482 ReSeAeNoe711 of2001 4 Ill r P 4 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No 711 of2001 Date ofDecisionl December21 2009 Mls Vikas PipesRegistered Orm Dirba 1 e e eAppellant 0 Vs C I Notified Area Committee NagarPanchayatl Dirba Ca9 Z t CORAM HONBLE MR JUSTICE MMS BEDI lr I Presentl Mr AR Sidhu Senior Advocate with a5 Mr NandanJindal Advocate for theappellant MrGS SandhawaliaAdvocate me Z for the 0 m I MMS BEDI Je This is plaintiffsappealagainstthe judgmentof reversal passedby the lower AppellateCourt Suit of the plaintif appellantfor permanent injunctionagainst the defendant respondent was decreedholding that the Committee would be restrainedfrom octroi from theplaintiffOnn as thefactotyof plaintiffeappellant was not situated in the limits ofNotified Area Coininittee The lower Appellate Couit on re . uma 2012.06.17 14: 48 Scanned True Copy of Original PHHC,Chandigar h JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 483 RSAe Noe711 of2001 121 1 of evidencehad set aside thejudgment and decreeof the trial Court dated December7 1998 and dismissedthe SUlt of the plaint holdingthat the defendantwould be entitledto recover the octroi fee from the appellant as his factoryset up existed in the Notified Area Committee It is againstthe said of reversalthat the plaintiffhas 1 r preferred this secondappeal 0 The short questionof controversybetween the parties1S 0 whether the factoryor any partof the factoryof the appellanthas been I C5 constructed over Khasra No 144 which falls Ul the municipallimits of I MunicipalCommittee Nagar Dirba and the rests Z uponthe demarcation reportbut Since both the partiesare at lssue on the e2 above said fact it 1S deemed to refer to the pleadings and the I claim ofboth thepartiesin context to the evidenceproduced on record 08 Briefly stated the case of the plaintitEappellantas per the m2 nt is that the plaintiffinn Mls Vikas Pipesls a firm Megh Z r Raj ls a partnerof the said firm The flrm deals in of iron Qm r pipesand tubesand that thefactorydoes not fall within the area of Noti6ed Area Committee Dirba and is situatedin Khasra No 137112112 llllIl 62 Despitethe existence of the factorybeyondthe limits of Notified Area Committee the defendantm committee had been to recover the octroi chargesfrom the plaintiffillegallyand forcibly The plaintiffhad filed a suit No28 ofAugust11 1995for permanentinjunction againstthe defendant Committee that Slnce the plaintiffsfactoryis not . uma 2012.06.17 14: 48 Scanned True Copy of Original PHHC,Chandigar h JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 484 RSAeNoe711of2001 131 V V withinthe of as suchthe be restrainedfromcharging octroi om theplaintiff The defendant committee in its wrltten statement J P tookup a preliminary objectionregarding the locus standi cause of action of Civil Court suit having not been Oled by competent person 0 andconcealmentof facts It was averredthat the plaintifffirm is situated 0 within ofNotified Area Committee Dirba and some portion 0 of the factoryfalls in Khasra No4411112 and that the Committee was I C5 entitledto recover octroi as per the instructionsof the Govemment The I beenpayingoctroi to the defendant Z The plaintiftl was to 61ereplicationOn C thepleadings ofthe partiesfollowing issueswere framec I 1 Whetherthe plaintiffsfactoryis situatedoutside 08 ofthe defendantcommittee2OPP W2 2 Whetherthe plaintiffis entitledto seek relief of Z r 0 OPP 0 Pe 3 Whetherthe of the civil Court is barred2OPD 4 Whetherthe suit hadnot been ftledbya competent person2 OPD 5 Whetherthe plaintiffis estoppedby his act and conductfrom filingthe suit2 OPD . uma 2012.06.17 14: 48 Scanned True Copy of Original PHHC,Chandigar h JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 485 RSANoe711 of2001 141 v IJ 6 Whetherthe suit is not maintainablein the present fonn2 OPD 7e Whether no notice has been served upon the defendantcommittee if so its effect2OPD 8 Relief 11 IssueNo l was decided111favourof the plaintiffby the trial 0 Courtconsidering the controversywhethera ponionof thefactoryis situated 0 1Pt in Khasra NO andthe existenceofthe officet Khasra No4411211 I 0 held that the defendant Committee had failed to prove the I exlstence of factory111Khasra No and also that Khasra No Z was within the Notified Area Committee IssueNo was decided r in favour of theplaintiffl IssueNo3 was lso decidedagainstthe I defendant and in favour ofthe plaintifappellantIssueNos 4 08 6 and 7 were not pressed as such were decidedagainstthe defendar IssueNo was decidedagainst the defendantandin favour of 7 Z 0 the plainti As a