Regular Second Appeal No.507 of 2010 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No.507 of 2010 Date of Decision:-13.7.2011 Municipal Council, Ambala Saddar, Ambala Cantt. ...Appellant Versus Ashok Kumar Jain and others ...Respondents CORAM: HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR Present:- Mr.Sanjay S.Chauhan, Advocate for the appellant. M ehinder S ingh S ullar , J . (Oral) The matrix of the facts, which requires to be noticed for the limited purpose of deciding the sole controversy, involved in the instant appeal and emanating from the record, is that Ashok Kumar Jain son of P.K.Jain respondent No.1-plaintiff (for brevity “the plaintiff”) purchased the property bearing No.125/1, situated at Lawrence Road (Maharani Jhansi Marg), Ambala Saddar, Ambala Cantt., vide sale deed dated 4.2.1980 and since then, he is owner and in possession of the same. The other half share of the property bearing No.125 belongs to one Om Parkash. The plan submitted by Om Parkash, owner of other half property, for construction of the house was sanctioned/approved by the Municipal Council, Ambala Saddar (for short “the MC”), but the site plan submitted by the plaintiff was rejected at the first instance on illegal grounds. Thereafter, he submitted another plan for sanction and after great persuasion, the same was sent to the Building and Works Committee. Ultimately, the Building Committee found the site plan in order and recommended its sanction. Consequently, the MC, by way of resolution bearing No.60/57 dated 4.12.1997, sanctioned the plan of the plaintiff, but subsequently, in the wake of political pressure, the same was not delivered to him. It was explained that thereafter the Regular Second Appeal No.507 of 2010 -2- Deputy Commissioner, Ambala, by means of impugned order dated 10.12.1997 illegally suspended the execution of the resolution. 2. Sequelly, the plaintiff challenged the impugned suspension order dated 10.12.1997 passed by the DC and filed the suit for a decree of declaration against the MC and other defendants, inter-alia pleading that the aforesaid impugned order of suspension of sanction/approval is illegal, null and void, inoperative and against the statutory provisions. 3. The defendants contested the suit and filed their respective written statements, inter-alia pleading certain preliminary objections of, maintainability of the suit, cause of action and locus standi of the plaintiff. The defendants claimed that plaintiff has only occupancy right in the suit property and its ownership vests in the State of Haryana. However, it was admitted that the site plan of the building was first rejected, but subsequently, it was sanctioned by the elected members without adopting the proper procedure. The DC was stated to have rightly suspended the resolution/sanction of the site plan of the plaintiff. It will not be out of place to mention here that the defendants have stoutly denied all other allegations contained in the plaint and prayed for dismissal of the suit. 4. Controverting the allegations of the written statements and reiterating the pleadings contained in the plaint, the plaintiff filed the replications. In the wake of pleadings of the parties, the trial Court framed the essential issues depicted in its judgment for proper adjudication of the case. 5. In order to substantiate their respective pleaded stands, the parties to the lis, produced on record the oral as well as documentary evidence. 6. The trial Court, after taking into consideration the entire material on record, decreed the suit of the plaintiff and set aside the order dated 10.12.1997 of the DC, being null and void and against the principle of natural justice, by virtue of impugned judgment and decree dated 21.8.2008. 7. Aggrieved by the decision of the trial Court, the defendant-MC filed Regular Second Appeal No.507 of 2010 -3- the appeal, which was dismissed as well, by the Ist Appellate Court, through the medium of impugned judgment and decree dated 15.6.2009. 8. The appellant-MC still did not feel satisfied with the impugned judgments and the decrees of the Courts below and instituted the present appeal. 9. After hearing the learned counsel for the appellant-MC, going through the record with his valuable assistance and after considering the entire matter deeply, to my mind, there is no merit in the present appeal in this context. 10. Ex-facie the argument of learned counsel that since the DC has the power under section 246 of the Haryana Municipal Act, 1973 (hereinafter to be referred as “the MC Act”), so, the Courts below committed a legal mistake in decreeing the suit filed by the plaintiff, sans merits. 11. What is not disputed here is that the site plan of the plaintiff for construction of his house was sanctioned by the MC, by means of resolution No.60/57 dated 4.12.1997, but the same was suspended by the DC, vide order dated 10.12.1997. 12. Above being the position on record, now the core question, though important that arises for determination in the instant appeal, is as to whether the DC has the power to suspend the resolution/sanction of the site plan of the plaintiff or not? 13. Having regard to the contention of the learned counsel for the MC, to me, the answer must obviously be in the negative, as the DC did not have the authority to suspend the resolution, in exercise of powers under section 246 of the M.C.Act, that too, without issuing any notice, affording any opportunity of being heard and at the back of plaintiff. 14. As is clear that section 246 of the MC Act postulates that “the DC has the power to suspend the resolution of the committee, if, in his opinion, the resolution, order or act, is in excess of the powers conferred by law or contrary to the interests of the public or likely to cause waste or damage of municipal funds or Regular Second Appeal No.507 of 2010 -4- property, or the execution of the resolution or order, or the doing of the act, is likely to lead to a breach of the peace, to encourage lawlessness, or it causes injury or annoyance to the public or to any class or body of persons.” 