Smt. Hoshiari Devi and Others vs State of Haryana and Another

Rakesh Kumar Garg, J.—As per the averments in the Civil Suit, Baljit Singh (predecessor in interest) of the appellants was allotted a plot measuring 100 square yards in rectangle and killa No. 247/1/4/6 under 20 point programme vide gift deed dated 02.03.1977 in the revenue estate of village Murthal, Tehsil and District Sonipat by the State of Haryana through Gram Panchayat of village Murthal. Even the actual possession was given to him at the time of execution of gift deed. Thereafter, he constructed a plot as per the terms and conditions of the gift deed by spending entire income and savings of his life. He got electric connection in the house and renovated the same after his retirement in the year 1995 by spending Rs. 1,00,000/-. He performed the marriage of his son and daughter in the said house. It is the further case of the appellants that defendant No. 2 issued a notice u/s 12 of Punjab Schedules Roads and Controlled areas (Restriction of Unregulated) Development Act, 1963 (for short ''the Act'') to stop further construction and to appear in the office of defendant No. 2, whereas no date and time was given. Plaintiff alongwith other people of the locality visited the office of the defendant No. 2 on 20.06.2011, where they were assured by the defendant that they would not do anything. However, on 01.07.2011 at about 6.00 a.m. the officials of defendant No. 2 came alongwith bulldozers and other machineries alongwith police officials and officials of District Administration and they demolished the sole dwelling house even without permission to him and his family members to remove their belongings and domestic articles. Even the officials of defendant No. 2 had taken away two trucks of bricks after demolition.

Against the aforesaid order of the officials, appellants filed an appeal before the Tribunal Constituted under Act No. 41 of 1963 challenging the said action. The Tribunal vide its order dated 18.11.2002 allowed the appeal of the appellant and three others, by setting aside the show cause notice as well as other proceedings in pursuance thereof. It is the further case of the appellant that after the order of the Tribunal, he is entitled to compensation/damages for demolishing the sole dwelling house of the appellant in an arbitrary and illegal manner. The appellant has claimed Rs. 2,00,000/- as damages to him and his family members who suffered physically and mentally at the hands of the defendants. According to him, even the legal notice did not work out. Hence, the present suit for mandatory injunction has been filed on behalf of the appellant seeking directions to the defendants to hand over after constructing a house of the same size and accommodation with same class building material, fully furnished as shown in the site plan attached with the plaint and pay Rs. 25,000/- as litigation expenses and sundry charges Rs. 2,00,000/- as charges for mental harassment and physical torture to the plaintiff and his family members Rs. 1,00,000/- as charges for mental harassment and physical torture to the plaintiff and his family members, Rs. 1,00,000/- spent by him for renovation of the house, Rs. 1,50,000/- for illegally demolishing the sole dwelling house or in alternative directing the respondents to pay Rs. 4,75,000/- approximately for illegally and forcibly demolishing his house alongwith interest @ 18%.

Upon notice, defendants appeared and filed written statement raising various preliminary objections including that the plaintiff has claimed compensation of Rs. 4,75,000/- but has not affixed the ad-valorem Court fees on the claim amount and therefore, the suit was not maintainable and liable to be dismissed.

On merits, the defendants have taken a specific plea that neither specific date of construction of house nor actual amount which has been allegedly spent on the construction has been mentioned. No date of renovation of the house has been given. No details of the articles and valuables alleged to be taken have been given. However, it was admitted that defendant No. 2 issued a notice u/s 12 of the Act. Plaintiff was asked to stop the construction over the site in dispute and they were required to appear before respondent No. 2 in his office. Plaintiff had not visited his office. The defendants were duty bound to take action against those who have raised unauthorized construction without obtaining ''No Objection Certificate'' under the Act. Plaintiff has failed to respond to the notice and thus defendant No. 2 had ordered demolition of the unauthorised construction being raised by the plaintiff over the house in dispute. It was further submitted that defendant No. 2 and his staff had acted in accordance with law. The plaintiff and his family members were given sufficient opportunity to remove the personal belongings and other goods from the portion of the house which was sought to be demolished, since the plaintiff had violated the provisions of the Act and he was not entitled to any compensation. Dismissal of the suit was prayed for.

