In the High Court of Punjab and Haryana at Chandigarh ...... R.S.A. No.135 of 2008 ..... Date of decision:24.1.2008 Municipal Corporation Faridabad and another .....Appellants v. Suresh Chand and others .....Respondents .... Present: Mr. Raman B. Garg, Advocate for the appellants. ..... S.S. Saron, J. (Oral) This appeal has been filed by the Municipal Corporation, Faridabad against the judgment and decree dated 31.5.2007 passed by the learned Additional District Judge (I), Faridabad whereby the appeal of the Municipal Corporation against the judgment and decree dated 16.5.2002 passed by the learned Civil Judge (Junior Division), Faridabad has been dismissed. The plaintiffs filed a suit for declaration and mandatory injunction inter alia alleging that they are owners in possession of agricultural land comprised in Rectangle No.81, Killa Nos.11, 12, 19 and 20 and Rectangle No.80, Killa No.16 situated in the Revenue Estate of Ballabgarh, District Faridabad. The land was used by them for agricultural purposes and for subservient purposes thereto. The plaintiffs have raised a boundary wall, a room for tube-well and a room for chowkidar in the year 1991. The tube-well was installed in 1992 to irrigate the land. The rooms for tube-well and for chowkidar were constructed in Khasra Nos.9 Min. and R.S.A. No.135 of 2008 [2] 10 Min. on Rectangle No.81. No objection was raised by the defendants at the time of construction. However, defendants No.2 to 6 illegally, unlawfully and without any right, authority, power, mala fide and without issuing any notice to the plaintiffs and without informing them took the law in their own hands and demolished the boundary wall, tube-well room and chowkidar room and all other constructions existing on the said land on 1.7.1997. No opportunity of being heard was given and in this manner damages to the plaintiffs to the tune of Rs.2 lakhs was caused. The defendants No.1 to 4 filed separate written statement and defendants No.5 and 6 filed a separate written statement. The stand taken by the defendants primarily is that the plaintiffs had carved some plots from the agricultural land and sold the same by carving them out. Defendants No.3 and 4 were on duty in the supervisory capacity with the directions of Deputy Commissioner and the portion that was demolished was done by the Municipal Corporation, Faridabad under the provisions of Haryana Development and Regulation of Urban Areas Act, 1975 (`HUDA Act' - for short) and Haryana Municipal Corporation Act, 1994 (`Municipal Act' – for short). At the time of demolition of the existing construction, no person on the part of the plaintiffs appeared or represented to the authority. In the written statement filed by defendants No.5 and 6 i.e. the present appellants, it is stated that the plaintiffs had not served statutory notice as required under the provisions of HUDA Act as well as Municipal Act before filing the present suit. It is, however, accepted that the demolition was done as certain unauthorized constructions had been raised. The demolitions were carried out on the directions of the Deputy Commissioner. It is denied that R.S.A. No.135 of 2008 [3] tube-well or chowkidar rooms or any other old constructions were demolished. The plaintiffs, it is alleged, were trying to develop unauthorized colony without obtaining the licence from the Director, Town & Country Planning, Haryana. The action of demolition was resorted to for those structures which were constructed in violation of the provisions of the HUDA Act and the Municipal Act. The learned trial Court framed the following issues in the case:- “1. Whether the plaintiffs are owners in possession of the property detailed in para No.1 of the plaint? OPP. 2. Whether no notice under the Faridabad Complex Act was issued to the plaintiff prior to demolition of suit property? OPP. 3. Whether the plaintiff is entitled to the relief, as prayed for? OPP. 4. Whether the suit is not maintainable in its present form? OPD. 5. Whether the plaintiff has no locus-standi and to file the present suit? OPD. 6. Whether the plaintiff is estopped from filing the present suit by his own act and conduct? OPD. 6 (A) Whether the plaintiffs have not affixed the proper court fee? OPD. 7. Relief.” After considering the evidence and material on record, the learned trial Court held that the plaintiffs-respondents are owners in possession of the property in dispute. Besides, no notice was issued under the Faridabad R.S.A. No.135 of 2008 [4] Complex Act by the defendants before carrying out the demolitions. The plaintiffs, it was held, constructed a wall having length of 1540 feet, one tube-well room and one room for chowkidar/watchman which were demolished by the defendants for which they claimed compensation of Rs.5 lakhs. The learned trial Court observed that the cost in his opinion comes to about Rs.2 lakhs including damages suffered by the plaintiffs on account of defamation etc. Accordingly, the claim for Rs.2 lakhs as damages was allowed to the plaintiffs subject to their furnishing Court fee on a sum of Rs.2 lakhs for which one month's time was given. The findings recorded by the learned trial Court have been affirmed by the learned Additional District Judge-I in pursuance of his impugned judgment and decree. It was held that it was the duty of the defendants to issue notice before demolishing the property of the plaintiffs and the fact of issuance of notice was completely missing in the present case. It was held that the act by the defendants of demolishing the construction of the plaintiffs was illegal and unauthorized. Mr. Raman B. Garg, Advocate, learned counsel appearing for the defendants No.5 and 6-appellants has contended that the award of Rs.2 lakhs by also taking into account the fact of defamation having been caused is illegal and, in any case, is improper. It is submitted that in this regard no finding has been recorded. It is also submitted that the assessment of damages is not as per evidence that has come on record. It is also contended that the demolition, in any case, were carried out on the directions of the Deputy Commissioner who had issued instructions which is Mark-D.1 on record. I have given my thoughtful consideration to the contentions of the learned counsel for defendants No.5 and 6-appellants and also perused R.S.A. No.135 of 2008 [5] the judgments of both the Courts below. However, I find no merit in the same. It has been recorded as a finding of fact by both the Courts below concurrently that the property in dispute from which demolition has been carried out was owned and possessed by the plaintiffs. Besides, no notice was issued before the demolition was carried out. It has not been shown that the action that has been undertaken by the defendants had any statutory sanction. During the course of hearing, learned counsel appearing for the appellants has laid considerable emphasis that general instructions were issued by the Deputy Commissioner, Faridabad to demolish the unauthorized colonies. The said instructions have been placed on record of the Courts below are marked as Mark-D.1. It may appropriately be noticed that the said instructions, therefore, admittedly have not been proved in evidence by exhibiting them. In any case, issuance of instructions by the Deputy Commissioner, in my view, does not dispel with the requirement of carrying out the action of demolition in accordance with the statutory provisions; besides, complying with the principles of natural justice. It may also be noticed that in the memorandum of appeal the following questions of law as envisaged by the provisions of Section 100 (3) CPC have been framed:- “i) Whether the judgment and decrees passed by the learned Courts below are result of non-application of mind, perverse and illegal? ii) Whether a manifest grave injustice has been caused to the defendant-appellants?” The above, in my view, are no questions of law and are merely grounds for assailing the judgments and decrees of the Courts below. R.S.A. No.135 of 2008 [6] Therefore, admittedly, no question of law is involved in the present case and neither is any shown to be involved by the defendants No.5 and 6- appellants. The question as regards award of Rs.2 lakhs as damages on account of the demolition and defamation is also a finding of fact. Keeping in view that 1540 feet long wall, one tube-well room and one room for chowkidar/watchman have been demolished, award of a sum of Rs.2 lakhs as damages for demolition and defamation, in my view, is not a finding, which can be said to be unreasonable or perverse. Therefore, the said finding calls for no interference in the regular second appeal. In view of the above, there is no merit in the appeal and the same is accordingly dismissed. January 24, 2008. (S.S. Saron) Judge *hsp*