IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No._169 of 1997. Judgement reserved on: 26.12.2007 Date of decision:25.02.2008 Notified Area Committee, Manali …….Appellant Vs. Kesar Singh Rawat …. Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 No For the Appellant : Mr.Anand Sharma,Advocate For the Respondent : Mr. K.D. Sood, Advocate. Kuldip Singh, Judge. This appeal has been directed against the judgment, decree dated 8.1.1997 passed by learned Addl. District Judge, Kullu in Civil Appeal No.35/95 reversing judgment, decree dated 26.4.1995 passed by learned Senior Sub Judge, Kullu. 2. The brief facts of the case are that respondent filed a suit for permanent prohibitory injunction against appellant on the grounds that he is owner in possession of land measuring 3 biswas out of the land measuring 4 biswas, comprised in khasra No,3154/2963 vide jamabandi for the year 1982-83, Phati Nasogi Kothi Manali , Tehsil and District Kullu. The appellant vide resolution Whether the reporters of the local papers may be allowed to see the Judgment?Yes …2… No.8(ii) dated 3.7.1990 approved building plan of the respondent for construction of three and half storey building on the aforesaid land. The respondent has constructed the three storey building on the suit land and he is entitled to raise half storey more as per approved building plan. The building has been assigned House No.249, Block No.II and has also been assessed for purposes of house tax. The respondent has paid house tax on demand raised by the appellant. 3. The appellant served notice No.710 dated 1.10.1992 on respondent asking him to demolish the construction within seven days. In the notice dated 1.10.1992 there is reference of notice dated 18.9.1992 but no such notice was served on the respondent. The notice dated 1.10.1992 is vague, illegal and not according to law and procedure. The appellant thereafter served notice dated 14.10.1992 on the respondent, asking him to comply the notice dated 1.10.1992 failing which appellant will demolish the construction of the respondent after six hours. It has been alleged that all these notices are illegal void, vague and respondent is not bound by them. The appellant is threatening to demolish the construction of the respondent on the basis of aforesaid notices and therefore, the respondent filed suit for permanent prohibitory injunction restraining the appellant from causing any unlawful interference in the ownership and possession of the respondent on the suit property and from demolishing or damaging the building of the respondent constructed on the suit land. 4. The appellant contested the suit by filing written statement, in which preliminary objection has been taken that …3… respondent has suppressed true facts and therefore, suit is liable to be dismissed. On merits, it has been submitted that building plan of the respondent was approved by the appellant only for three storey and sloppy roof. It has been denied that house No.249 Block No.II has been allotted to the new construction of the respondent. The new construction of the respondent is a hotel and House No.249 is the number of old house which has been demolished by the respondent in order to raise construction. The building plan of the respondent was approved on 3.7.1990 for construction of three storey building with sloppy roof . The construction was to be completed by respondent within two years from the date of sanction of building plan but respondent failed to construct and complete the said building within stipulated period of two years. He has not applied for the renewal of the building plan. The building as per approved plan was to be constructed on sanctioned area of 20.6” x 31.6” but respondent has covered an area of 66.0” x 45.9” on the spot and has thus covered 25.0” x 34.6” more area and raised construction in contravention of the approved building plan. The respondent has taken advantage of the exparte injunction order of the Court for constructing fourth storey of the building. He is continuing the construction even after the institution of the suit. It has been pleaded that all notices were served on the respondent. The appellant prayed for dismissal of the suit. The respondent filed replication and reiterated his case set up in the plaint. 5. The trial Court has framed the following issues:- 1. Whether the plaintiff is entitled to the relief of injunction, as prayed for ? ..OPP …4… 2. Relief. 6. The learned trial Court dismissed the suit on 26.4.1995. The appellant filed appeal against the decision dated 26.4.1995 which has been allowed by learned Addl. District Judge on 8.1.1997, hence this appeal. 7. The appeal has been admitted on following substantial questions of law:- 1. Whether the Civil Court has jurisdiction to deal with the dispute raised in the suit? 2. Whether the judgment of the lower appellate Court is vitiated by its failure to consider the admission of the plaintiff that he had constructed four storeys while he had a sanctioned plan only for the construction of three storeys? 3. Whether the judgment of the lower appellate Court is vitiated by its failure to take into consideration the entire evidence on record? 8. I have heard Mr. Anand Sharma, learned counsel for the appellant, Mr. K.D. Sood, learned counsel for the respondent and gone through the record. It has been submitted on behalf of the appellant that civil Court has no jurisdiction to try the suit. The learned Addl. District Judge has erred in not taking into consideration vital evidence placed on record. The respondent has raised construction in violation of the approved building plan, which has been proved from his own admission and other material on record. The respondent has raised construction even after filing the suit. The …5… respondent is not entitled to relief of injunction. The learned counsel for the respondent has supported the impugned judgment, decree. Substantial question of Law No.1. 9. The learned counsel for the appellant has submitted that civil Court has no jurisdiction to try the suit. As per the case of the appellant the respondent raised the disputed construction and consequently appellant issued notices dated 18.9.1992, 1.10.1992 and 14.10.1992 to the respondent. At that time the Himachal Pradesh Municipal Committee Act, 1968 was in force. The learned counsel for the appellant has not pointed out any provision from that Act or elsewhere creating a bar for filing the suit of the nature filed by the respondent. In reply to para No.9 of the plaint in written statement the appellant has pleaded that so for jurisdiction of the Court is concerned, it is legal one and does not need any reply. In other words the appellant conceded the jurisdiction of the civil Court to try the suit filed by the respondent. There is no issue regarding the jurisdiction of the civil Court to try the suit. In these circumstances, it is held that Civil Court has jurisdiction to try the suit, substantial question of law No.1 is decided against the appellant and in favour of the respondent. Substantial questions of Law No.2 and 3. 