Kumar Jain) 27.4.2010 Judge Meenu