- (1.) Defendant/appellant-Municipal Corporation, Faridabad has filed the present second appeal against the judgments and decrees passed by the courts below whereby the suit for declaration with consequential relief of permanent injunction filed by the plaintiff/respondent was decreed by the trial court and the appeal filed by the defendant/respondent was dismissed by the learned appellate court.
(2.) As per case of the plaintiff/respondent in the year 1964 they had taken a part of the suit property on lease from M/s Leela Separators(lessees). Subsequently M/s Leela Separators surrendered their leasehold rights of their portion in favour of the plaintiff on 16.7.1968. It was further alleged that plaintiff company had carried out some repair activities in the premises and the defendant corporation wrongly and illegally called upon the plaintiff to pay composition fee for the same although there was no addition or alteration. The said composition fee was deposited by plaintiff vide receipt dated 9.6.1995. However on 23.9.1995 the Executive Engineer exercising the powers of the Director Town and Country Planning under Section 12(1) and 12 (3) of the Punjab Scheduled Roads and Controlled Areas (Restriction of Unregulated Development) Act,1963 on the allegations that plaintiff had constructed a boundary wall, called upon the plaintiff to show cause as to why the same should not be demolished. The said notice was ultimately challenged before the High Court where said show cause notice was withdrawn as the suit property fell within the Municipal limits. It was further alleged that again on 21.3.2000 defendant corporation issued a notice under Section 12 of the Scheduled Road Act which was replied by the plaintiff stating that Joint Commissioner was not a Director appointed under the Scheduled Roads Act and as such the notice was issued without jurisdiction. It was alleged that the matter remained in abeyance and thereafter another show cause notice dated 24.5.2001 was served upon the plaintiff which was replied on 13.6.2001. Thereafter another notice dated 17.8.2002 was received by the plaintiff which was replied on 23.8.2002. On 9.10.2002 plaintiff again received a letter alleging violation of the provisions of the Act and plaintiff was called upon to restore the building in its original position. Plaintiff submitted his reply dated 9.10.2002 but another notice dated 10.12.2002 was issued by the defendant. The said notices were challenged by the plaintiff on the ground that w.e.f. 15.1.1972, the entire area commencing from Badarpur Border to Jharsetly was consolidated into Faridabad Complex Administration; the plaintiff was in possession of the constructed portion which was raised in the year 1961-62 before the commencement of the Scheduled Roads Act and thus the said Act had no retrospective effect; that in the writ petition filed by the plaintiff similar view was taken by the High Court that the plaintiff had not changed the land use under Scheduled Roads Act and thus notice was bad. It was further alleged that the defendant had not passed any speaking order on the reply filed by the plaintiff that the changes made were minor which were compounded by the defendant and thus there was no violation of provisions of Sections 347 and 348 of the Haryana Municipal Corporation Act.
(3.) Despite notice of the suit, defendants failed to filed written statement and their defence was struck off.;