resultof findingon all the issues SUlt of the plaintiff 1 decreedand the defendantcommittee restrainedfrom was was octroi from theplaintifffirm bythejudgment and decree passedin favour of the plaintiffthe defendante an appeal The lower Court considering the notiflcationExDl datedJanuary10 1993 that north westem side of khasra No 144 was noti8ed to be within the of Notifled Area Committee and that the ry . uma 2012.06.17 14: 48 Scanned True Copy of Original PHHC,Chandigar h JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document e 486 RSeAe Noe711 of2001 151 1 l CAP Gt of the plaintiffbeingsituated of Khasra No 144 it wouldbe competent for the Committeeto impose octroidutyon P 1 the The lowerAppellateCourt also took up issue No of and observedthat theplaintiffhadpaidoctrol fee on October 17 1993with regardto importof Iron stripsin the Truck againstreceiptExD4 receipt OAt6 1 C datedOctober 23 1993 for Rs15651 30 0 1993ExD6 The main issue was demarcation There weretwo C 0 reportsof demarcationExP2 made by Patwariin which it was mentioned C5 that factorypremises of theplaintiffexistedover Khasra NOe1371nin I 2 1371121min 61139and 1371121122149There is anotherreportExD2 Z dated October 18 1995 with regardto Khasra No 14411112in which the 0 same patwarihas found that thereis office of factorypremisesworkshop I kitchen floor weighingmachine shedof cyclestandand oil tank for khasra 08 No observingthat the said khasra number was not in the ownership of plaintiffThe lower Appellate Court observedthatthough the 7 Z I4 1 plaintiffis not recorded owner of Khasra No 14411211but as 4 factory1S C llt L situatedsmthe said khasranumber theappellant was liable to pay theoctroi The and decree of the trial Court was set aside takinglnto considerationboth the demarcationreportsofpatwarl It will not be out of placeto mentionhere that the appeal was heardexlarte against the bya singleBench ofthis Court andthe appeal was allowed settingasidethejudgment of lower Appellate Court and the decreeof the trial Court was restored On an application filed by the . uma 2012.06.17 14: 48 Scanned True Copy of Original PHHC,Chandigar h JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 487 ReSeAeNoe711 of2001 161 V 011 1 the Division Bench aAer the retirementof Judgeordered the recalling of the order and the appeal was fixed for The matter 0 3 2008 in a review and the of the SingleJudgewas set aside and the mattet was remitted for hearing bySingleJudge This is how the present appeal has beenflxed beforeSingleJudgefor hearingIt will alsonot be out 0 of placeto mention here that when the second appealcame up for hearing C beforea CoordinateBench ofthis Court followingorder was passed on July Z C5 320091 I The dispute between the partiesis whether the Z 1 partof has been constructedover Khasra r No 144 which falls within the Municipal I Limits Both the partiesare relying upon the 08 demarcation carried out by Pawan Kumar Patwari e However the reportssubmitted by Pawan Kutnar are Z to eachother In view of the said factual positionIeamed counsel for the partieshave no if another Revenue official is appointed to cany out demarcationof Khasra No 144 and to 8nd out whether the factory premises or any part thereof is on any part of Khasra No44 . uma 2012.06.17 14: 48 Scanned True Copy of Original PHHC,Chandigar h JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 488 RSAe No 711 of2001 171 r Let the Collector Sangrurappointa Revenue Officer to carry out demarcation as mentioned above The Revenue Official So appointed shall associate the parties in the processofdemarcation List on 902009 1 t Demarcation reportbe submittedto this Court on 0 or beforethe saiddate C40 A copy of the order be sent to the leamed I C5 Collector Sangrurfor necessaryaction 59 I Demarcationreportwas with the consent of both the Z partiesand the same has been placedon record The report of Naib r Tehsildar Dirba submittedbeforethis Court as translated is I hereunder C45 e By issuingthe parwana on dated 6 102009 the J concernedpartieswere bound to remain presentat the Z r spotat thetime ofdemarcation ShShamLal son of Sita Ll 1 Ram on behalfof Mls Vikas PipesDirba and ShJasmel SinghClerk on behalf of NAC Dirba came presentat the spot Patwari HalqaDirbaeA alongwith record and Field Kanungo Dirba also came present at the spot The Honble Court has ordered to conduct demarcation of Khasra No 144 Revenue records inspectedFrom the recordit is found that there lSno Khasra No44 rather . uma 2012.06.17 14: 48 Scanned True Copy of Original PHHC,Chandigar h JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 489 ReSeAeNe 711 of2001 181 r there 1S rectangle No144 The dispute between the partles1S with regardto Khasra No4411112 Parties were informed bout this The checkingof Jarib was donewith steeltapein the presenceofpanies The partiesadmittedit to be correct m C The demarcationofKhasra NO144 was 0 startedas per order of the Honble Court with necessary C measuringmaterialbyfixingthree permanentpoints as C5 mark A B C There is boundary wall of a Shelleron I thesepennanentmarks The partiesadmitted it to be Z correct The above said Khasra no was fixed by r conducting the deinarcationfrom thesepermanentpoints et I as per the order ofthe Honble Court On conducting the 5 clemarcationat the spot tt was found that thereis office wa kitchen Dharamkanda store electricity Z n transformermalll gateand shed of the factoryin this tl Khasra number 14411112The raw materialofthe factory is lyingin the shed Reportis beingsent after conducting the demarcation Order of the Honble Court infonnationslipand presencesheet are auachedwith the repot A perusalof the above said reportindicatesthat the ofSce workshopkitchen Dharamkanda store electricitytransformer maltl gate . uma 2012.06.17 14: 48 Scanned True Copy of Original PHHC,Chandigar h JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 490 RSA Noe711 of2001 191 T and shedofthe factoryofplaintiffissituatedin Khasra No 14411112 in rect No144 It was brought to the notice of both the parties that there wasno khasraNo144 but it was rectangle No144 None ofthe parties hasfiled any objection against the demarcationreport Learnedcounsel for the plaintiffe has placedstrong 1C reliance on the judgment of the ApexCourt in Balai Chandra Hazra V 0 SbewdhariJadav AlR 1978 SC 1062to contend that it is not within the C ambit of jurisdiction of HighCourt hearing an appealunderSection 100 I C5 CPC to call for the evidenceand relyingupon the same to decide an appeal I He arguedthat admitting evidencebyHighCourt is not if seen Z ln context to Section 103 of CPC The questionof evidence 1S C differentfrom it and actingupon it The relevantponionof the I referredto bycounselfor the appellant readsas underl 08 That is not the function envisaged by the Code of the 7 Court hearingsecond appealunder Section 100 This Zo becomes crystalclear from the provisioncontainedin S tl r 103 which detlnes the power of the High Court to determinea question offact while hearing secondappeal But this power of the Court is limited to evidence on recordwhich againis sufficientto determinean issue of fact necessaryfor disposal of the appealand which has not been determinedby the lower Court or whichhas beenwrongly determinedbysuch court When 1 . uma 2012.06.17 14: 48 Scanned True Copy of Original PHHC,Chandigar h JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 491 RSAeNoe711of2001 1101 e2 1 pleadings are amendedat the stageof the appealunder Clause 15 of the Letters Patent and 8esh allegations of facts are thus introduceiin the controversywhich necessitate additional evidence being it would not be open to the Court to proceedto record evidence 1 C and to the evidence and record Sndingsof 0 fact a hlnction which even ordinarilyis not undertaken 0 by the HighCourt hearing the second appealmuch less I C5 can it be done while hearing an appealunder Clause 15 I of the Letters Patent When on account of a Z changein law amendmentof the is granted C vvhich raises questions of fact the Sltuation I would not be one govemed by0 41 R 27 At that stage 08 r it could not be said that the appellate COUrtlS permltting 7 production of additionalevidence oral or Z e on the groundthat the court from whose decreethe tl A appealis has rehlsed to adduceevidencewhich oughtto have been admitted or the appellate court requtresany documentsto be produced or any witnessto be examinedto enableit to 39 It would thereforeappearthat when a Bench of a High Court 1S hearingan appealpreferredupon a certificategranted under Clause 15 of the Letters Patent . uma 2012.06.17 14: 48 Scanned True Copy of Original PHHC,Chandigar h JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 492 RSANoe711 of2001 Illl e V bya singleJudgeofthe HighCourt whobyhis has of the second appealthe appellate Bench would be subject to the limitation on its power and jurisdiction to or evidenceandto record findingsof fact which were never raised before tr the trial court or the first appellate court as the 0 were permitted to be amendedby it andthe question was 0 e raisedfor the first time beforeit to the same extent as the I C5 FIighCourt