15. A conjoint reading of this provision would reveal that the DC has only the power to suspend the resolution on the grounds depicted in section 246 of the M.C.Act and not otherwise. Admittedly, as none of the indicated grounds was attracted, therefore, the DC slipped into a legal error in suspending the sanctioned building plan of the plaintiff in this relevant connection. Thus, the contrary contentions of the learned counsel for the MC “stricto sensu” deserve to be and are hereby repelled under the present set of circumstances. 16. Moreover, the trial Court has rightly decreed the suit of the plaintiff, by virtue of impugned judgment and decree dated 21.8.2008. Not only that, the decision of the trial Court was affirmed by the first appellate Court, by means of impugned judgment dated 15.6.2009, the operative part of which is (para 14) as under:- “Other things apart. One thing which is conspicuous is that the Deputy Commissioner had passed the order suspending the resolution, passed by Municipal Council, granting permission to respondent No.1, without hearing respondent No.1. Even it is assumed for the sake of arguments that the Deputy Commissioner had the jurisdiction to suspend the resolution, he could not do it without hearing respondent No.1. However, admittedly respondent No.1 was not heard in the matter by the Deputy Commissioner before the latter passed the order suspending the resolution. Certainly, there was infraction of the principles of natural justice by the Deputy Commissioner in suspending the resolution without giving hearing to respondent No.1. Be that as it may, under Section 246 of Haryana Municipal Act, the Deputy Commissioner could pass the order on the following grounds:- (1)In excess of the powers conferred under the Act on the Municipal Committee; (2)Contrary to the interests of public; (3)Likely to cause waste or damage of Municipal funds or property; (4)Execution of the resolution or order, or the doing of the act, is likely to lead to a breach of peace, to encourage lawlessness or it causes injury or annoyance to the public or any class or body of persons. However, none of these grounds existed and as such, the Deputy Commissioner was not competent to suspend the resolution. Mr.Kailash Goel, tried to place reliance on an order passed by Hon'ble High Court in M/s Ganga Ram & Sons Vs. State of Haryana etc. in CWP No.5024 of 1992, I am of the considered view that the order is not applicable. Regular Second Appeal No.507 of 2010 -5- In M/s Ganga Ram's case (supra), there was dispute as to whether the petitioner in that case had a title to the property or not ? Petitioner had invoked the jurisdiction of the Hon'ble High Court and the Hon'ble High Court held that such disputed questions could not be entertained in writ jurisdiction. On the other hand, Mr.Jain, learned counsel for respondent No.1, relying upon Rajinder Garg Vs. Municipal Committee Patiala, through the Administrator and another, (1989-1), The Punjab Law Reporter, 415; Surant Municipal Corporation and another Vs. Bhikhabhai Morarbhai Patel and others, 1994, AIR, 122 argued that once a permission had been granted by the Municipal Committee, it cannot be withdrawn. I am of the considered view that even if we view the matter from any angle, the order passed by the Deputy Commissioner is not sustainable under the law.” 17. Meaning thereby, the Courts below have taken into consideration and appreciated the entire relevant evidence brought on record by the parties in the right perspective. Having scanned the admissible evidence in relation to the legal position, the trial Court as well as the first Appellate Court has recorded the concurrent findings of fact that the DC has no power to suspend the resolution/sanctioned site plan of the plaintiff. Such pure concurrent findings of fact based on the appraisal of evidence, cannot possibly be interfered with by this Court, while exercising the powers conferred under section 100 CPC, unless and until, the same are illegal and perverse. No such patent illegality or legal infirmity has been pointed out by the learned counsel for the appellant, so as to take a contrary view, than that of well reasoned decision already arrived at by the Courts below, in this respect. 18. No other meaningful argument has been raised by the learned counsel for the appellant to assail the findings of the Courts below in this regard. All other arguments, relatable to the appreciation of evidence, now sought to be urged on behalf of the appellant, in this relevant direction, have already been duly considered and dealt with by the Courts below. 19. In this manner, the entire matter revolves around the re-appreciation and re-appraisal of the evidence on record, which is not legally permissible and is beyond the scope of second appeal. Since no question of law, muchless substantial, is involved, so, no interference is warranted, in the impugned judgments/decrees of Regular Second Appeal No.507 of 2010 -6- the Courts below, in view of the law laid down by Hon'ble Apex Court in case Kashmir Singh v. Harnam Singh & Anr. 2008 (2) R.C.R. (Civil) 688 : 2008 AIR (SC) 1749 in the obtaining circumstances of the present case. 20. No other legal point, worth consideration, has either been urged or pressed by the learned counsel for the appellant. 21. In the light of aforementioned reasons, as there is no merit, therefore, the instant appeal is hereby dismissed as such. (Mehinder Singh Sullar) 13.7.2011 Judge AS Whether to be referred to reporter?Yes/No