Punjab-Haryana High Court
Exotica Condominium Owners ... vs R.S Business Solutions Pvt. Ltd And Anr on 20 April, 2024
Author: Anil Kshetarpal
Bench: Anil Kshetarpal
Neutral Citation No:=2024:PHHC:054045
CR-4668-2019 & 2024:PHHC:054045
CR-1308-2021 -1-
115 IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
1. CR-4668-2019
Date of decision: 20.04.2024
EXOTICA CONDOMINIUM OWNERS ASSOCIATION
...Petitioner
Versus
R.S. BUSINESS SOLUTIONS PVT. LTD AND ANR
....Respondents
2. CR-1308-2021
THE DISTRICT TOWN PLANNER (ENFORCEMENT),
GURUGRAM
...Petitioner
Versus
M/S R.S. BUSINESS PVT. LTD AND ANR
....Respondents
CORAM: HON'BLE MR. JUSTICE ANIL KSHETARPAL
Present: Mr. Roopnash Purohit, Advocate with
Mr. Karanvir Hooda, Advocate
for the petitioner (through Video conferencing).
Mr. Akshay Bhan, Sr. Advocate with
Mr. Santosh Sharma, Advocate
Mr. Gurmandeep S. Sullar, Advocate and
Ms. Devika Anand Sullar, Advocate
for respondent No.1.
Mr. Baldev Raj Mahajan, Sr. Advocate with
Mr. Vishal Garg, Advocate
for respondent No. 3-M.C., Gurugram and
for the petitioner in CR-1308-2021.
Mr. J.S. Pannu, AAG, Haryana.
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Neutral Citation No:=2024:PHHC:054045
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CR-1308-2021 -2-
ANIL KSHETARPAL, J (Oral):
1. Introduction & issue involved in the case:-
1.1 With the consent of the learned counsel representing the
parties, two connected Civil Revision Petitions assailing a common order
passed by the First Appellate Court while permitting a car showroom to be
run in a group housing area (Residential) shall stand disposed of.
1.2. In these two cases, the basic issue which arises for
consideration is "whether the Court by an interlocutory order should permit
running of a car showroom in the well planned residential area for group
housing society ?"
2. Brief facts of the case:-
2.1. The State of Haryana granted a licence to a residential group
housing society to construct residential towers in the year 1996-97. In the
aforesaid society, certain area was reserved for construction of convenience
small shopping outlets for the day to day requirement of the residents. The
respondent (plaintiff before the trial Court) purchased three commercial
spaces, which were amalgamated and converted into an automobile
showroom namely "Swede Auto". The Residential Welfare Association
namely Exotica Condominium Owner's Association filed the complaint
against running of such Automobile Showroom The Officials from
Director Town and Country Planning (hereinafter referred to as "DTCP")
inspected the site. It was found that a car showroom has been opened by
amalgamating three shops and encroaching upon area designed as green.
Furthermore, a boundary wall has also been constructed to restrict the
approach of the residents. A show cause notice was issued on 08.03.2016,
to the plaintiff by the DTCP. The Residential Welfare Association filed a
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writ petition numbered as CWP-11507-2016, which was disposed of on
02.06.2016, directing State of Haryana and its officials to dispose of the
show cause notice within the specified period. Ultimately, an order was
passed by the Competent Authority on 10.12.2016, directing that the
boundary wall be demolished and thoroughfare for Group Housing Society
be restored. Thereafter, the plaintiff filed the first suit in the year 2017, in
which it was asserted that the cause of action has accrued to the plaintiff as
the officials of DTCP have started hindering its operation. In the aforesaid
suit, the plaintiff sought decree for permanent injunction restraining the
officials of the State Government from interfering in the operations of the
plaintiff. In the aforesaid suit, no interim relief was granted to the plaintiff.
2.2 Residential Welfare Association also filed the another writ
petition i.e. CWP-5839-2017, which is stated to be pending. In the
meantime, the State Government and its officials have been issuing
repeated notices to the plaintiff to stop its operation in the area which is
reserved only for convenience shopping of the residents and not for
opening car showrooms, however the respondents continued. Ultimately,
on 20.02.2019, the premises was sealed by the authorities. The plaintiff
filed the second suit for the grant of decree of declaration with a
consequential relief of mandatory injunction. The trial Court dismissed the
application for grant of temporary injunction, however, the First Appellate
Court has issued mandatory injunction directing removal of seals and
permitting the plaintiff to continue to run automobile showroom.
2.3 The correctness of the First Appellate Court's order is
challenged before this Court.
3. Arguments adduced by the parties:-
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3.1 This Bench has heard the learned counsel representing the
parties at length and with their able assistance perused the paperbook and
relevant provisions of the Haryana Development and Regulation of Urban
Areas Act 1975(hereinafter referred to as the "1975 Act"), Punjab,
Scheduled Roads and Controlled Areas Restriction of Unregulated
Developments Act 1963 (hereinafter referred to as the "1963 Act"), and
Haryana Municipal Corporation Act, 1994.
