FARIDABAD COMPLEX ADMINISTRATION v.

YADUETC.

DECEMBER 11, 1996

[K. RAMASWAMY AND G.T. NANAVATI, JJ.]

Haryana Municipalities Act, 1973 : Section 208.

Faridabad Complex Administration (Regulation and Development) C Act, 1972: Section 15 and (ii( l)(f).

Unauthorised co11strnction-Notice for demolition-Limitation period foi-<:ondition for issue of notice-Construction of shops by B and M-Notice issued to them for unauthorised constrnction-1hereafter they sold D the land to respondents-Suit instituted by respondents for injunction restraining the appellant-Administration from demolishing the constructiot>--<Jround that notices issued to B and M were beyond the period of limitatioTt--Suit decreed by Trial Court and a/finned by First Appellant Court-Second appeal dismissed by High Court-Appeal before Suprenie Court-Held the appellant succeeded to the property held by Ba/labgarh E Municipality-The notice issued under section 208 is .relatable Ito unauthorised construction on the premise that the person proceeding with the construction is the owner of the property-The respondents had purchased the lands from B and it is not their case that B had title independent of the Municipality-Jn these circumstances, the limitation of Section 208 would not F arise-The decree granted by the Courts below held unsustainable-No injunction could be issued against the true owner i.e. appellant.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 894 of 1986 etc.

From the Judgment and Order dated 27.5.87 of the Punjab & Haryana High Court in R.S.A. No. 3339 of 1986.

D.V. Sehgal and Prem Malhotra for the Appellant.

H Rajiv K. Garg and N.D. Garg for the Respondents. 978

The following Order of the Court wa~ pelivered :

Theses appeals by special leave arise from the judgments of the Punjab & Haryana High Court, made on July 17, 1985 and September 11, 1985 dismissing the appeals in limine ./

The undisputed facts .are that one Biharilal and Mahipal attempted B to construct shops on the lands in question. Notices were issued to them for unauthorised construction. Thereafter, admittedly, they sold the lands to the respondents who filed suits for injunction restraining the appellant from demolishing the construction made by them on the premises that Section 208 of the Haryana Municipalities Act, 1973 (for short, the 'Act') C requires notice to be given within six months from the date of unauthorised construction. Since, admittedly, the notice was issued tcr Biharilal on March 18, 1982 and constructions were made sometime in February 1981, it was beyond the period of limitation. That plea found favour with the courts below and accordingly the Trial Court as well as the appellate Court D decreed the suit and affirmed the same. The High Court dismissed the second appeals in limine. Thus, \)iese appeals by special leave.

It is not disputed that the appellant is the successor in interest by operation of Faridabad Complex Administration (Regulation & Develop- E ment) Act, 1972 (Act 4 of 1972) and succeeded to the property held by Ballabgarh Municipality. Section 61(1)(1) of the Act provides that subject to any special reservation made or special conditions imposed by the State Government all properties of the nature mentioned in that Section specifically and situated within the Mnnicipality shall vest in and be under the control of the Committee and that all other properties which have already F vested shall thereafter vest in the Committee and shall be held and applied by the Committee for the purpose of Act, i.e., to say "(I) all lands ..... or other properties transferred to the Committee by the State Government or acquired by the Government by purchase or otherwise for public purpose".

It would be seen that all properties as enumerated in sub-section (1) of G Section 61 are possessed by the Ballabgarh Municipality. The appellant ' -. being the successor-in-interest, they stood transferred to and vested in the appellant by virtue of Section 15 of the Act.

In the written statement filed by the appellant, it was averred that notice was given to Biharilal to the effect that he was in "unauthorised H

SUPREME COURT REPORTS [1996] SUPP. 9S.C.R.

A occupation of the land" and he was constructing unauthorisedly. He had given a reply thereto stating that he had already transferred the land.

D.W.4, Krishan Lal had stated in his evidence that notice was issued to Biharilal earlier for unauthorised construction and reply thereto was received from him stating that he had already transferred the land. Thus, B it could be seen that the appellant had asserted the title over the land and the unauthorised construction carried thereon was asserted and notice on that premise was given to Biharilal. Admittedly, the respondents have purchased the properties from Biharilal and others. Thus, they being the successors-in-interest in title from Biharilal and others, the question emerges: whether they had the right to and title over the land in question and C whether notice could be issued against the appellant? Unfortunately, the courts below have not adverted these aspects and they have proceeded on the basis that notice for unauthorised construction was given under Section 208 of the Act. The Trial Court found thus:

D "Therefore, it is amply clear that notice dated 18.3:1982 served upon Bihari Lal. related to land other than the one involved in the previous litigation. Even if it is held that notice dated 18.3.1982 served upon Biharilal related to the site in dispute then also the same cannot be binding upon the plaintiff."

It is obviously incorrect finding recorded by the Trial Court since, admittedly, the respondents had purchased the lands from Biharilal and it is not their case that Biharilal had title independent of the Municipality. In these circumstances, the question arises : whether the notice issued by the appellant is vitiated by any error of law? It is seen that the notice issued under Section 208 is relatable to unauthorised construction on the premise that the person proceeding with the construction is the owner of the property. In this background, it is not their case that they are the owners and were proceeding with the constructions in accordance with law after obtaining permission for construction according to building rules. There- G fore, the limitation would arise only when it is asserted that they are the owners of the property and they were proceeding with the constructions in violation of the Municipal Rules. In these circumstances, the limitation of Section 208 would not arise. In this case, the finding of the courts below is clearly erroneous. There is no error in issuing notice for removal of the H unauthorised construction on the land of the appellant. Therefore, the

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• decree granted by the Courts below are clearly unsustainable. The High A Court has not adverted to and applied its mind to consider this aspect of

the matter. No injunction could be issued against the true owner, i.e., appellant.

Thus, the appeals are allowed and the suits stand dismissed. No costs.

T.N.A.

Appeals allowed.