The following issues were framed by the trial Court:-

Whether the defendants have demolished the dwelling house of the plaintiff illegally and plaintiff is entitled to relief of mandatory injunction as well as damages as claimed? OPP

Whether the plaintiff has not affixed the ad-valorem court fees on the amount claimed by him and plaintiff is liable to affix the same? OPD

Whether the plaintiff has no locus-standi to file the present suit? OPD

Whether the plaintiff has no cause of action to file the present suit? OPD

Whether the suit of the plaintiff is not maintainable? OPD

Whether the suit is liable to be dismissed for want of notice u/s 80 CPC? OPD

Relief.

After considering the evidence on record and hearing learned counsel for the parties, the suit of the plaintiff was dismissed. While dismissing the suit, it was held that the suit of the plaintiff was not maintainable.

Feeling aggrieved from the judgment and decree of the trial Court, the appellants, who are LRs, of Baljit Singh-plaintiff filed an appeal which was also dismissed. While dismissing the first appeal, it was held that the appellants had raised the construction without permission of the authorities and thus, they had no right to claim compensation on account of demolition of such unauthorized construction.

Still not satisfied, the appellants have filed the instant appeal. Counsel for the appellants has vehemently argued that the public authority cannot be escape its liability to provide adequate compensation to the parties who suffered on account of its mistake, negligency, illegality or error. Since in the case in hand, the appellants were in legal possession of the said house and the same was demolished illegally, they were entitled to the compensation and thus, the following substantial questions of law arise in this appeal:-

i) Whether the public authority can be held liable to provide adequate monetary compensation to the parties who suffered on account of its mistake, negligency, illegality or error?

ii) Whether in the suit of mandatory injunction for direction to public authority for compensation/damages, the learned courts have power to decide and issue direction to other person to deposit the ad-valorem court fee?

iii) Whether the appellant is entitled to deposit the ad-valorem court fee as and when the learned courts in the suit of mandatory injunction decided and directed to deposit the same for award of compensation in the interest of justice?

On the other hand, counsel for the respondents has supported the findings of the Courts below and has argued that the suit itself is liable to be dismissed as it is essentially a suit claiming damages and therefore, the suit for mandatory injunction would not lie and the appellants have infact filed a suit for recovery of damages under the garb of mandatory injunction to save ad valorem Court fee and therefore, suit is liable to be dismissed outrightly on this ground alone.

I have heard learned counsel for the parties and perused the impugned judgments and decrees of the Courts below.

Learned counsel for the appellants could not dispute before this Court that the instant case is essentially a case for recovery of damages as claimed. However, according to him, they have also claimed in the alternative a direction to the respondents to hand over the house after constructing the same and thus, in these circumstances, the suit for mandatory injunction is maintainable,

Without going into aforesaid controversy about maintainability of the suit in the instant case, at this stage, it may be noticed that after rejection of Appeal No. 237/2001 vide order dated 27.11.2001, liberty was granted to the appellants to file fresh appeal against the final order as the aforesaid appeal had been filed only against a show cause notice. Thereafter, appellants alongwith one Shiv Kumar, whose appeal was also rejected vide order dated 27.11.2001, filed Appeal No. 95 of 2002 before the Tribunal which was decided vide order dated 18.11.2002 in terms of order dated 11.01.2001 by the Tribunal in Appeal No. 73/2000 titled as Samay Singh vs. State of Haryana. However, the aforesaid facts are not forthcoming in the instant suit. Even the order of the Tribunal in Appeal No. 73 of 2000 titled as Samay Singh vs. State of Haryana is not available.

It could not be disputed before this Court that in the absence of any challenge to the aforesaid orders passed by the Tribunal, the instant claim of the appellants cannot succeed.

At this stage, it may further be noticed that many effected persons had approached the Hon''ble Supreme Court of India in the case of Rajinder Singh vs. State of Haryana and others (2005) 9 SCC, in this regard against the issuance of show cause notice of demolition and illegal demolitions. All these appeals were dismissed as the constructions put up by such persons were found unauthorized in terms of the Punjab Schedules Roads and Controlled Area (Restriction of Unregulated) Development Act, 1963.

At this stage, it may also be noticed in this appeal that admittedly the appellants have not proved that construction of their houses was after obtaining sanction of the aforesaid authorities under the Act.

In view of the aforesaid, no fault can be found with the findings of the Courts below.

No substantial question of law, as raised, arises in this appeal. This appeal having no merit is dismissed.