R.S.A. No. 2406 of 2011 (O&M) [ 1 ] IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH R.S.A. No. 2406 of 2011 (O&M) Date of Decision: December 14,2012 Municipal Council now Municipal Corporation, Gurgaon ................................... Appellant Versus Om Apartments Pvt. Ltd. .............................. Respondent Coram: Hon'ble Ms. Justice Ritu Bahri Present: Mr. Rajiv Saini, Advocate for Mr. Gaurav Singh Hooda, Advocate for the appellant. Mr. Sanjay Vij, Advocate for the Caveator-respondent. ... RITU BAHRI, J. (Oral) C.M. Nos. 6655-C and 6656-C of 2011 For the reasons given in the applications, the delay of 149 days in filing the appeal and 40 days in re-filing the appeal is condoned. Civil miscellaneous applications are disposed of. R.S.A. No. 2406 of 2011 This Regular Second Appeal is against the judgment of the lower Appellate Court dated 19.5.2010 passed by the Additional District Judge, Gurgaon, whereby the appeal against the judgment and decree dated R.S.A. No. 2406 of 2011 (O&M) [ 2 ] 30.3.2010 passed by the Additional Civil Judge (Sr. Divn.), Gurgaon, has been dismissed. The plaintiff had filed a suit for permanent injunction against the defendants-Municipal Council, Gurgaon restraining them from sealing, demolishing the suit property and interfering in peaceful use and enjoyment of the same by tenant of the plaintiff. The plaintiff company is a promoter and developer of Om Apartments. The company got approved by the respondents on 3.1.1995 and thereafter raised the construction. The plaintiff had deposited the development charges amounting to `2,25,877/- on 4.1.1995. Thereafter, the plaintiff submitted site plans which were sanctioned vide resolution No.2(6) dated 29.6.1995. Finally, the site plans were sanctioned on 30.9.1996. After constructing the commercial complex, one show room was given to M/s Dhingra Motors Pvt. Ltd. on rent vide registered lease deed dated 20.11.2001. Since then, M/s Dhingra Motors Pvt. Ltd. have been operating as show room/godown and office of Telco vehicles. A notice dated 11.2.2003 was issued by the defendants to comply with the sanctioned site plan as the plaintiff had converted the separate units of shops into single commercial building. The plaintiff did not comply with the notice. Thereafter, a notice under Section 208 of Haryana Municipal Act dated 14.3.2003 was issued. In this background, the suit was filed. R.S.A. No. 2406 of 2011 (O&M) [ 3 ] On notice, the defendants filed written statements and took preliminary objections. It is contended that the suit was bad for want of notice under Section 52 of the Haryana Municipal Act, 1973 and no cause of action approved for filing the present suit. Filing of the suit was barred by Section 41(h) of Specific Relief Act, 1963. The trial Court framed the following issues:- 1.Whether the defendants are liable to be restrained from selling the suit property, damaging and demolishing it and interfering in the peaceful use and enjoyment of the same by tenants inducted by the plaintiff as prayed for? OPP. 2.Whether the suit is bad for mis-joinder and non- joinder of necessary parties? OPD 3.Whether the plaintiff has no cause of action to file the present suit? OPD. 4.Whether the plaintiff is stopped by his own act and conduct to file the present suit? OPD. 5.Whether the plaintiff has no locus-standi to file the present suit? OPD. 6.Whether the suit is not maintainable in the present form? OPD. 7.Relief. After going through the evidence led by the R.S.A. No. 2406 of 2011 (O&M) [ 4 ] parties the trial Court decreed the suit of the plaintiff on the ground that the building in dispute was a commercial building as per sanctioned site-plan Ex.D1 and D2 and the intervening walls were only meant for separating units/shops and on account of removal of said intervening walls, there was no structural change in violation of the sanctioned site- plan. The notice dated 10.2.2003 under Section 208 of the Haryana Municipal Act and subsequent notices Ex.D4 to Ex.D6 were barred by time because the said notices have been issued after the expiry of period of six months from the completion of construction as contemplated under Section 208 of the Haryana Municipal Act, 1973 because it has come in evidence that M/s Dhingra Motors Pvt. Ltd. has been occupying the disputed commercial building as tenant since 2001 as per registered lease deed dated 20.11.2001 (Ex.P- 19). The Municipal Council could not issue the notices after expiry of six months. On appeal, the findings recorded by the trial Court have been affirmed. There is no question of law much less the substantial questions of law for adjudication in the present case. Dismissed. ( RITU BAHRI ) 14.11.2011 JUDGE rupi