Civil Revision No. 2169 of 2008. ::-1-:: IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH. C.R. No. 2169 of 2008. [O&M] Date of Decision: 10th August, 2009. State of Haryana Petitioner through Mr. R.D.Sharma, DAG, Haryana Versus Girish Chander Sharma Respondent through Mr. Divay Sarup, Advocate for Mr. Sumeet Goel, Advocate. CORAM: HON'BLE MR. JUSTICE SURYA KANT. 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? SURYA KANT, J. [ORAL) This Revision Petition is directed by the State of Haryana against the order dated 9.04.2007 passed by the learned Additional District Judge, Ambala whereby ad-interim restraint order against demolition of the Retail Outlet, which is in the process of installation by the respondent – plaintiff, has been granted, though the petitioner – State has still been permitted to proceed against the respondent – plaintiff as well as M/s Bharat Petroleum Corporation, in accordance with law. [2]. Notice of motion was issued and in response thereto, learned counsel for the parties have been heard. [3]. In order to appreciate as to whether the respondent – plaintiff has been able to satisfy the golden principles to be satisfied before granting ad-interim injunction, the original records have been summoned and perused. Civil Revision No. 2169 of 2008. ::-2-:: [4]. The record reveals that the respondent – plaintiff is a retired Army Officer, to whom a Retail Outlet has been allotted by M/s Bharat Petroleum Corporation Limited. The respondent is owner of agricultural land measuring 5 kanals 10 marlas approximately [2561 square meters] situated in village Saha, Hadbast No.93 on Ambala-Jagadhri road which he purchased vide sale deed No. 351 dated 29.8.1995. The respondent – plaintiff applied to the District Magistrate, Ambala to grant him 'No Objection Certificate' [NOC] for installation of the Retail Outlet. Upon receipt of his application, the District Magistrate-cum-Deputy Commissioner, Ambala invited comments from [i] the Superintendent of Police, Ambala; [ii], Sub Divisional Magistrate, Ambala; [iii] Fire Officer, Ambala Cantt.;[iv] Block Development and Panchayat Officer, Ambala; [v] Executive Engineer, National Highway, Panchkula;[vi] District Town Planner, Ambala and [vii] Divisional Forest Officer, Ambala. After receipt of the reports from these officers, the District Magistrate passed an order on 9.6.2003 recommending the grant of NOC to the respondent – plaintiff, a translated version of which reads as follows:- “All the Officers have submitted their reports in this office which are to the following effect:- The Superintendent of Police has issued No Objection Certificate in his report. The Sub Divisional Officer [Civil] Ambala has stated in his report that Girish Chander son of Shri Nihal Chand, r/o Khozkipur is owner of total land measuring 5 kanals 10 marlas comprised in Rect. No. 93, Killa No.102/9/1, 102/40/26[0-7] and 109/2 [4-13] situated in the revenue estate of village Saha. The Fire Officer, Ambala Cantt. has issued NOC by Civil Revision No. 2169 of 2008. ::-3-:: giving some suggestions. BDPO, Saha has issued NOC in his report. XEN [NH] Panchkula has stated in his report that this office has no objection in installation of Petrol Pump on this site. District Town Planner, Ambala has reported that this is not related to its office. Deputy Conservator of Forests, Ambala the said Company will have to apply in terms of Section 2 of the Indian Forest Act, 1980. On receipt of approval from the Government of India, the Company would be permitted to make path. You are, therefore, requested to grant permission for issuance of No Objection Certificate to the applicant”. [5]. Notwithstanding the above reproduced recommendations by the District Magistrate-cum-Competent Authority, the District Town Planner, Ambala slapped the petitioner with a show cause notice calling upon him to remove the on-going construction of the Retail Outlet, as the land had been allegedly notified and included in the 'controlled area'. Pertinently, at the time when NOC was recommended by the District Magistrate on 9.6.2003, the land was not within the 'controlled area'. The respondent – plaintiff appears to have responded to the said notice which, according to him, was filed by the authorities. However, the District Town Planner again issued a show cause notice to the petitioner, compelling him to approach the Civil Court. [6]. It further appears that the District Town Planner moved an application under Order 7 Rule 11 CPC for rejection of the plaint, inter-alia, on the ground that the Civil Court's jurisdiction is expressly Civil Revision No. 2169 of 2008. ::-4-:: barred in the matter. While deciding that application, the trial Court, unfortunately, without applying its mind, dismissed the application under Order 39 Rules 1 and 2 read with Section 151 CPC also. [7]. On an appeal, the Appellate Authority has set aside the said order after observing as follows:- “The facts of the present case are such that the District Administrative Authorities were acting in a most casual manner and the appellant is being condemned for no fault. With all due respects to the findings of the learned trial Court, this Court is to lay down that the trial Court has not exercised discretion vested in it properly and in accordance with the principles governing the grant or refusal of the injunction. The perusal of record also reveals that trial Court heard arguments on application under Order 7 Rule 11 CPC only and no indication is there if the arguments were heard on application under Order 39 Rules 1 and 2 CPC before disposing of the same. 10. As a sequel to the above said discussion the impugned order is set aside by accepting the appeal with costs. The respondents NO. 1 and 2 are restrained from interfering in the working of the appellant in any manner whatsoever. At the same time this Court would like to add that the culpability of the erring officials must be fixed so that they must understand that the cases are not to be deal with in casual manner. It is ordered that a copy of this order be sent to the Chief Secretary to Government of Haryana, Chandigarh for initiating proceedings against the erring officials. The Government will, however, be competent to proceed against respondent No. 3 or the appellant in accordance with law but before taking any action in the matter the losses will be got evaluated in terms of money from a approved valuer and demolition Civil Revision No. 2169 of 2008. ::-5-:: will not take place till the loss is compensated by the Government”. [8]. In my considered view, the issue as to whether the Civil Court, in such like cases, would have jurisdiction or not is a mixed question of law and fact which can be decided only at an appropriate stage. Suffice it to say that since the District Magistrate being the Competent Authority to recommend NOC, had already passed an order on 9.6.2003 and at that time the area was not a part of the 'controlled area', the respondent – plaintiff has made out a prima facie case. Since the Retail Outlet has been allotted to him and the delay in installation could entail cancellation, the balance of convenience also lies in his favour. Similarly, the demolition drive, if allowed to be carried out, is bound to cause irreparable loss and injury to the plaintiff. All the ingredients having been satisfied, no error of jurisdiction has been committed by the Appellate Court while granting the ad-interim injunction. However, the recommendations made by the appellate Authority to the Chief Secretary to take disciplinary action against the District Town Planner and/or other officials are set aside as such an action at this stage, may unwittingly prejudice the merits of the case. [9]. Disposed of. Dasti. August 10, 2009. ( SURYA KANT ) dinesh JUDGE