HUDA Vs. SHEELA GUPTA

JUDGEMENT

(1.) The appellants-defendants are in Regular Second Appeal against the concurrent findings of fact, whereby suit seeking declaration and permanent injunction filed by the respondents-plaintiffs, has been decreed on the premise that notices under Section 17(3) could not be served, whereas notice under Section 55 of the HUDA Act 1977 should have been served.

(2.) He further submits that notice contained two violations, one with regard to elevation of the plot and another one change of user of the plot and trading of LML Scooter on the said plot which is an industrial plot. In the plaint, the plaintiff admitted that they have been using the building/plot for trading of the LML Scooter and as well as Service centre. The service centre would fall within the purview of Clauses 11 and 14 of the terms and conditions of the Allotment Letter and, therefore, notice under Section 17(3) was served upon. The trial Court and the lower Appellate Court has erroneously held that notice under Section 55 of the 1977 Act was required to be served as the provision of Section 17(3) deals with the non-payment of the installments towards price of plot. Mr. Som Nath Saini, Advocate during the course of hearing of arguments has drawn the attention of this Court to the provision of Section 17 Sub Section 3 of 1977 Act and submits that aforementioned provision would apply, as the HUDA has power to issue notice to allottee whenever there commits breach of any condition of sale and, therefore, notice, challenged in the suit was rightly served.

(3.) Even the trial Court did not have jurisdiction to try the suit & remedy if any is to challenge the order passed under the Act i.e. before appropriate authority. In support of the contention, he has relied upon judgment of this Court rendered in RSA No.2934 of 2007, HUDA & another Vs. Shishu Pal and ors., thus prays substantial question of law arises for determination.