10. The substantial questions of law No.2 and 3 are interconnected, therefore both of them are being disposed of collectively. The case of the respondent is that notice dated 18.9.1992 was not served on him and the notice dated 1.10.1992 and 14.10.1992 are vague and therefore, on the basis of these notices the …6… appellant cannot demolish the building of the respondent. It has also been submitted on behalf of the respondent that he has raised the construction as per approved building plan. These contentions have been refuted on behalf of the appellant. The learned Addl. District Judge has held that notices dated 1.10.1992 and 14.10.1992 are vague and notice dated 18.9.1992 was not served on the respondent. He has also held that contravention of the building plan has also not been proved and therefore, suit of the respondent was decreed . 11. PW-1 Kesar Singh has stated that his building plan Ex.P-1 was approved on 3.7.1990 vide Resolution No.8(ii). He started construction in August 1990. The notice Mark-F and another notice Mark-F ( sic G) were served on him. On the lower side, the building is four storey and sloppy and on the upper side it is three storey. In cross-examination he has stated that from side the building is four storey. He has admitted that as per plan building is not approved for four storey, rather it is approved for three storey. In the year 1992 he placed lintel on 20-22 October. He has denied that he raised construction after filing of the suit. He has not obtained completion report of the building. He has not filed any representation in the Committee. He has admitted that his plan is approved for 20 feet x 31.6 feet but he could not tell that he has raised construction on 66 feet x 45.9 feet, volunteered that he is raising construction on his entire land . PW-2 Hari Ram has stated that he worked as carpenter in the building of the respondent from September 1990 to 1992. He worked in the building upto fourth storey. In cross- …7… examination he has admitted that the building is four storey. The appellant did not lead any evidence, rather the evidence of the appellant was closed by the order of the Court. 12. The perusal of plan Ex.P-1 would show that it is for three storey house with sloppy roof and was approved by appellant on 3.7.1990. The notice mark-F is dated 1.10.1992 and notice mark- G is dated 14.10.1992. The respondent while appearing as PW-1 has nowhere stated that he did not receive notice dated 18.9.1992. The burden of proof of issue No.1 was on the respondent, therefore, it was for him to prove that he did not receive notice dated 18.9.1992 issued by the appellant to the respondent regarding his unauthorized construction . In fact notice dated 18.9.1992 is the basic notice and the respondent has failed to prove that he did not receive this notice. He could have proved non service of notice dated 18.9.1992 on him by summoning the record of the appellant but for reasons best known to him he did not summon the record of appellant for proving non-service of notice dated 18.9.1992. In notice dated 1.10.1992 mark-F there is reference of notice dated 18.9.1992. The respondent has admitted service of notice dated 1.10.1992 mark-F. In case respondent had not received notice dated 18.9.1992 then after receipt of notice dated 1.10.1992 mark-F by him, it was natural for him to enquire about the notice dated 18.9.1992 from respondent. In his statement he has specifically stated that he did not make any representation to the Committee regarding his construction. It is not believable that respondent did not receive notice dated 18.9.1992 otherwise he would not have remained silent after receipt of notice …8… date 1.10.1992 in which reference of notice dated 18.9.1992 has been made. Therefore, from the facts and circumstances of the case, it can be safely inferred that respondent has received notice dated 18.9.1992 and he has taken a false plea that such notice was not served on him. The notice dated 18.9.1992 is the basic notice and subsequent notices dated 1.10.1992 mark-F and dated 14.10.1992 mark-G are supplementary notices in continuation of the notice dated 18.9.1992. The respondent has failed to prove non-service of notice dated 18.9.1992, therefore, the notices are not vague. The learned Addl. District Judge has not properly appreciated the material on record and has omitted to consider the fact that the respondent has not stated in his statement that he did not receive notice dated 18.9.1992. 13. The respondent while appearing as PW-1 and PW-2 Hari Ram have admitted that the construction raised by respondent is four storey. The respondent was entitled to raise three storey building as per approved building plan Ex.P-1. Mr. Jatinder Sain, Advocate was appointed as Local Commissioner by the trial Court to inspect the site and as per his report dated 30.10.1992, he inspected the site on 29.10.1992 and construction work on top floor was going on. In the report he has stated that building consists of ground floor, first floor, second floor and top floor. In other words as per report of the Local Commissioner the building is four storeyed. The case of the respondent is not of deemed sanctioned nor it can be a case of deemed sanction under Section 207 of the Himachal Pradesh Municipal Committee Act, 1968. It is not the case of the respondent …9… that he completed the building six months prior to the issue of the notices regarding the construction raised by him. On the contrary it has been proved that even after filing the suit the respondent continued to raise construction. The respondent as PW-1 has stated that he put lintel on 20-22 October, 1992. The suit was filed on 15.10.1992. The respondent from his own statement has proved that he raised construction even after the filing of the suit. The appellant has led no evidence but from the evidence led by respondent he has proved that he raised construction in violation of sanctioned plan Ext.P-1 and, therefore, he is not entitled to relief claimed in the suit. The learned Addl. District Judge has failed to consider vital evidence and admissions of respondent on record in decreeing the suit. In these circumstances, the impugned judgment, decree are liable to be set aside. The substantial questions of law No.2 and 3 are decided in favour of appellant. 14. No other point was urged. 15. The result of the above discussion, the appeal is allowed, impugned judgment, decree are set aside and the suit of the respondent-plaintiff is dismissed with costs. ( Kuldip Singh ) Judge. Feburary 25, 2008 (sks)