PURAN CHAND Vs. MUNICIPAL CORPORATION

JUDGEMENT

(1.) This Regular Second Appeal is directed against the judgment and decree, dated 1.9.2011 passed by the learned District Judge Sirmaur at Nahan in Civil Appeal No. 33-CA/13 of 2009.

(2.) 'Key facts' necessary for the adjudication of this Regular Second Appeal, are that the appellant/plaintiff (hereinafter referred to as "the plaintiff" for the sake of convenience) filed a suit against the respondents/defendants (hereinafter referred to as the "defendants" for the sake of convenience) for permanent prohibitory injunction restraining the defendants from interfering, demolishing or raising any construction in the land comprised in Khewat Khatauni No.373min/621, Khasra No.503/161 min, measuring 1 Bigha 8 Biswas, situated at Mohal Paonta Sahib, Tehsil Paonta Sahib, District Sirmaur, H.P.. According to the plaintiff, he along with Ashok Kumar, Surinder Kumar, sons of late Sh. Jagat Ram, Rajinder Kumar, Anil Kumar, Shyam Singh were tenants on payment of bilmukta salana Rs.12/- over the suit land under the State of Himachal Pradesh since 1964. The plaintiffs and other tenants had become owners by virtue of Section 104 of the H.P. Tenancy and Land Reforms Act.. The plaintiff and other tenants had constructed their residential houses over the suit land since the time of their forefathers and were residing with their families. The electricity meter and water connections were in their names. The plaintiff applied for sanction of the map qua construction of three shops over the suit land before defendant No.1. He also deposited the site plan and the necessary fee of Rs.375/- in the name of his son, Rajender Kumar. Defendant No.1 issued a receipt bearing No. 46 of Book No.71, dated 17.2.2003. The plaintiff was under bona fide belief that the Municipal Council sanctioned the site plan and accordingly in the month of March 2004 constructed three shops over the suit land. The employees of defendant No.1 entered the suit land and threatened to demolish the shop on 17.1.2005.

(3.) The suit was contested by the defendants. According to the defendants, the State of Himachal Pradesh is owner of the suit land which is possessed by defendant No.1 being instrumentality of the State. The plaintiff and other persons mentioned in the plaint are not tenants over the suit land. They are trespassers with no right, title and interest. The revenue entries in their favour are collusive and fraudulent. The notice was served upon the plaintiff under Section 203 of the M.C. Act on 25.1.2003. The notice was replied on 7.2.2003. However, fact of the matter is that the plaintiff and Rajender completed the construction work of these shops without approval and sanction of building plan from M.C. Paonta Sahib. The defendant No.1 then again served the plaintiff and Rajender with a notice under Section 211 dated 12.5.2004 for demolishing the illegal construction. Defendant No.1 vide resolution dated 1.5.2004 decided to demolish illegal and unauthorized construction and served the notice which was replied by the plaintiff and Rajender on 26.6.2004. The building plan was returned to Rajender Singh on the ground that the defendant No.1 could not approve the same as the suit land was owned by the State of H.P. Moreover, the proposed construction was abutting to National Highway 72 and NOC was not obtained by the plaintiff from HP PWD and CPWD. According to the defendants, construction raised by the plaintiff was unauthorized and illegal.