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PETITIONER: FARIDABAD COMPLEX ADMINISTRATION

       Vs.

RESPONDENT: YADU ETC.

DATE OF JUDGMENT:       11/12/1996

BENCH: K. RAMASWAMY, G.T. NANAVATI

ACT:

HEADNOTE:

JUDGMENT:                             WITH               CIVIL APPEAL NO.895-900 OF 1986                          O R D E R      These appeals  by special leave aries from the judgment of the  Punjab &  Haryana High  Court, made on July 17, 1985 and September 11, 1985 dismissing the appeals in limine.      The  undisputed  factes  are  that  one  Biharilal  and Mahipal  attempted   to  construct  shops  on  the  lands  n 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 Section  208 of  the Haryana Municipalities Act, 1976 (for short, the ’Act’) requires notice to be given within  six   months   from   the   date   of   unauthorised construction. since,  admittedly, the  notice was  issued to Biharilal on  March 18,  1982  and  construction  were  made sometime in  February 1981,  it was  beyond  the  period  of limitation. that plea found fovour with the courts below and accordingly the  trial Court  as well as the appellate Court decreed the  suit and  affirmed the  same.  The  High  Court dismissed the  second appeals in limine. Thus, there appeals by special leave.      It is  not disputed that the appellant is the successor in interest by operation of Faridabad Complex Administration (Regulation &  Development) Act,  1972 (Act  4 of  1972) and succeeded to  the property  held by Balladgarh Municipality. Section 61  (1) (f)  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  specifically  and  situated  within  the Municipality shall  vest in  and be under the control of the Committee and  that all  other properties which have already 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  "(f)   all  lands...  or  other  properties transferred to  the Committee  by the  State  Government  or acquired by  the Government  by purchase  of  otherwise  for public purpose".  It would  be seen  that all  properties as enumerated in sub-section (1) of Section 61 are possessed by

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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  that notice  was given  to  Biharilal  to  the effect that  he was in "unauthorised occupation of the land" and he  was construting 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, 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 emerges: whether  they had  the right  to and title over the land in  question and whether notice could be issued against the appellant?  Unfortunately,  the  court  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:      "therefore,  it   is  amply   clear      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."      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  under  Section  208  is relateble 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 construction  in   accordance  with   law  after   obtaining permission for  construction according  to  building  rules. Therefore, the  limitation  would  arise  only  when  it  is asserted that  they ate  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 findings of the courts  below is clearly erroneous. There is no error in issuing notice  for removal of the unauthorised construction on the  land of the appellant. Therefore, the decree granted by the  Courts below  are clearly  unsustainable.  The  High 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.