- (1.) The appellants-defendants are in Regular Second Appeal against the concurrent findings of fact, whereby suit seeking declaration and permanent injunction filed by the respondents-plaintiffs, has been decreed on the premise that notices under Section 17(3) could not be served, whereas notice under Section 55 of the HUDA Act 1977 should have been served. Mr. Som Nath Saini, learned counsel appearing on behalf of the appellants has drawn the attention of this Court to Clauses 11 & 14 of the Allotment letter, which reads thus:- "11. In the event of breach of any other condition of transfer the Estate Officer may resume the land in accordance with the provisions of Section 17 of the Act. 14. The plot/building shall not be used for any purpose other than that for which it has been allotted in accordance with the plans approved by the competent authority. No obnoxious trade shall be carried out in or any land/building."
(2.) He further submits that notice contained two violations, one with regard to elevation of the plot and another one change of user of the plot and trading of LML Scooter on the said plot which is an industrial plot. In the plaint, the plaintiff admitted that they have been using the building/plot for trading of the LML Scooter and as well as Service centre. The service centre would fall within the purview of Clauses 11 and 14 of the terms and conditions of the Allotment Letter and, therefore, notice under Section 17(3) was served upon. The trial Court and the lower Appellate Court has erroneously held that notice under Section 55 of the 1977 Act was required to be served as the provision of Section 17(3) deals with the non-payment of the installments towards price of plot. Mr. Som Nath Saini, Advocate during the course of hearing of arguments has drawn the attention of this Court to the provision of Section 17 Sub Section 3 of 1977 Act and submits that aforementioned provision would apply, as the HUDA has power to issue notice to allottee whenever there commits breach of any condition of sale and, therefore, notice, challenged in the suit was rightly served.
(3.) Even the trial Court did not have jurisdiction to try the suit & remedy if any is to challenge the order passed under the Act i.e. before appropriate authority. In support of the contention, he has relied upon judgment of this Court rendered in RSA No.2934 of 2007, HUDA & another Vs. Shishu Pal and ors., thus prays substantial question of law arises for determination. Mr. V.K. Jindal, learned counsel appearing on behalf of respondents-plaintiffs submits that notice under Section 17(3) did not contain the alleged violation of running of the service centre. Since, it is industrial plot, the trading of the Scooter being industrial activity is permissible. Both the Courts below have concurrently held that HUDA was required to comply with the provision of Section 55 of 1977 Act. I have heard learned counsel for the parties and appraised the paper book.;