hearing secondappealwith constraintsof Ss 100and 103ofthe Code It must be distinctly understood Z that admittingevidence 1S entirelydifferent 8om r it andactingupon i I Whenconfrontedwith the situationthat in the present case both 08 thepartieshad consentedto get the demarcationreportcounselsubmitted thatifa Court lacks in no amount ofconsent can confer S7 Z C1 jurisdiction CL 1 1 I have consideredthe contentionsof learnedcounsel for the plaintiftlappellant ln context to the of Balai Chandra Hazras case 6supra9The factsand circumstances ofthe said case were that SUlt of theplaintifffor was decreedagainst a tenant pertaining to the groundfloor of a premises in disputein that case on the groundof for own use and The said order of eviction was contlrmedin appealby the Additional District Judge In second appeal . uma 2012.06.17 14: 48 Scanned True Copy of Original PHHC,Chandigar h JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 493 ReSA No 711 of2001 1121 r to the HighCourt of Calcuttapermission was soughtto adduce additional issue to the effect that of the landlord stood satisfied ashehadrecovered of four rooms on the Orstand secondOoorof thebuildingThe said contentiondid not Ond weightwith theHighCoun as suchthe appealof the defendantwas decreed and decree for eviction was m Q afflrmed A certificate was grantedby the SingleJudgeof High Court 0 resulting in of letterspatentappealDuringthe pendency of the 0 appeal under Clause 15ofthe LettersPatentAct the leave I t5 to amend the plaintwith additional written statement The I 1 Court framed fresh lSsues from the amended The oral and Z evidence was to be adduced and ultimately the r appealwas dismissed affirmingthe decree of eviction In an SLP flled I before the Supreme Court the ApexCourt made abovesaidobservations a5 01 referredto by MrSidhu In View of the statutorybar of Section13 639A of m theWest BengalPremisesTenancyAct 1956 the ApexCourt set aside the Z Il evictionorder andremandedthe suit back to the trial Court to proceedfrom 1 the stageafter amendmentof which were grantedby the High Court and the relevantadditional issues framedon the basis of amended pleadingsThe perusalof the aforesaidjudgment indicatesthat so far as the amendmentof the pleadings and framingof additional 1Ssues in the High 1 Court was but recording of theevidence and of 6ndingon the same was set asidebesidessettingaside ofevictionpassed byall theCourts for the different reasons inentionedin thejudgment . uma 2012.06.17 14: 48 Scanned True Copy of Original PHHC,Chandigar h JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 494 RSAe Noe 711 of2001 1131 r 0 So far as thecircumstancesof the presentcase are concerned the had neitherraisedany substantial of law nor any such question was even framedfor by this Court The short which had to be settledon the basisofthe evidenceled byboth theparties was whetherthe factory of the plaintifflappellant falls m C4 in Khasra No 14411112 or Khasra No 14411211in view ofthe contradictory 0 demarcationreports A specificpleahad been taken by the defendan 0 in their written statement that a portionof the factoryof the C5 plaintiftlappellant falls in Khasra No4411112and that the Commiuee was I entitledto recover octroi With an to finallydetermine the Z between the partieswhetherany part of the factoryof the m C was constructedin rect No 44 which falls in e I Municipal Limits in view ofa demarcationreportsa direction a5 was issuedto the Collector Sangrurto appoint revenue ofScial to cany out demarcation The Revenue Official was directedto associatetheparties 111 em Z the processof demarcationThe power of of a revenue ofOcial Om 114 to undertakedemarcationcannot be said to be beyondthe ambit of of a Court whenit is necessaryfor the ends ofjusticeIf in the processof administrationofjusticea Court appoints a Local Commissionerwith the consent of the partiesto arrive at a just conclusion the said act cannot be termedas an act without jurisdictionAs 1 per HighCourt Rules and Orders Vol I ChapOI ParM dealingwith . uma 2012.06.17 14: 48 Scanned True Copy of Original PHHC,Chandigar h JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 495 RSA Nos 711 of2001 1141 P specialfeaturesof certain classesof cases regardinglocal enquirya provision hasbeen madewhichreadsas followsle Ul Local inquiryIn HaddShiknr suits and other suits of boundarydisputes of land fallingwithin the jurisdictionof Civil Court it 1S generally 1 Lr desirablethat enquirybe made on the spot This 0 can usuallybe done in thefollowingways 4 a9 by that one partyor the other should I C5 