STATE OF HARYANA Vs. K L K SINGH

JUDGEMENT

(1.) This Regular Second Appeal has been filed by the defendants-State of Haryana and others, against the judgment and decree dated 29-11-2001 passed by the Additional District Judge, Panchkula, whereby the appeal filed by the plaintiff was accepted, the judgment and decree dated 3-11-1999 passed by the trial Court were set aside and the suit of the plaintiff was decreed.

(2.) Lt. Gen. K.L.K. Singh (Retd.) (plaintiff) had filed suit for permanent injunction against the defendant-appellants, alleging therein that he and his wife had owned 2 bigha 15 biswa of land in village Naggal Mogi Nand and that after retirement from Army, he wanted to construct a residential house therein in order to look after the farm effectively. It was alleged that in this regard, the plaintiff moved application to the Deputy Commissioner, Ambala on 26-4-1990 for grant of permission to construct the said residential house, as required under the provisions of the Punjab New Capital (Periphery) Control Act, 1952 (hereinafter referred to as the Act). It was alleged that thereafter, another application in this regard was also submitted by the plaintiff and his wife jointly to defendant No. 1 i.e. Director, Town and Country Planning, Haryana, under certificate of posting on 18-5-1990 along with relevant documents. It was alleged that nei- ther the plaintiff nor his wife received any communication either from the Deputy Commissioner, Ambala or defendant No. 1, i.e. Director, Town and Country Planning, Haryana. It was further alleged that the plaintiff started raising the construction of the house in question in the last week of August, 1990 under the bona fide belief that in view of the provisions of Section 6(6) of the Act, the sanction was deemed to have been granted to him and his wife for construction of the said house without imposition of any condition. It was alleged that the plaintiff was surprised when he received show cause notice dated 5-11-1990 from defendant No. 2 i.e. District Town Planner, requiring the plaintiff to stop further construction and to appear in his office and to show cause as to why he should not be ordered to restore or to bring it in conformity with the provisions of the Act, it was alleged that the plaintiff gave detailed written reply dated 10-12-1990 explaining the whole background pointing out that the show cause notice was contrary to law and facts and deserved to be withdrawn. It was alleged that the plaintiff did not receive any information from the defendants with regard to his reply to the notice nor he was afforded any opportunity to substantiate his reply. On the contrary, he received memo dated 10-12-1990 issued by defendant No. 2. It was further alleged that the defendants also pasted memo dated 19-12-1990 on the building in question requiring the plaintiff to restore the building to its original position etc. within 24 hours. It was alleged that in fact, the building in question was constructed by the plaintiff and his wife validly and legally in accordance with the building plans submitted along with the application upon which no order in writing was passed by the Deputy Commissioner and after expiry of three months, the permission was deemed to have been given without imposing any condition etc. and therefore, the said permission could not be legally, withdrawn as the construction had already completed. It was alleged that the various show cause notices and the orders passed by the defendants were illegal and void and not binding on the rights of the plaintiff.

(3.) The suit was contested by the defendants by filing written statement. Various preliminary objections were raised. On merits, it was alleged that the land of the plaintiff fell within the Chandigarh periphery which had been declared a controlled area under Section 3 of the Act. It was denied that any application was received by the Director, Town and Country Planning, Haryana on 18-5-.1990 as alleged by the plaintiff. It was further alleged that as per the field staff of the defendants, the plaintiff was found to have started raising construction of two rooms. It was alleged that thereupon the requisite notice was issued to the plaintiff. It was further alleged that in the meanwhile, the plaintiff started further construction, whereuon another show cause notice was issued to the plaintiff and the plaintiff was given opportunity of personal hearing to appear before the District Town Planner on 28-11-1990 but he did not appear and sought adjurnment and again the plaintiff did not appear and thereupon necessary orders were passed requiring the plaintiff to restore the building to its original position.