PUSHPA RANI Vs. MUNICIPAL CORPORATION

JUDGEMENT

(1.) This appeal has been filed against the judgment dated 10.12.2010 passed by the Additional District Judge, Gurgaon, dismissing an appeal filed by plaintiff-appellant (hereinafter referred to as 'the plaintiff') against the judgment and decree dated 29.07.2010 passed by the Additional Civil Judge (Senior Division), Gurgaon, whereby suit filed by her seeking relief of permanent injunction has been dismissed.

(2.) Smt. Pushpa Rani-plaintiff (appellant herein) filed a suit for permanent injunction alleging herself to be owner in possession of the suit property, detailed in para No.1 of the plaint, as per sale deeds dated 23.03.1994 and 07.07.1994 as well as civil court decree dated 10.08.1996 and 17.10.1996. It was submitted that site plan of the plaintiff was sanctioned by the defendant. She raised construction in the year 1996-97 and thereafter, in 1999, she made some changes therein. She submitted second site plan for some changes in construction. Vide letter dated 05.05.1999, defendant had allowed the plaintiff to raise construction as per said site plan. Thereafter, she obtained telephone, electricity, water line connection etc. She was regularly paying electricity, water, telephone charges and the house tax. However, she received a notice dated 18.10.2002 from the defendant under Section 208 of the Haryana Municipal Act, 1973 asking her to remove/demolish the unauthorized construction. As per the plaintiff, the said notice was illegal as the construction over the suit property was more than three years. No notice could be issued by the defendant after expiry of period of more than three years. Hence, the suit.

(3.) Upon notice, defendant (respondent) filed written statement taking preliminary objections with regard to cause of action, concealment of material facts, estopel, locus standi, suit being barred under Section 41 (h) of the Specific Relief Act, 1963, non-joinder/mis-joinder of necessary parties, jurisdiction etc. On merits, it was stated that the plaintiff had raised illegal, unauthorized construction against the permissible limits. It was denied that plaintiff had completed the construction in the year 1996-97. It was also denied that the plaintiff was owner in possession of the building. It was submitted that the plaintiff was found raising un-authorized construction in deviations of sanctioned plan and was covering excess area more than the permissible area. She had covered rear and open space. After getting a report dated 17.03.1999 from the Building Inspector, a notice dated 18.03.1999 under Section 208 of the Act was served upon the plaintiff and she was required to demolish the un-authorized construction. However, she failed to comply with the notice. Thereafter, notice under Section 235 of the Act was issued on 09.04.1999. Thereafter, plaintiff submitted revised site plan on 05.09.1999 under Section 208 of the Act along with application for compounding the un-authorized construction. The un-authorized construction was compounded by plaintiff vide resolution No.9 dated 15.09.1999. The said resolution was suspended by the Deputy Commissioner, Gurgaon and the Commissioner, Gurgaon. As per orders passed by this Court, Commissioner, Gurgaon issued a notice dated 22.12.2000 to plaintiff requesting her to demolish un-authorized construction, but she failed to do so. Thereafter, a committee was constituted under the chairmanship of Deputy Commissioner, Gurgaon regarding building plan compounding cases of Municipal Council, Gurgaon. Vide report dated 13.03.2002, it was decided that excess coverage raised in commercial building would also be compounded upto 10% of the permissible area and upto 50% of the permissible limit in case of commercial building. However, the Government annulled the decision of the Deputy Commissioner, which was taken in a meeting held on 13.03.2002 and the resolution No.3 dated 26.03.2002. Therefore, the defendant issued a notice dated 18.10.2002 to the plaintiff. It was further stated that the plaintiff raised construction of basement and ground floor area of 1163 Sq. feet. She had not applied for completion certificate, so, the building of the plaintiff was not presumed to be complete under the Building Bye-laws, 1982. All other allegations made in the plaint were denied and prayer for dismissal of the suit was made.