Himachal Pradesh Housing and Urban Development Authority vs Kulbhushan Soin

Kuldip Singh, Judge

The plaintiff has come in appeal against judgment, decree dated 6.1.2001 passed by learned Additional District Judge (I), Kangra at Dharamshala in Civil Appeal No. 84-D/99 reversing judgment, decree dated 14.10.1999 passed by learned Sub Judge 1st Class (I), Dharamshala in Civil Suit No. 72 of 1993 and Counter Claim No. 177/99. The facts in brief are that appellant had filed a suit for mandatory injunction directing the respondent to demolish the unauthorized construction in the ground floor and first floor as per site plan in plot No. MIG 82 Social Housing Board Colony, Dharamshala.

The case of the appellant is that respondent was allotted plot MIG 82 and Hire Purchase Tenancy Agreement (for short ''Tenancy Agreement'') was executed. The possession of the plot was handed over to the respondent. The plan of the respondent was approved on 15.6.1979, the conveyance deed was executed on 7.9.1987. It came to the notice of the appellant that respondent had carried out unauthorized construction on the plot in contravention of the approved plan and in violation of the Tenancy Agreement and conveyance deed. The respondent was asked to remove the unauthorized construction but without any result.

The respondent contested the suit by filing written statement, he also filed counter-claim and it was pleaded that the Tenancy Agreement dated 15.12.1978 is null and void, the respondent is entitled for recovery of Rs. 4545/- from the appellant on account of excess amount received. The plot of 250 sq. mtrs. at the rate of Rs. 40/- per sq. mtr. was to be given to the respondent but respondent came to know that the area of his plot was reduced to 198.98 sq. mtrs. The less area of the plot was not made good to the respondent, therefore, respondent is entitled to recover Rs. 4545/- from the appellant.

The appellant has no authority to approve the plan of the house in terms of the allotment letter. The Board cannot demolish the construction raised on the spot in accordance with rules and regulations of the Board. The construction was raised in the year 1979. The claim of the appellant has become time barred. There was no agreement to get the plan approved from the Board. The construction was completed in the year 1982. The appellant is not entitled to any injunction.

The respondent prayed a decree of declaration against the appellant that respondent has right to construct the stairs from the first floor to the second floor of the house and also to raise the projections of the house equal to the house of S.K. Dutt, House No. 81. It has also been prayed that appellant may be restrained from interfering in the aforesaid construction and respondent is entitled to refund of Rs. 4545/- excess amount received by the appellant.

The appellant filed replication to the written statement and written statement to the counter claim of the respondent. The appellant reiterated its case and submitted that respondent has taken possession of 198.97 sq. mtrs. and he has executed the Tenancy Agreement. The respondent filed replication to the written statement in counter claim and re-affirmed the stand taken in the counter claim.

The trial Court on 5.4.1994 has framed the following issues:

Whether the defendant has raised unauthorized construction, as alleged? :-OPP

Whether the plaintiff is entitled for mandatory injunction by demolition? :-OPP

Whether the tenancy agreement dated 15.12.78 is null and void, as alleged ?:- OPD

Whether the defendant is entitled for the refund of Rs. 4545/- from the plaintiff as alleged?:- OPD

Whether the defendant is entitled for the relief of injunction, as prayed for?:- OPD

Whether the counter claim is barred by limitation?:- OPD

Whether the defendant is estopped as alleged?:- OPP

Whether the defendant is estopped by his acquiesces?:- OPD

Whether the counter claim is not properly valued for the purposes of court fee and jurisdiction?:- OPP

Whether the suit is not properly valued for the purposes of court fee and jurisdiction?:- OPD

Relief

The trial Court on 10.11.1994 has framed the additional issues:

Whether the Executive Engineer is competent to file the present suit?:- OPP

Whether the original site plan submitted by the defendant in the office of the plaintiff was changed without the knowledge and consent of the defendant?:- OPD

Whether the plaintiff had promised to allot a plot of 250 sq. mtrs. in its original offer, as alleged?:- OPD

Whether the plaintiff has changed the price of plot from 10,800/- to 8596 without codal formalities as per existing rules and it is disadvantages to the defendant, as alleged, if so its effect?:- OPD

The issues framed on 5.4.1994 i.e. issues No. 1, 2, 6 and 9 were answered in affirmative and issues No. 3, 4, 5 and 10 in negative and issue No. 7 was not pressed. The issues framed on 10.11.1994 i.e. issue No. 1 was answered in affirmative and issues No. 2 to 4 in negative and the learned trial Court decreed the suit and dismissed the counter claim on 14.10.1999. The appellant in the suit of respondent filed Civil Appeal No. 84-D/99 and in his counter claim filed Civil Appeal No. 85-D/99 against common judgment and decree dated 14.10.1999. The learned Additional District Judge by common judgment, decree dated 6.1.2001 set-aside the judgment, decree dated 14.10.1999 of the trial Court, the counter claim of the respondent was also dismissed. Hence, second appeal, which has been admitted on following substantial questions of law:

Whether the allottee could validly violate the conditions of the agreement and the contract entered inter se him and the other party in contravention to the provisions of section 10 and section 37 of the Indian Contract Act, 1872?

Whether the present suit would be governed by the provisions of Article 113 of the Limitation Act or otherwise and if so, whether the findings of the learned first appellate Court to the contrary are proper?

Whether in a case for mandatory injunction directing demolition of illegal construction, in case the principle of acquiescence is applied, is the plaintiff entitled to decree for compensation in the alternative?

