Civil Revision No. 2169 of 2008. ::-1-::
IN THE HIGH COURT FOR THE STATES OF PUNJAB
AND HARYANA AT CHANDIGARH.
C.R. No. 2169 of 2008. [O&M]
Date of Decision: 10th August, 2009.
State of Haryana Petitioner through
Mr. R.D.Sharma, DAG, Haryana
Versus
Girish Chander Sharma Respondent through
Mr. Divay Sarup, Advocate for
Mr. Sumeet Goel, Advocate.
CORAM:
HON’BLE MR. JUSTICE SURYA KANT.
1. Whether Reporters of local papers may be allowed to see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
SURYA KANT, J. [ORAL)
This Revision Petition is directed by the State of Haryana
against the order dated 9.04.2007 passed by the learned Additional
District Judge, Ambala whereby ad-interim restraint order against
demolition of the Retail Outlet, which is in the process of installation
by the respondent – plaintiff, has been granted, though the petitioner
– State has still been permitted to proceed against the respondent –
plaintiff as well as M/s Bharat Petroleum Corporation, in accordance
with law.
[2]. Notice of motion was issued and in response thereto,
learned counsel for the parties have been heard.
[3]. In order to appreciate as to whether the respondent –
plaintiff has been able to satisfy the golden principles to be satisfied
before granting ad-interim injunction, the original records have been
summoned and perused.
Civil Revision No. 2169 of 2008. ::-2-::
[4]. The record reveals that the respondent – plaintiff is a
retired Army Officer, to whom a Retail Outlet has been allotted by
M/s Bharat Petroleum Corporation Limited. The respondent is owner
of agricultural land measuring 5 kanals 10 marlas approximately
[2561 square meters] situated in village Saha, Hadbast No.93 on
Ambala-Jagadhri road which he purchased vide sale deed No. 351
dated 29.8.1995. The respondent – plaintiff applied to the District
Magistrate, Ambala to grant him ‘No Objection Certificate’ [NOC] for
installation of the Retail Outlet. Upon receipt of his application, the
District Magistrate-cum-Deputy Commissioner, Ambala invited
comments from [i] the Superintendent of Police, Ambala; [ii], Sub
Divisional Magistrate, Ambala; [iii] Fire Officer, Ambala Cantt.;[iv]
Block Development and Panchayat Officer, Ambala; [v] Executive
Engineer, National Highway, Panchkula;[vi] District Town Planner,
Ambala and [vii] Divisional Forest Officer, Ambala. After receipt of the
reports from these officers, the District Magistrate passed an order
on 9.6.2003 recommending the grant of NOC to the respondent –
plaintiff, a translated version of which reads as follows:-
“All the Officers have submitted their reports in this office
which are to the following effect:-
The Superintendent of Police has issued No Objection
Certificate in his report.
The Sub Divisional Officer [Civil] Ambala has stated in
his report that Girish Chander son of Shri Nihal Chand,
r/o Khozkipur is owner of total land measuring 5 kanals
10 marlas comprised in Rect. No. 93, Killa No.102/9/1,
102/40/26[0-7] and 109/2 [4-13] situated in the revenue
estate of village Saha.
The Fire Officer, Ambala Cantt. has issued NOC by
Civil Revision No. 2169 of 2008. ::-3-::
giving some suggestions.
BDPO, Saha has issued NOC in his report.
XEN [NH] Panchkula has stated in his report that this
office has no objection in installation of Petrol Pump on
this site.
District Town Planner, Ambala has reported that this is
not related to its office.
Deputy Conservator of Forests, Ambala the said
Company will have to apply in terms of Section 2 of the
Indian Forest Act, 1980. On receipt of approval from the
Government of India, the Company would be permitted to
make path.
You are, therefore, requested to grant permission for
issuance of No Objection Certificate to the applicant”.
[5]. Notwithstanding the above reproduced recommendations
by the District Magistrate-cum-Competent Authority, the District Town
Planner, Ambala slapped the petitioner with a show cause notice
calling upon him to remove the on-going construction of the Retail
Outlet, as the land had been allegedly notified and included in the
‘controlled area’. Pertinently, at the time when NOC was
recommended by the District Magistrate on 9.6.2003, the land was
not within the ‘controlled area’. The respondent – plaintiff appears to
have responded to the said notice which, according to him, was filed
by the authorities. However, the District Town Planner again issued a
show cause notice to the petitioner, compelling him to approach the
Civil Court.
[6]. It further appears that the District Town Planner moved an
application under Order 7 Rule 11 CPC for rejection of the plaint,
inter-alia, on the ground that the Civil Court’s jurisdiction is expressly
Civil Revision No. 2169 of 2008. ::-4-::
barred in the matter. While deciding that application, the trial Court,
unfortunately, without applying its mind, dismissed the application
under Order 39 Rules 1 and 2 read with Section 151 CPC also.
[7]. On an appeal, the Appellate Authority has set aside the
said order after observing as follows:-
“The facts of the present case are such that the District
Administrative Authorities were acting in a most casual
manner and the appellant is being condemned for no
fault. With all due respects to the findings of the learned
trial Court, this Court is to lay down that the trial Court
has not exercised discretion vested in it properly and in
accordance with the principles governing the grant or
refusal of the injunction. The perusal of record also
reveals that trial Court heard arguments on application
under Order 7 Rule 11 CPC only and no indication is
there if the arguments were heard on application under
Order 39 Rules 1 and 2 CPC before disposing of the
same.
10. As a sequel to the above said discussion the
impugned order is set aside by accepting the appeal with
costs. The respondents NO. 1 and 2 are restrained from
interfering in the working of the appellant in any manner
whatsoever. At the same time this Court would like to add
that the culpability of the erring officials must be fixed so
that they must understand that the cases are not to be
deal with in casual manner. It is ordered that a copy of
this order be sent to the Chief Secretary to Government
of Haryana, Chandigarh for initiating proceedings against
the erring officials. The Government will, however, be
competent to proceed against respondent No. 3 or the
appellant in accordance with law but before taking any
action in the matter the losses will be got evaluated in
terms of money from a approved valuer and demolition
Civil Revision No. 2169 of 2008. ::-5-::
will not take place till the loss is compensated by the
Government”.
[8]. In my considered view, the issue as to whether the Civil
Court, in such like cases, would have jurisdiction or not is a mixed
question of law and fact which can be decided only at an appropriate
stage. Suffice it to say that since the District Magistrate being the
Competent Authority to recommend NOC, had already passed an
order on 9.6.2003 and at that time the area was not a part of the
‘controlled area’, the respondent – plaintiff has made out a prima
facie case. Since the Retail Outlet has been allotted to him and the
delay in installation could entail cancellation, the balance of
convenience also lies in his favour. Similarly, the demolition drive, if
allowed to be carried out, is bound to cause irreparable loss and
injury to the plaintiff. All the ingredients having been satisfied, no
error of jurisdiction has been committed by the Appellate Court while
granting the ad-interim injunction. However, the recommendations
made by the appellate Authority to the Chief Secretary to take
disciplinary action against the District Town Planner and/or other
officials are set aside as such an action at this stage, may unwittingly
prejudice the merits of the case.
[9]. Disposed of. Dasti. August 10, 2009. ( SURYA KANT ) dinesh JUDGE