applyto the Revenue Ofllcer to fix the limits I 4t under Section 1010lI ofthe PunjabLand Revenue Z tt Act Time for such purpose should be granted C under Order XVII Rule 3 of the Code of Civil 4t Procedure olj b9 byappointing a local Commissioner and r mm C bythe Court itselfmaking a local enquiry Z 1 2 Enquiryby Revenue Officer An order of the t1 1V Revenue Officer made under Section 101 of the Land RevenueAct is not conclusivel but when his have been held in the presenceof or afler notice to the parties of the suit and contatn details of enquiryand of the method adopted in arrivingat the result it would be a valuablepiece of evidence It may be noted that an Assistant . uma 2012.06.17 14: 48 Scanned True Copy of Original PHHC,Chandigar h JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 496 RSAe Noe 711 of2001 1151 Y l t0J2 Collector of the second gradecan deal with cases in regard to boundarieswhich do not coincide with the limitsofan estate 13 In thepresentcase it was desirablethat the enquiry on the spot should be maderegarding the disputeof rect Nol44 and rect r No37 to determinewhetherthefactoryof appellant was situatedin Khasra 0 No144 which falls in the Notified Area Committee as per the C I notification ExDl The reportofthe enquiry officer in the presentcase will C dlAunAcaLv held in notice to both I 1 of them The reportcontainsthe details of theenquiryA power exercised Z bJ by a Court in consonance tthe authority derived from the rules cannot be C said to be without jurisdictionif it helps111 of the real I betweenthe parties 08 In view of above circumstancesthe contentionsof MrSidhu 7 that the reportof Revenue Officer datedOctober 7 2009 cannot be looked Z CuuQA rl 1 into is rejectedThe onlyquestion of law which sk raised in the presentsecond appealwould have been whetherthejudgment ofthe lower AppellateCourt reversing thejudgtnent of the trial Court on of WA evidence could be said to be vitiated But the said legal18Suewas not soughtto be 8amed but in an attempt to do complete justiceto the partiesto settle the controversybetween them I have taken into considerationthe relevant facts brought on the records of the Courts below in context to the pleadings and I am of the opinionthat the revenue of6cial . uma 2012.06.17 14: 48 Scanned True Copy of Original PHHC,Chandigar h JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 497 ReSeAeNoe711 of2001 1161 Y 1 Pawan Kumar Patwari while appearing as PW2 hasprovedhis demarcation reportExP3 dated October 19 1995 which shows that the factoryof the plaintifflappellant exists on Khasra No37 and 4 kanals9 marls and also in the ownership of the said Srm It is also establishedon the recordthat Khasra No144 is not the ofplaintifappellant as per 1C JamabandiExP5 The reportEx3 is silent about the existence of the 0 factoryofplaintif on any partofrect No144 but theclaim ofthe 0 defendant that the propertyis situated in Khasra I C5 No14411211 filling lll the jurisdictionof Notitled Area Committee 1S r I establishedfroin the another report ExD2 indicatingthat the factory Z Dharam Kanda cyclestand oil tank and shed of the factorywhere the C goodsare manufacturedexists on KhasraNo14411211ExD2 is 8lrther corroboratedby the fresh reportof demarcation dated October 7 2009 08 by Naib Tehsildar Dirba which has been taken on record as W2 additionalevidenceexercising inherent with the consent of the Z partiesKhasra No144 falls withintheNotied Area Committeeas such the Qm Ae claim of the plaintiffeappellant that his factory1S not exlstingon Khasra N 144 stands belied and the pleaof the defendantvrespondentin this contextis established In view of above circumstances no groundis made out for interferencein thejudgment and decreepassedby the Courts below The appeal is dismissed Before parting with thejudgmentit may be necessary toobservethat bya notiflcation dated January7 2002 issuedbythePunjab 4 . uma 2012.06.17 14: 48 Scanned True Copy of Original PHHC,Chandigar h JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 498 RSA No 711 of2001 1171 J Govemment byPunjabMunicipalAct 2002 Section 61 2a9 has been added in the PunjabMunicipalAct 1911 layingdown that wef the commencement of the amendedAct 110octroi shall be levied except on electricityWhether theplaintiffl 1Sentitled to the benefitsof the said amendment or has not been consideredln 1 this appealandis left open 0 C3 December 21 2009 MMSJ3EDI9 sanlay JUDGE I C5 I Z c2 C 1 I a5 7 Z 0m . uma 2012.06.17 14: 48 Scanned True Copy of Original PHHC,Chandigar h JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document