RSA No. 3948 of 2005 (O&M) -1- IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH RSA No. 3948 of 2005 (O&M) Date of Decision : 28.1.2009 Market Committee Ismailabad & another .......... Appellants Versus Sham Sunder ...... Respondent CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA Present : Mr. S.S.Kamboj, Advocate for Mr. Avnish Mittal, Advocate for the appellants. Mr. Sanjiv Gupta, Advocate for the respondent. **** VINOD K. SHARMA, J. (ORAL) This regular second appeal is directed against the judgment and decree dated 26.5.2005 passed by the learned lower appellate Court vide which suit filed by the plaintiff-respondent for mandatory injunction with a consequential relief of permanent injunction stands decreed. The plaintiff-respondent was successful bidder in an auction of plot conducted by the appellant / committee. The plaintiff / respondent gave the highest bid of rupees thirteen lacs, which was accepted, as per the terms of the auction, 25% of the auction amount i.e. Rs. 3.25 lacs was paid. However, possession of the plot was not handed over at the time of allotment letter. However, the plaintiff continued paying instalments for the RSA No. 3948 of 2005 (O&M) -2- balance sale consideration and paid three installments i.e. on 9.11.1999, 9.5.2000 and 7.11.2000. In spite of payment of 25% of the amount initially and three installments thereafter, the possession of the plot was not handed over by the appellant, as no development carried out. In fact the plot allotted to the plaintiff was part of a pond which was required to be filled up before the possession could be handed over. The plaintiff on 3.4.2001 filed a suit for mandatory injunction directing the appellant / defendant to hand over the possession of the plot and also not to charge interest and penal interest for the period from the date of allotment till handing over the possession, on the plea that no development had been carried out by the appellant, nor they were in a position to hand over the possession of the plot. A prayer was also made that the appellant-defendants be restrained from resuming the plot on account of non-construction within a period of two years as it was impossible for the plaintiff-respondent to raise construction in absence of possession. In the written statement filed on 22.5.2001, a plea was taken by the defendant / appellants that development work was almost complete. However, in the evidence brought on record it was proved that the approval to start development work was given only on 2.5.2003 whereas same was completed on 13.11.2003 and the plaintiff was given an offer to take the possession of the plot on 21.8.2002. The plaintiff-respondent took possession of the plot though development was still continuing. The learned trial Court, however, dismissed the suit by RSA No. 3948 of 2005 (O&M) -3- observing that the suit for mandatory injunction as framed was not competent and held that the plaintiff was not entitled to seek injunction without payment of all the installments as stipulated in the allotment letter. However, on appeal the learned lower appellate Court reversed the findings recorded by the learned trial Court by holding that it was mandatory duty of the Market Committee, which is a statutory body, to have handed over the possession of the plot to the plaintiff-respondent at the time of allotment. Therefore, once it failed to perform its duty the suit for mandatory injunction was competent. The learned lower appellate Court also held that no interest or penalty could be claimed for a period of two years from the date of handing over of possession which is 28.8.2002. The learned counsel appearing on behalf of the appellants vehemently contends that the following substantial question of law is involved in the present regular second appeal for consideration by this Court :- Whether the learned lower appellate Court could reverse the well reasoned judgment and decree passed by the learned trial Court ? In support of the substantial question of law the learned counsel for the appellant contends that no suit against the appellant could be filed without first issuing notice as envisaged under Section 31 of the Punjab Agricultural Marketing Act, 1961. However, I find no force in this contention as this plea is being RSA No. 3948 of 2005 (O&M) -4- raised for the first time before this Court. No such plea was raised before the learned Courts below. Even otherwise, the transaction cannot be said to be one which attracts the provisions of Section 31 of the Punjab Agricultural Marketing Act, 1961. The substantial question of law, as framed, deserves to be answered against the appellant. The learned lower appellate Court rightly reversed the findings of the learned trial Court as it is mandatory duty of the defendant-appellants to have given possession of the plot at the time of issuance of allotment letter. The Court could, therefore, by way of mandatory injunction direct the defendant-appellants to perform its duty as per allotment letter. The findings recorded by the learned lower appellate Court are as per settled law, that the appellants are not entitled to charge interest, penalty till the area is developed and the person allotted the plot s is allowed to enjoy the property. No ground for interference is made out. Dismissed. 28.1.2009 ( VINOD K. SHARMA ) 'sp' JUDGE