SECOND APPEAL 1152 of 2004 on 1 September 1989

IN THE HIGH COURT OF PUNJAB AND HARYANAAT CHANDIGARH

Regular Second Appeal No. 1152 of 2004Date of Decision : December 10,2009

Jagdish Rai

Versus

....Appellant

Market Committee, Madlauda and others

.....Respondents

CORAM : HON’BLE MR. JUSTICE T.P.S. MANN

Present : Mr. Arun Singal, Advocatefor the appellant.

Mr. Amit Sharma, Advocate for respondents No. 1 and 2.

Mr. H.R. Munjal, Assistant Advocate General, Haryanafor respondent No.3.

T.P.S. MANN, J.

After remaining unsuccessful before both the Courts belowin his suit for permanent injunction, the plaintiff is now before thisCourt by way of second appeal preferred under Section 100 of the Codeof Civil Procedure.

In his plaint, the plaintiff had averred that plot No.62situated within the area of New Grain Market, Madlauda was allotted tohim in open auction of 1.9.1989 for an amount of Rs.2,12,000/-. Thesale consideration was paid by him in installments. It being the corner plot, the plaintiff purchased the same for a higher amount so as to get thebenefit of both the sides, i.e. two roads. He constructed the suitproperty in the month of January, 1990 in the form of shops, i.e. shopsNo.62, 62-A, 62-B and 62-C. Three of the shops were under tenancy ofdifferent persons who were doing their respective businesses from thesaid shops and after taking their sales tax numbers. All these factsregarding construction of the suit property in the shape of various shopswere in the knowledge of the Market Committee from the verybeginning. Even other corner plots/shops in the Market Committee hadbeen divided in many parts according to the convenience of the ownersas there was shortage of plots. However, on 22.6.1998, MarketCommittee, Madlauda issued notice No.368 to the plaintiff requiringhim to close the three shops permanently which were opening towardseastern side, besides closing the stair case, within seven days of itsreceipt. In the event of non-compliance of the notice, the MarketCommittee threatened to close the same at the expenses of the plaintiffand then to recover the same as arrears of the land revenue. Accordingly,the plaintiff challenged the notice by claiming that the same was illegal,arbitrary, null and void and not binding upon him as there was no loss orinjury to the defendants. Though he had approached the MarketCommittee by requesting it not to take any action yet his request was notheeded to and hence, he filed the suit for permanent injunction.

The defendants opposed the suit by filing a joint written statement wherein, apart from taking preliminary objections regardinglocus standi, cause of action, maintainability and non-service ofstatutory notice under Section 31 of the Punjab Agricultural MarketingProduce Act, 1961, they stated that shed No.62 was allotted to theplaintiff and the construction over the plot was to be raised according tothe terms and conditions of the allotment letter and other rules andregulations of the defendants. The plaintiff did not follow thoseconditions and raised unauthorised construction over the suit property.No sanction was given by the defendants for carrying out unauthorisedconstruction. Since the plaintiff had raised construction in violation ofterms and conditions of the allotment, the defendants issued notice dated22.6.1998, which was perfectly legal and not arbitrary, as alleged.They, accordingly, prayed for dismissal of the suit with costs.

Arguments

While non suiting the plaintiff, both the Courts below heldthat though the plaintiff claimed to have raised constructionimmediately after allotment of shop in his favour in the year 1990 yetthere was no evidence on record in that regard. Neither he produced anymap/plan on file nor he produced any document to establish that he hadobtained necessary sanction and raised construction in accordance withthe same. On the other hand, as per clause 14 of the letter of allotmentEx.P3 no fragmentation of any building site was allowed and, therefore,notice was issued to the plaintiff for having fragmented his shop in fourparts, namely, 62, 62-A 62-B and 62-C. Clause 21 of the letter of allotment required that the plans of construction be first got approvedfrom the then Administrator, Haryana State Agricultural MarketingBoard or any such other officer as may be authorised and only then theconstruction could be raised but the plaintiff failed to show anydocument from which it could be presumed that he had got the planapproved. Therefore, the defendants were justified in issuing showcause notice to him and, thus, the plaintiff was not entitled to the reliefof permanent injunction.

Learned counsel for the parties have been heard and withtheir able assistance, the records of the Courts below thoroughlyperused.

It is not in dispute that plot No.62 was allotted to theplaintiff. As per clause 7 of the allotment letter, the allottee wasrequired to complete the construction of the shop/booth within a periodof two years from the date of allotment after getting the plan approvedfrom the Market Committee. Clause 14 of the allotment letter was clearenough that no fragmentation of any building site was allowed. Clause22 required the allottee not to increase upon or use for any purpose,other than public passage, the covered passage (verandah) in front of orat the side of the building.

Neither in his plaint nor in his deposition as PW1, theplaintiff stated about getting the plans prepared for raising construction over the shed allotted to him or getting it approved from the concernedauthority. In fact, in his cross-examination conducted on behalf ofdefendants No.1 and 2, he clearly stated that he did not get the planapproved in respect of the shop allotted to him. As such, theconstruction raised by the plaintiff was an unauthorised one. Thoughthe plaintiff claimed that no objection was raised when he undertook theconstruction yet it stands mentioned in the notice in question that whenthe plaintiff had installed three shutters in the shops in question, he wasstopped from doing so but later on it had come to the notice of theMarket Committee that the said shutters had again been opened.Moreover, as per clause 14 of the allotment letter, the plaintiff was notpermitted to go in for fragmentation of the allotted site so as to set upthree more shops thereupon apart from using some portion of it for hisown business. It is the case of the plaintiff himself that whileundertaking the construction it was done in a manner so as to set upmore than one shop although his explanation was that it being a cornershop, he could do so as owners of other corner shops were doing thesame because of shortage of the plots. Any alleged violation of clause14 of the allotment letter by some other allottees of corner plots wouldnot give any right to the plaintiff to carry out unauthorised constructionby dividing plot meant for one booth/shop into four portions. Similarly,mere issuance of licence in favour of three different firms, whostarted/continued their respective businesses from the shops unauthorisedly constructed by the plaintiff on the plot meant forconstruction of only one shop would not give any right to the plaintiff orthose firms to carry on their businesses or to get the unauthorisedconstruction regularised.

Issues

The concurrent findings of facts arrived at by the learnedCourts below cannot be termed as either perverse or suffering from anyillegality or infirmity as they were based upon correct appreciation ofthe material evidence on the file. Therefore, they cannot be reversedand, that too, in a second appeal, which is maintainable only on somesubstantial question of law and not otherwise. No substantial questionof law, much less the law points, as formulated by the appellant, arisesfor determination.

The appeal is, therefore, dismissed.

December 10, 2009satish

( T.P.S. MANN ) JUDGE

Whether to be referred to the Reporters : YES / NO