HARYANA URBAN DEVELOPMENT AUTHORITY Vs. SATPAL GUPTA

JUDGEMENT

(1.) This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, 'the Code') challenging concurrent findings of facts recorded by both the Courts below to the effect that notice dated 30-3-1995 (Ex. P-3) issued by the defendant-appellants calling upon the plaintiff-respondent to demolish the building of House No. 1127, Sector 13, Urban Estate, Karnal is illegal and not binding on the rights of the plaintiff-respondent. The plaintiff-respondent after obtaining sanction of the site plan had erected the building on the plot. He was issued an occupation certificate on 24-6-1988 (Ex. P-1) by the defendant-appellants. It has been proved on record that the occupation certificate was issued by the defendant-appellants. It has not been the case of the defendant-appellants that the plaintiff-respondent had raised construction in addition to the construction already raised at the time of issuance of occupation certificate on 24-6-1988 (Ex. P-1). In this regard, statement of Jaspal Singh, Junior Engineer (P.W. 2) is significant wherein he stated that after completion of the construction, he inspected the building and the occupation certificate was issued thereafter. When the certificate was exhibited, no objection was raised with regard to its admissibility. Both the Courts below have not permitted the objection concerning admissibility at any later stage and in this regard reliance has been placed on the judgment of the Supreme Court in the case of P.C. Purushothama Reddiar v. S. Perumal, AIR 1972 SC 608. The issuance of notice after about 7 years in the year 1995, has been held to be altogether illegal because under Section 55 of the Haryana Urban Development Authority Act, 1977 (for brevity, 'the Act'), such a notice could be issued within a period of six months of the raising of construction. The omission to produce any documentary evidence showing that occupation certificate Ex. P-1 had never been issued by the defendant-appellants has been considered sufficient for raising the presumption in favour of issuance of a certificate. For example, neither the dispatch register has been produced nor the official who had issued the certificate has been brought into the witness box to disprove the genuineness of the document. Therefore, a lawful inference has been drawn that occupation certificate (Ex. P-1) was issued by the defendant appellants as per rules. Accordingly, both the Courts below have taken the view that notice dated 30-3-1995 (Ex. P-3) contrary to the provisions of Section 55 of the Act and was, thus, liable to be set aside being illegal.

(2.) Having heard the learned counsel at a considerable length, I am of the view that no interference of this Court in exercise of jurisdiction under Section 100 of the Code is required as no question of law, much less a substantive question of law has been raised in this appeal. It has been concurrently found that occupation certificate was issued on 24-6-1998 (Ex. P-1) and about seven years thereafter, notice has been issued on 30-3-1995 (Ex. P-3). Such a course is not permissible according to Section 55 of the Act, as it could have been done only within a period of six months. The objection regarding admissibility of Ex. P-1 raised at the belated stage has been rightly rejected by placing reliance on the judgment of the Supreme Court in the case of P.C. Purushothama Reddiar (supra). The view has been followed by the Supreme Court in the cases of Narbada Devi Gupta v. Birendra Kumar Jaiswal (2003) 8 SCC 745 : (AIR 2004 SC 175) and R. V. E. Venkatachala Gounder v. Arulmigu Viswesaraswami and V.P. Temple, (2003) 8 SCC 752 : (AIR 2003 SC 4548). In the later case the Supreme Court has pointed out two different classes of objections by observing in para 20 and the same read as under :-

(3.) When the facts of the present case are examined in the light of the principles laid down by the Supreme Court, it becomes evident that the mode of proving 'occupation certificate' (Ex. P-1) had not been objected to at an appropriate stage which might have enabled the plaintiff-respondent to meet the objection or to resort to better mode of proof. There was a lawful presumption against the defendant-appellants that they condoned any irregularity in the mode of proof. Moreover, Jaspal Singh P.W. 2 who is a junior engineer has deposed that after completion of building, he inspected it and then issued occupation certificate. Therefore, no doubt is left with regard to issuance of occupation certificate (Ex. P. 1) by the defendant-appellants. The objection with regard to jurisdiction of the Civil Court has also been overruled by following the principle that notice Ex. P-3 was not issued in exercise of powers under the Act and that the principles of natural justice stood violated. Therefore, there is no merit in this appeal.