RSA No. 4275 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 4275 of 2008 Date of Decision: 18.08.2009 1. Mahesh Kumar son of Bishamber Dayal; 2. Ram Bilas son of Radhey Shyam son of Chander Bhan; both r/o shop No. 43, Anaj Mandi, Bahadurgarh, Jhajjar. ... Appellants Versus 1. Municipal Council, Bahadurgarh, through its Secretary. 2. Market Committee, Bahadurgarh, through its Secretary. ...Respondents CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. Rakesh Nehra, Advocate, for the appellants. SHAM SUNDER, J. * * * * This appeal is directed against the judgement and decree dated 16.05.2006, rendered by the Court of Civil Judge (Junior Division), Bahadurgarh, vide which, it dismissed the suit of the plaintiffs, and the judgement and decree dated 30.07.2008, rendered by the Court of Additional District Judge, Jhajjar, vide which, it dismissed the appeal. 2. The plaintiffs/appellants, claimed themselves, to be the owners, in possession of shop bearing No. 43, situated at Fateh Mandi, RSA No. 4275 of 2008 2 Bahadurgarh. It was stated that the portion measuring 10'.6” x 46' and 5'.3” x 25', shown by letters ABCD and CEFG, in red colour, in the site plan, was built on kacha phad (kacha platform). It was further stated that the property, in dispute, was the ancestral property of the plaintiffs, and construction of the shop on the kacha phad, was 15/16 years old. It was further stated that since then they had been carrying on their business activities in the said premises. They also obtained electric connection and telephone connection, in the property, in dispute. It was further stated that the defendants/respondents, in collusion with each other, wanted to demolish the shop of the plaintiffs. They served a notice upon them, under Haryana Municipal Act, 1973. On receipt of the notice, the plaintiffs, visited the office of the defendants, and tried to convince them, that no construction in their shop was unauthorized or illegal. The defendants, however, did not pay any heed to the representation, made by the plaintiffs. It was further stated that the construction made in the year 1986, was neither unauthorized, nor over any public place, or public property, including the passage. It was further stated that the notice served upon the plaintiffs, for the demolition of the construction, was illegal. It was further stated that earlier civil suit bearing No. 54 of 1979, titled as 'Ram Kishan Vs. Administrator, Bahadurgarh Municipality', was filed, and the same was decreed on 01.12.81, by the Court of Sub Judge 1st Class, Rohtak, and in the said suit, the defendants, were restrained from interfering into peaceful possession of the plaintiffs, in respect of the construction raised by them, over the disputed site. The Municipal RSA No. 4275 of 2008 3 Committee, preferred an appeal, which was dismissed upto this Court. It was further stated that the said judgement, was binding upon the defendants. The defendants, were many a time, asked to withdraw the illegal notice, and refrain from demolishing the construction, in dispute, but to no avail. On their final refusal, left with no other alternative, a suit for permanent injunction, was filed. 3. Defendant/respondent No. 1, put in appearance, and filed written statement, wherein, it took up various objections, and contested the suit. It was pleaded that the suit was not maintainable. It was further pleaded that the suit was bad for mis-joinder of parties. It was further pleaded that the plaintiffs, had come to the Court, by concealment of material facts, and, as such, were not entitled to any relief. It was stated that the construction, in question, was made by the plaintiffs, on kacha phad, against the terms and conditions of the allotment and without getting a site plan sanctioned, from the defendants. It was further stated that, therefore, such construction, was illegal, and was liable to be removed, after issuance of the requisite notice under the Municipal Act. It was further stated that no construction, could be made, on the kacha phad, because the same was to be utilized by the general public for parking their tractors, trollies, carts etc. It was further stated that the notice issued, being legal and valid, the defendants, under the Municipal Committee Act, 1973, were entitled to demolish the construction. 4. Defendant No. 2, in separate written statement, also took up the same pleas, as were taken up by defendant No. 1, in its written RSA No. 4275 of 2008 4 statement. 