Raj Kumar and Others vs State of Haryana and Others

L.N. Mittal, J.—Plaintiffs have filed this revision petition under Article 227 of the Constitution of India, assailing order dated 12.04.2012 (Annexure P-5), passed by the trial court, and judgment dated 26.07.2013 (Annexure P-6), passed by the lower appellate court, thereby declining temporary injunction to the plaintiffs. Defendant No. 3--District Town Planner issued Show Cause Notices (Annexure P-7 Colly.) dated 20.03.2012 to the plaintiffs requiring them to show cause as to why unauthorised construction being raised by the plaintiffs be not demolished. The plaintiffs did not file any reply within the requisite period. Thereupon, defendant No. 3 passed orders dated 27.03.2012, issued on 30.03.2012 (Annexure P-9 Colly.), thereby requiring the plaintiffs to restore the disputed land to original state by demolishing the unauthorised construction. The plaintiffs in the suit have challenged the aforesaid Show Cause Notices and demolition orders. The plaintiffs sought temporary injunction restraining the defendants from demolishing the construction during pendency of the suit.

Defendants resisted the suit and application for temporary injunction and pleaded that earlier, plaintiffs'' predecessor-in-interest Tikka Sahib Singh had started unauthorised construction in the shape of roads in the same land and after serving Show Cause Notice, restoration order was issued on 17.03.2006. Thereafter, cost of restoration of the site to original state was recovered form the said Tikka Sahib Singh. The plaintiffs, after purchasing the suit land, have raised unauthorised construction in violation of Haryana Development and Regulation of Urban Areas Act, 1975 (in short - the Act) and the same has rightly been ordered to be demolished.

Both the courts below have declined to grant temporary injunction to the plaintiffs, who have, therefore, filed this revision petition to assail orders of both the courts below.

I have heard counsel for the petitioners and perused the case file.

Counsel for the petitioners contended that plaintiffs/petitioners received the Show Cause Notices on 22.03.2012 and they had seven days to reply to the same and they sent reply dated 26.03.2012 (Annexure P-8), which was received by defendants on 27.03.2012 within the requisite period of seven days, but the said reply has not been considered by defendant No. 3, while passing demolition/restoration orders on the ground that no reply had been received, and therefore, the restoration orders passed without considering the reply of the plaintiffs to Show Cause Notices are illegal.

I have carefully considered the aforesaid contention, but the same cannot be accepted. Counsel for the petitioners himself referred to statement (Annexure P-27), said to have been made by defendant No. 3 in proceedings under Order 39 Rule 2A of the Code of Civil Procedure. In the said statement, defendant No. 3 has stated that the reply was received on 29.03.2012, whereas the restoration orders had been passed on 27.03.2012, although dispatched on 30.03.2012 by the Dispatcher. There is no material on record to either depict that plaintiffs received Show Cause Notices dated 20.03.2012 on 22.03.2012 or to depict that the reply thereto was received by defendant No. 3 on 27.03.2012. On the contrary, according to the sworn testimony of defendant No. 3, the reply was received by him on 29.03.2012 i.e. after passing the impugned orders.

In addition to the aforesaid, the plaintiffs have failed to depict that they raised disputed construction after obtaining necessary sanction from the competent authority under the Act.

Besides it, the plaintiffs also had remedy to challenge the impugned demolition/restoration orders (Annexure P-9 Colly.) under the Act.

For all the reasons aforesaid, I find that the plaintiffs have miserably failed to make out the necessary three ingredients of prima facie case, balance of convenience and irreparable loss and injury for granting temporary injunction. Consequently, temporary injunction has been rightly declined to the plaintiffs by the courts below. There is no perversity, illegality or jurisdictional error in the impugned orders of the courts below so as to call for interference by this Court in exercise of power of superintendence under Article 227 of the Constitution of India. The revision petition is devoid of merit and is accordingly dismissed in limine.

However, nothing observed hereinbefore shall be construed as expression of opinion on merits of the suit. Civil Miscellaneous application for grant of stay bearing C. M. No. 21468-CII of 2013 is disposed of as having been rendered infructuous.