HITENDER DAWAR Vs. MUNICIPAL CORPORATION, GURGAON

JUDGEMENT

(1.) The present regular second appeal has been filed by the plaintiff, who is aggrieved against the concurrent findings of the Courts below, whereby his suit for permanent injunction has been dismissed. The dispute pertains to building bearing municipal number 351/8 situated at New Colony More, Gurgaon. The pleadings in the plaint were that vide order dated 27.12.1995, the Executive Officer had sanctioned the raising of the construction and the construction was completed in the year 1997. The officials of the defendant had visited the spot in the year 1997 and reported that there was excess coverage by the plaintiff and a revised site plan by the defendants in the year 1997 was approved on composition basis vide their resolution No. 19(3) dated 15.09.1999 and accordingly the site plan was sanctioned. However, the Deputy Commissioner suspended the resolution vide notice dated 17.12.1999 and after that the composition fee was not accepted and notice dated 13.04.2002 was served upon the plaintiff and the defendant threatened to demolish the construction. Accordingly, it was averred that in view of Section 208 of the Haryana Municipal Act, 1973 (for short 'The Act'), no action can be taken since the period of six months had expired before the issuance of the said notice and the threat of demolition was hanging upon the plaintiff and hence, the suit.

(2.) Written statement was filed by the defendant-Municipal Committee, Gurgaon wherein, various preliminary objections were taken and it was mentioned that unauthorized construction was being raised in violation of the sanctioned building plan and was noticed by Building Inspector on 02.04.1996 and on his report, notices were served upon the plaintiff under Sections 208/209 of the Act and the plaintiff was asked to stop the unauthorized construction and demolish the construction made. The fact of submitting revised building plan on 27.08.1996 was admitted which was sanctioned/compounded vide resolution No. 19(3) dated 15.09.1999 subject to the approval of the Deputy Commissioner but he, in exercise of his power under Section 246 of the Act, suspended the resolution which was confirmed by the Commissioner, Gurgaon Division on 10.12.1999. Accordingly, the memo dated 22.12.2000 was issued to demolish the unauthorized construction and the compounding fee was not received and thus building was not regulated. Accordingly, it was submitted that the plaintiff had constructed the building in violation of the sanctioned building plan despite issuance of notice to them and they have not removed the unauthorized construction.

(3.) On the basis of the pleadings, the trial Court framed the following issues:-