HARYANA STATE AND ORS. Vs. SATISH KATARIA

JUDGEMENT

(1.) This is a revision petition directed against the order dated 21st February, 2002 passed by the Additional District Judge, Gurgaon who has upheld the order dated 6th April, 1999 by which the Civil Judge (Junior Division), Gurgaon has issued interim direction under Order XXXIX Rules 1 and 2 read with Sec. 151 of the Code of Civil Procedure, 1908 (for brevity , 'the Code'). The defendant -petitioners were restrained from demolishing construction raised by the plaintiff - respondent over the disputed property till the final disposal of this suit.

(2.) Defendant -petitioner No.2 issued a notice under Sub -section (2) of Sec. 12 of Haryana Development and Regulation of Urban Area Act, 1975 (for brevity, 'the Act') to the plaintiff -respondent proposing demolition of alleged illegal construction raised by him over his plot. The plaintiff -respondent filed a civil suit No.863 dated 14th December, 1998 seeking declaration that the said notice may be declared as illegal, null and void etc. He has also claimed relief of permanent injunction restraining the defendant petitioners from taking action against the plaintiff -respondent by demolishing the alleged construction. It is asserted that the suit property was purchased by the plaintiff -respondent vide registered sale deed dated 28th July, 1997 and that the property on which the construction has been raised fell within the municipal limits of Gurgaon and no notice could be given by defendant -petitioner No.2 and, therefore, the notice was alleged to be without jurisdiction. It was further alleged that 5 other shops adjoining the shop of plaintiff -respondent owned by various other persons have also been constructed but no notice of demolition has been served on them.

(3.) In the written statement, the defendant -petitioner No. 1 has taken the stand that the issuance of notice was not without jurisdiction as there was ample provision in the Haryana Development and Regulation of Urban Areas Act, 1975. It was claimed that the plaintiff -respondent had raised unauthorised construction which was within the prohibited limits of 900 metres of Ammunition Depot of Indian Air Force Station, Gurgaon. The allegation that no opportunity of hearing was given has been controverted by asserting that adequate opportunity of hearing was given to the plaintiff -respondent before the issuance of notice. It was in these circumstances that an application under Order XXXIX Rules 1 and 2 read with Sec. 151 of the Code was also filed alongwith the suit. Civil Judge allowed the application restraining the defendant -petitioners from demolishing the construction raised by the plaintiff -respondent over his property till the final disposal of the suit. On appeal filed by the defendant -petitioners, the Additional District Judge affirmed the order passed by the Civil Judge by observing that the suit of the plaintiff -respondent fell within the municipal limits of Gurgaon and the defendant -petitioners prima facie had no authority to issue any notice of demolition and hence it has no jurisdiction for issuance for such notice. He observed that only Municipal Committee, Gurgaon was the competent authority to issue such a notice. He has also referred to a letter issued by the Commissioner and Secretary to Government Haryana, Local Bodies Department in the year 1993 whereby unapproved colonies including Rajiv Nagar where the disputed property is situated were regularised and Municipal Committee, Gurgaon was authorised to sanction the plan. Another argument of the defendant -petitioners that the construction has been raised in prohibited area of 900 metres from Ammunition Depot of Indian Air Force Station, Gurgaon has also been rejected on the ground that a similar dispute was raised before this Court in Civil Writ Petition No.6669 of 1988 and this Court in its order dated 18th March, 191 has observed that the no action would be taken against the writ petitioner till such an action is initiated against Maruti Udyog Limited and residents of Sector 14 developed by HUDA and other similarly situated buildings within a distance of 1000 yards from the crest of the outer periphery of explosives area of No. 54 ASP, Air Force Station, Gurgaon. The Additional District Judge has also noticed that the Municipal Committee, Gurgaon had asked the Deputy Commissioner to re -think about his letter dated 27th October, 1998 whereby inhabitants of Rajiv Nagar were directed to demolish illegal construction. The reason for requesting the Deputy Commissioner to re -think was that the colony was authorised one and the Municipal Committee had already charged development charges from various persons. It is in these circumstances that the present revision petition has been filed.