5. On the pleadings of the parties, the following issues were struck:- (i) Whether the plaintiffs are owners in possession of shop measuring 10' 6” x 46' marked with letters ABCD and shop measuring 5' 3” x 25' marked with letters CEFG built on kachha phad of shop No. 43 situated at Fateh Mandi, Bahadurgarh as detailed in para No. 3 of the plaint? OPP (ii) Whether the notices issued by the defendants to the plaintiff under Haryana Municipal Act are illegal, null and void on the grounds as alleged in para No. 2 to 11 of the plaint? OPP (iii) Whether the plaintiff is estopped from filing the present suit by his own act and conduct? OPD (iv) Whether the suit of the plaintiffs is bad for want of notice under Section 52 of the Haryana Municipal Act, 1973? OPD (v) Whether the suit of the plaintiff is hit by the provisions of Section 10 of CPC and as such, is not maintainable in the present form? OPD (vi) Whether the suit of the plaintiffs is bad for mis-joinder of the necessary party? OPD (vii)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 plaintiffs. 7. Feeling aggrieved, an appeal was preferred, by the plaintiffs/appellants, which was dismissed by the Court of Additional RSA No. 4275 of 2008 5 District Judge, Jhajjar, vide judgement and decree dated 30.07.2008. 8. Still feeling dissatisfied, the instant Regular Second Appeal, has been filed by the plaintiffs/appellants. 9. I have heard the Counsel for the plaintiffs/appellants, and have gone through the record of the case, carefully. 10. The Counsel for the plaintiffs/appellants, submitted that the construction raised by the appellants, being very old, no legal notice, under the provisions of Municipal Act, 1973, could be issued, to them, for the demolition of the shop. He further submitted that the notice, could only be given, within a period of six months, from the date of raising the alleged unauthorized construction, by the plaintiffs, and not thereafter. He further submitted that the Courts below, recorded perverse findings, on account of mis-reading and mis-appreciation of evidence. He further submitted that the notices, were illegal and invalid. He further submitted that the judgements and decrees of the Courts below, being illegal, were liable to be set aside 11. After giving my thoughtful consideration, to the contentions, advanced by the Counsel for the plaintiffs/appellants, in my considered opinion, the appeal 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, RSA No. 4275 of 2008 6 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 was 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 judgements of the Courts below, is confined only to the hearing of substantial questions of law. Admittedly, no site plan, was got sanctioned by the appellants, before raising the disputed construction over the site, in question. The Courts below, on scrutiny of the evidence, came to the conclusion, that neither any mason, nor any person from whom, the material for raising construction, was examined, nor any bills or receipt, regarding the purchase of building material, used for the construction, in question, were produced, and, as such, it could not be said that the construction was made 15/16 years earlier to the filing of the suit. The Courts below, were also right, in coming to the conclusion that the resolutions dated 13.08.16, 20.11.16, and 20.05.17, exhibits D1 to D3, clearly contained the terms and conditions, regarding the auction of shops, whereas, D4 and D5 were regarding the publication and auction. The Courts below, were also right, in holding, that the ownership of the acquired land, in front of the shops vested in the shop keepers, but as per the aforesaid resolutions and the terms and conditions of the auction, they were not authorized to raise construction over the kacha phad. The stand taken up by the plaintiffs that the construction raised by them was 15/16 years old, thus, was not proved from the evidence, RSA No. 4275 of 2008 7 produced by them. Since no plan, was got sanctioned by the plaintiffs, before raising the construction, from the Municipal Committee, the latter had every right to serve a notice upon them, under Section 208 of the Haryana Municipal Act, 1973. The notice, therefore, could not be said to be illegal, for the demolition of unauthorized construction, over the site, in question. The Courts below, were, thus, right in coming to the conclusion, that on the basis of the notice, demolition of the unauthorized construction raised by the plaintiffs, could be removed by the Municipal Committee. The concurrent findings of fact, recorded by the Courts below, on the aforesaid points, being based on the correct appreciation of evidence, and law, on the point, do not suffer from any illegality or perversity, and warrant no interference. The submission of the Counsel for the plaintiffs/appellants, being without merit, must fail, and the same stands rejected. The judgements and decrees of the Courts below, being legal and valid, are liable to be upheld. 12. No question of law, much less substantial, has arisen, in this appeal, for the determination of this Court. 13. For the reasons recorded above, the instant Regular Second Appeal, being devoid of merit, must fail, and the same is dismissed. 18.08.2009 (SHAM SUNDER) Amodh JUDGE