R.S.A. No. 3903 of 2008 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 3903 of 2008 (O&M) Date of decision: 18.03.2009 Haryana Urban Development Authority and another ....Appellants Versus Vipin Sharma and another ....Respondents CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: Mr. Dinesh Nagar, Advocate, for the appellants. ***** VINOD K. SHARMA, J (ORAL) C.M. No. 2991-C of 2009 This is an application under Section 5 of the Limitation Act for condoning the delay of 29 days in refiling the appeal. For the reasons stated in the application, C.M. is allowed and the delay of 29 days in refiling the appeal is condoned. C.M. No. 11606-C of 2008 This is an application under Section 5 of the Limitation Act for condoning the delay of 43 days in filing the present appeal. It has been averred in the application that delay has occurred due to administrative exigencies, as necessary permission was required to be obtained for filing the appeal. For the reasons stated in the application, C.M. is allowed and R.S.A. No. 3903 of 2008 (O&M) -2- the delay of 43 days in filing the appeal is condoned. R.S.A. No. 3903 of 2008 This regular second appeal is directed against the judgments and decree dated 26.5.2007 and 25.10.2007 passed by the learned Courts below vide which the suit filed by the plaintiff/respondents for declaration with a consequential relief of injunction stands decreed. The plaintiff/respondents filed a suit for declaration challenging the resumption order dated 2.5.2002 as well as order dated 12.11.2002 passed by the Administrator HUDA and notices under Section 18(1) of the Haryana Urban Development Authority Act (hereinafter referred to as 'the Act') being illegal, null and void, arbitrary, unjustified, uncalled for and without jurisdiction. A consequential mandatory injunction for directing defendant No. 2 to issue a formal occupation certificated under the Haryana Urban Development (Erection of Buildings) Regulations 1979, and also injunction from forcibly dispossessing plaintiff/respondents, was also sought. The plaintiff/respondents were allotted booth vide memo No. EO(P)/1995/1718 dated 30.10.1996/5.2.1996, and the possession was delivered to the plaintiff/respondents on 18.3.1996. The plaintiffs claimed that the construction was raised after getting the design and building plan sanctioned. It was also the case of the plaintiffs that no basement was constructed in the booth. The plaintiffs further claimed that the application for grant of occupation/completion certificate was bound to be accepted or rejected in 20 days, otherwise it would be deemed to have been granted. Instead of granting occupation certificate, the plaintiff/respondents were served with a notice, and an order was R.S.A. No. 3903 of 2008 (O&M) -3- passed for resumption on 2.5.2002. The plaintiff/respondents preferred an appeal, which was dismissed in default of appearance. Thereafter notice was issued under Section 18(1) of the Act. The notice was also claimed to be illegal by pleading that there was no basement. The plaintiffs claimed that appropriate remedy with the defendant/appellants was to proceed under Section 55 of the Act and not under Section 17 for resumption. The suit was contested by the defendant/appellants on the plea that besides violation of rules and regulations, there was violation of the terms of allotment letter and, therefore, the provisions of Section 17 could be invoked for resumption of the booth. It was further the case of the appellant/defendants that the civil Court had no jurisdiction to entertain and try the suit. The learned Courts below have recorded concurrent finding of fact that the impugned order and notice were without jurisdiction, as the remedy with the appellant/defendants was to proceed under Section 55 of the Act for violation of rules and regulations and not under Section 17 of the Act. In view of the finding recorded, the learned Courts below held that as the authorities having acted in violation of the statute itself, Section 50 of the Act could not bar jurisdiction of the civil Court to entertain and try the suit. The learned counsel appearing on behalf of the appellants contends that this appeal raises the following substantial questions of law: - “1. Whether the jurisdiction of the civil Court was R.S.A. No. 3903 of 2008 (O&M) -4- barred under Section 50 of the Haryana Urban Development Authority Act? 2. Whether the learned Courts below were justified in decreeing the suit by setting aside the order passed under Section 17 of the Haryana Urban Development Authority Act, though the order of resumption was passed due to illegal construction of basement, and due to illegal occupation thereof?” In support of the substantial questions of law, the learned counsel for the appellants has referred to Section 50 of the Act, which bars the jurisdiction of the civil Court to interfere with the orders passed under the Act by the authorities. It is also the contention of the learned counsel for the appellants that besides violating rules and regulations, the construction of basement is hit by the terms of the allotment, which entitled the appellant/defendants to resume the booth allotted. On consideration of matter, I find no force in the contentions raised by the learned counsel for the appellants. Nothing could be pointed out from the letter of allotment which could lead to the conclusion that violations envisaged under Section 55 of the Act are covered under the allotment letter also. Once a specific provision to deal with violation of rules and regulations has been made in the Act, the defendant/appellants were bound to follow the specific provision than resorting to general section, to seek resumption of property under Section 17 of the Act. The learned Courts below, therefore, were justified in holding that the impugned order and notices were without jurisdiction, as no R.S.A. No. 3903 of 2008 (O&M) -5- order could be passed under Section 17 of the Act qua violations covered under Section 55 of the Act. The learned Courts below were also justified in holding that the jurisdiction of the civil Court could not be said to be barred, as authorities under the Act admittedly acted in violation of the provisions of the Act itself in ordering resumption of the booth by invoking provisions of Section 17 of the Act, instead of specific provisions in the Act dealing with such violations. This substantial questions of law are answered against the appellant/defendants. No merit. Dismissed in limine. (Vinod K. Sharma) Judge March 18, 2009 R.S.