Estate Officer, Haryana Urban Development Authority, Faridabad v. Parveen Kumar Arora & Anr.

CORAM: HON'BLE MR. JUSTICE RAJESH BINDAL Present: Ms. Preeti Khanna, Advocate for the petitioner. Rajesh Bindal J. The defendant is before this Court aggrieved against the order passed by the learned court below, whereby in proceedings under Order 39 Rules 1 and 2 CPC during the pendency of the suit, the petitioner has been restrained from resuming the plot subject to the condition of deposit of Rs. 79,145/- due on account of extension fee by the plaintiff-respondent No. 1. Briefly, the facts are that respondent No. 1 filed a suit for permanent injunction against the action of the petitioner to resume the plot, which was allotted to respondent No. 1 way back on 15.7.1983 on the ground that construction thereon had not been raised within the stipulated period and the extension fee also had not been deposited. The trial court dismissed the application filed by respondent No. 1 for interim injunction, whereas the learned lower appellate court, finding prima facie case, reversed the order of the trial court and restrained the petitioner from resuming the plot in question.

Learned counsel for the petitioner submitted that the plot was allotted to respondent No. 1 way back in the year 1983. Possession thereof was offered to him in the year 1992, which respondent No. 1 failed to take. He took actual physical possession in the year 1997. As per terms of the allotment letter, construction was to be raised within 2 years from the date of offer of possession, otherwise extension fee was payable. Respondent No. 1 neither paid the extension fee nor got the building plan sanctioned to raise construction on the plot. Even otherwise, the civil court did not have the jurisdiction to entertain the suit, as there is specific bar under the Haryana Urban Development Authority Act, 1977. As CR No. 2702 of 2009 [2] respondent No. 1 did not have prima facie case, there was no question of grant of stay. Reliance was placed upon East India Cotton Mfg. Co. Limited v. Haryana Urban Development Authority Faridabad, 2003(3) PLR 842; N.D.M.C. v.

Satish Chand (Decesed) by Lr Ram Chand, 2004(1) PLR 257 and The Gram Panchayat of Falel Majra, Ambala through its Sarpanch v. Society for Creation of Heaven on Earth, Africa Avenue, New Delhi and others, 2004(4) RCR (Civil) 279. After hearing learned counsel for the petitioner, I do not find any merit in the submissions made. In the present case if the petitioner is not restrained from resuming the plot in question during the pendency of the suit, the suit itself will become infructuous. A perusal of the impugned order shows that the dispute in the present case is as to whether possession was offered to respondent No. 1- plaintiff in the year 1992 or in the year 1997, which is yet to be gone into on the basis of evidence to be led by the parties. The question of extension fee and the maximum permissible period for raising the construction would also dependent on that. It is a matter of record that some amount has been paid by respondent No.

1- plaintiff on account of extension fee. There is dispute about service of notice/demand, which was allegedly made by the petitioner on that account, as respondent No. 1-plaintiff had denied receipt of notice. The learned court below, considering prima facie merit in the submissions made by respondent No. 1- plaintiff, while granting stay of resumption of plot, had directed deposit of the balance extension fee, on payment of which an allottee, as per rules, is permitted more time to raise construction. As far as issue of jurisdiction is concerned, the same is a mixed question of law and fact which is yet to be gone into by the court. These are not the proceedings on an application filed by the petitioner-defendant under Order 7 Rule 11 CPC. As far as judgments, cited by learned counsel for the petitioner are concerned, in N.D.M.C.'s case (supra), the issue was regarding availing of statutory remedy of appeal against the order of assessment levying tax under the Punjab Municipal Act, 1911.

In East India Cotton Mfg. Co. Limited's case (supra), the issue was regarding jurisdiction of this Court in Regular Second Appeal after the same had been dealt with in the final judgment and decree by the courts below. In The Gram Panchayat of Falel Majra's case (supra), the plaintiff therein was found to be in unauthorised possession of the property. Secondly, this Court, in the aforesaid case, had opined that it is only where the authority or the Tribunal concerned acted not in conformity with the fundamental principles of judicial procedure, the civil court have the jurisdiction to adjudicate notwithstanding the CR No. 2702 of 2009 [3] statutory bar. In the present case, this fact is yet to be found on the basis of evidence to be recorded by the court. For the reasons mentioned above, I do not find any merit in the present petition. Accordingly, the same is dismissed.

12.5.2009 (Rajesh Bindal) Judge