I have heard the learned counsel for the parties and have also gone through the record. The learned counsel for the appellant has submitted that the learned Additional District Judge has erred in dismissing the suit of the appellant after reversing the well reasoned judgment of the trial Court. The respondent is bound by the terms and conditions of the Tenancy Agreement. The appellant is entitled to decree of mandatory injunction in alternative for compensation. The learned counsel for the respondent has supported the impugned judgment, decree.

The substantial questions of law No. 1 to 3 are interconnected, therefore, substantial questions of law No. 1 to 3 are taken up collectively for determination. Ex.PW-1/B dated 6.9.1978 is the allotment letter of MIG plot No. 82 in favour of respondent on Higher Purchase basis. The condition No. 7 of the allotment letter provides that possession of the plot will be given after the execution of Tenancy Agreement, the condition No. 8 thereof provides that conveyance deed will be executed after the entire amount due is paid by the allottee. The condition No. 9 is to the effect that allottee shall not make any alteration in the plot without the previous approval of the Board. The condition No. 11 is to the effect that allottee will have to complete the house building on the plot within a period of 3 years from the date of issue of the letter.

The Tenancy Agreement Ex.PW-1/C between the appellant and respondent was executed on 13.12.1978. The condition No. 2 of this agreement provides that hirer shall hold the property as a tenant for the Hire Purchase period which is fixed term of 4 1/2 years commencing from the first day of the month i.e. 1.10.1978 and ending on the last day i.e. 31.3.1983. The condition No. 2 (g) provides that hirer shall not make or permit to be made by alterations or additions to the said property without prior permission in writing of the owner and also the sanction or permission in writing of the local authority concerned. The condition No. 14 of Schedule -III of Tenancy Agreement further provides nonobservance of any stipulations shall be a breach of the terms of the agreement and the Board shall take action for such breach against the hirer in accordance with the powers vested in it under the Act, Rules and Regulations made thereunder and the agreements executed under them. Ex.PW-1/D is the deed of conveyance dated 7.9.1987 of plot No. 82 between appellant and respondent.

The suit has been filed by the appellant for mandatory injunction for removal of alleged unauthorized construction by the respondent. It is the stand of the respondent that construction was completed by him in the year 1982. PW-1 S.K. Sharma, Executive Engineer, H.P. Housing Board has appeared under GPA on behalf of the appellant. He has stated that plot No. 82 MIG was allotted to respondent in September, 1978. On 13.12.1978 Hire Purchase Tenancy Agreement was executed. The possession was given after the agreement. The plan was approved by Head Office on 15.6.1979. The conveyance deed between the parties was executed on 7.9.1987. The respondent had not raised the construction as per the approved plan. The Estate Manager had given notice on 10.12.1990 of unauthorized construction which is Ex.PW-1/F. The notice Ex.PW-1/G by the Advocate of the Board was given on 18.7.1991. PW-1 in his statement has not stated when the construction was started and completed by the respondent. On the contrary, in the cross-examination, he has stated that he does not know that respondent had completed the construction in the year 1982.

PW-2 Jagat Ram, Assistant Engineer, H.P. Housing Board Division, Dharamshala has stated that he remained posted as Assistant Engineer at Dharamshala from May, 1990 to June, 1996. He has stated that the construction was not raised during his tenure but it was done before that.

DW-2 Kulbhushan has stated that he completed the construction in the year 1982 and thereafter he had not raised any construction. In notice Ex.PW-1/F dated 10.12.1990 issued by the Estate Manager of the appellant to respondent, it has been stated that allottee had failed to carry out the construction as per the approved plan and allottee had violated the condition No. 9 of the allotment letter and conditions of conveyance deed. In Ex.PW-1/F it has not been stated when the respondent commenced the construction and when completed the construction. In notice Ex.PW-1/G dated 18.7.1991 also it has not been stated when respondent carried out unauthorized construction to the extent of 31.01 sq. mtrs. on the ground floor and 15.08 sq. mtrs. on the first floor.

The suit was filed on 22.8.1992. It was too late for the appellant to question such construction in the year 1982. The respondent became absolute owner of the plot after the execution of the conveyance deed Ex.PW-1/D on 7.9.1987. There is a stipulation in the conveyance deed that plan of the building to be constructed on the plot shall be approved by the Himachal Pradesh Housing Board strictly as per zoning plan of the colony/sector. The conveyance deed also provides that allottee is required to construct the house within 3 years from the date of allotment of plot after getting the plan approved from the Board unless written permission for extension of this period has been obtained from the Board.

The conveyance deed was executed on 7.9.1987, stipulation in the conveyance deed that plan of the building to be constructed on plot shall be approved by H.P. Housing Board strictly as per zoning plan of the colony/sector would apply if the construction was to be raised by the purchaser after the conveyance deed. In the present case it has not been proved by the appellant that construction has been raised on the plot by the respondent after 7.9.1987.

The appellant has failed to prove when alleged construction was carried out by the respondent. There is nothing on record to disbelieve the assertion of the respondent that he completed the construction on the plot in the year 1982. Once the construction was completed by the respondent in the year 1982, it was too late for the appellant to question such construction in the year 1992. The contentions that appellant in alternative is entitled to compensation has also no force. There is no foundation in the plaint for compensation. The construction raised by the appellant over the plot is not hit by the stipulations in the conveyance deed. There is no merit in the appeal. The substantial questions of law No. 1 to 3 are decided against the appellant. In view of above, the appeal fails and is accordingly dismissed with no order as to costs.