FARIDABAD COMPLEX ADMINISTRATIONversusYADU ETC.

A               FARIDABAD COMPLEX ADMINISTRATION
                                                                                    ~I
                                          v.
                                   YADUETC.

                              DECEMBER 11, 1996

B               [K. RAMASWAMY AND G.T. NANAVATI, JJ.]

          Haryana Municipalities Act, 1973 : Section 208.

          Faridabad Complex Administration (Regulation and Development)
C Act, 1972: Section 15 and (ii( l)(f).

         Unauthorised co11strnction-Notice for demolition-Limitation period
  foi-<:ondition for issue of notice-Construction of shops by B and
  M-Notice issued to them for unauthorised constrnction-1hereafter they sold
D the land to respondents-Suit instituted by respondents for injunction restrain-
  ing the appellant-Administration from demolishing the construc-
  tiot>--<Jround that notices issued to B and M were beyond the period of
  limitatioTt--Suit decreed by Trial Court and a/finned by First Appellant
  Court-Second appeal dismissed by High Court-Appeal before Suprenie
  Court-Held the appellant succeeded to the property held by Ba/labgarh
E Municipality-The notice issued under section 208 is .relatable Ito un-
  authorised construction on the premise that the person proceeding with the
  construction is the owner of the property-The respondents had purchased the
  lands from B and it is not their case that B had title independent of the
  Municipality-Jn these circumstances, the limitation of Section 208 would not
F arise-The decree granted by the Courts below held unsustainable-No in-
  junction could be issued against the true owner i.e. appellant.

          CIVIL APPELLATE JURISDICTION : Civil Appeal No. 894 of
    1986 etc.
G
         From the Judgment and Order dated 27.5.87 of the Punjab &
    Haryana High Court in R.S.A. No. 3339 of 1986.

          D.V. Sehgal and Prem Malhotra for the Appellant.

H         Rajiv K. Garg and N.D. Garg for the Respondents.
                                     978
                       FARIDABADCOMPLEXADMN. v. YADU                            979

             The following Order of the Court wa~ pelivered :                          A

             Theses appeals by special leave arise from the judgments of the
       Punjab & Haryana High Court, made on July 17, 1985 and September 11,
       1985 dismissing the appeals in limine ./

             The undisputed facts .are that one Biharilal and Mahipal attempted        B
       to construct shops on the lands in question. Notices were issued to them
       for unauthorised construction. Thereafter, admittedly, they sold the lands
       to the respondents who filed suits for injunction restraining the appellant
       from demolishing the construction made by them on the premises that
       Section 208 of the Haryana Municipalities Act, 1973 (for short, the 'Act')      C
       requires notice to be given within six months from the date of unauthorised
       construction. Since, admittedly, the notice was issued tcr Biharilal on March
       18, 1982 and constructions were made sometime in February 1981, it was
       beyond the period of limitation. That plea found favour with the courts
       below and accordingly the Trial Court as well as the appellate Court            D
       decreed the suit and affirmed the same. The High Court dismissed the
       second appeals in limine. Thus, \)iese appeals by special leave.

             It is not disputed that the appellant is the successor in interest by
       operation of Faridabad Complex Administration (Regulation & Develop-            E
       ment) Act, 1972 (Act 4 of 1972) and succeeded to the property held by
       Ballabgarh Municipality. Section 61(1)(1) of the Act provides that subject
       to any special reservation made or special conditions imposed by the State
       Government all properties of the nature mentioned in that Section specifi-
       cally and situated within the Mnnicipality shall vest in and be under the
       control of the Committee and that all other properties which have already       F
       vested shall thereafter vest in the Committee and shall be held and applied
       by the Committee for the purpose of Act, i.e., to say "(I) all lands..... or
       other properties transferred to the Committee by the State Government or
       acquired by the Government by purchase or otherwise for public purpose".
       It would be seen that all properties as enumerated in sub-section (1) of        G
       Section 61 are possessed by the Ballabgarh Municipality. The appellant
· -.   being the successor-in-interest,' they stood transferred to and vested in the
       appellant by virtue of Section 15 of the Act.

             In the written statement filed by the appellant, it was averred that
       notice was given to Biharilal to the effect that he was in "unauthorised H
    980                   SUPREME COURT REPORTS [1996] SUPP. 9S.C.R.

A occupation of the land" and he was constructing unauthorisedly. He had
    given a reply thereto stating that he had already transferred the land.
    D.W.4, Krishan Lal had stated in his evidence that notice was issued to
    Biharilal earlier for unauthorised construction and reply thereto was
                                                                                     ....
    received from him stating that he had already transferred the land. Thus,        •
B   it could be seen that the appellant had asserted the title over the land and
    the unauthorised construction carried thereon was asserted and notice on
  that premise was given to Biharilal. Admittedly, the respondents have
  purchased the properties from Biharilal and others. Thus, they being the
  successors-in-interest in title from Biharilal and others, the question emer-
  ges: whether they had the right to and title over the land in question and
C whether notice could be issued against the appellant? Unfortunately, the
  courts below have not adverted these aspects and they have proceeded on
  the basis that notice for unauthorised construction was given under Section
  208 of the Act. The Trial Court found thus:

D           "Therefore, it is amply clear that notice dated 18.3:1982 served
            upon Bihari Lal. related to land other than the one involved in the
            previous litigation. Even if it is held that notice dated 18.3.1982
            served upon Biharilal related to the site in dispute then also the
            same cannot be binding upon the plaintiff."

E
           It is obviously incorrect finding recorded by the Trial Court since,
    admittedly, the respondents had purchased the lands from Biharilal and it
    is not their case that Biharilal had title independent of the Municipality. In
    these circumstances, the question arises : whether the notice issued by the
    appellant is vitiated by any error of law? It is seen that the notice issued
F   under Section 208 is relatable to unauthorised construction on the premise
    that the person proceeding with the construction is the owner of the
    property. In this background, it is not their case that they are the owners
    and were proceeding with the constructions in accordance with law after
    obtaining permission for construction according to building rules. There-
G   fore, the limitation would arise only when it is asserted that they are the
    owners of the property and they were proceeding with the constructions in
    violation of the Municipal Rules. In these circumstances, the limitation of
    Section 208 would not arise. In this case, the finding of the courts below is
    clearly erroneous. There is no error in issuing notice for removal of the
H   unauthorised construction on the land of the appellant. Therefore, the
                     FARIDABADCOMPLEXADMN. v. YADU                       981
•   decree granted by the Courts below are clearly unsustainable. The High A
    Court has not adverted to and applied its mind to consider this aspect of
    the matter. No injunction could be issued against the true owner, i.e.,
    appellant.

             Thus, the appeals are allowed and the suits stand dismissed. No
    costs.                                                                     B

    T.N.A.                                                  Appeals allowed.




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