3.2 Learned counsel representing the Residential Welfare
Association while referring to the various notices issued by State of
Haryana submits that automobile showroom is not permitted in the area in
question. He submits that in fact, the plaintiff is indulging in forum
shopping as the previous suit as well as second suit is pre-dominently on
the same cause of action.
3.3 Learned Senior Advocate representing respondent No.1 while
appearing in CR-1308-2021, submits that the plaintiff is estopped from
challenging jurisdiction of the DTCP because there is a specific stipulation
in the conveyance deed executed in favour of plaintiff to the effect that the
provisions of 1975 Act would govern the field. He further submits that the
jurisdiction of 1975 Act, is applicable to all urban areas in State of Haryana
including the areas falling within the municipal limits. Hence, the
judgment passed by the Division Bench in "Rajat Kuchhal and others
Vs. State of Haryana and others 2012(11) R.C.R(Civil) 297" is not
applicable because in that case, the jurisdiction of the authority to issue
notices with respect to the permission which were located within the
municipal area in relation to 1963 Act, was involved which is not
applicable in the present case.
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3.4 Learned counsel representing the plaintiff while heavily
relying upon the Rajat Kuchhal's case (supra) submits that DTCP and
have jurisdiction to issue notice with respect to area falling within the
municipal limits.
4. Analysis and Discussion:-
4.1 This Court has carefully read the judgment passed in Rajat
Kuchhal's case (supra). In that case the petitioners were served notice
under Section 12(2) of 1963 Act. In Para-5 of the judgement, the Division
Bench noted the point in issue to the effect that whether the authorities
under the 1963 Act, are competent to initiate any proceedings against
violation of conditions of licence with respect to premises which is located
within the municipal limits. In this case, the notices have not been issued
and the orders have not been passed under the 1963 Act. In fact the First
Appellate Court has overlooked this material aspect while passing the
impugned order. Before relying upon a judgment, it is the duty of the Court
to carefully study the judgment and apply it after understanding the context
in which the point in issue has been decided. The notice which was subject
matter of challenge was issued under Section 10 of the 1963 Act, and not
under the Section 1(2) and Section 2(O) of the 1975 Act. Hence, the
judgment in case of 'Rajat Kuchhal' is not applicable.
4.2 Section 1(2) Section 2(O) of 1975, Act, are extracted as
under :-
"Section 1(2):-
It shall apply to all urban areas in the State of Haryana.
Section 2(O):-
"Urban area" means any area of land within
the limits of a municipal area or notified area of the
Faridabad Complex or situate within five kilometres of
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the limits thereof, or any other area where, in the
opinion of the Government, there is a potential for
building activities and the Government by means of a
notification declares."
4.3 It is evident that the Act shall apply to all urban areas in State
of Haryana including the area which falls within the municipal limits.
4.4 Moreover, the First Appellate Court has failed to apply three
well known tests for grant of injunction namely:-
(i) Prima facie case
(ii) Balance of convenience, and
(iii) Irreparable loss and injury which cannot be
compensated at a later stage.
4.5 Significantly, number of residents are suffering in-
convenience because a car showroom has been opened in violation of the
master plan approved by the Department of Town Planning. The showroom
has also been opened in violation of the terms of the grant of licence. It has
also come on record that the plaintiff has increased the built up area from
339.60 squares meters to 663.136 squares metres which includes basement.
The additional area was constructed by the plaintiff after issuance of
occupancy certificate on 17.03.2011.
4.6 Additionally it is not in dispute that shopping area in
residential house building column has been permitted only for convenience
shopping which means availability of the articles which are of day to day
use for the residents of the area. A full-fledged automobile showroom of
luxury cars namely Volvo, cannot be permitted to be operate from the
planned residential area. The First Appellate Court was expected to
examine the aforesaid issue in the correct perspective.
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4.7 Moreover, it is evident that the plaintiff (respondent) has
indulged in 'forum shopping'. The plaintiff is a respondent in a writ
petition filed by the Residential Welfare Association for the same subject
matter. The plaintiff has also filed a previous suit alleging that Government
Officials have started interfering in his working. It has been alleged in the
previous suit that Government Officials are requesting him to close the
showroom but failed to get any interim order. The order directing the
plaintiff to close the showroom was passed in December, 2016, whereas
the first suit was filed in December, 2017. The subsequent notices are only
in the continuation of the earlier notices of the orders. Hence the plaintiff
did not get any fresh cause of action. So it is apparent that the plaintiff has
indulged in forum shopping.
4.8 The First Appellate Court has also erred in issuing mandatory
injunction at interim stage. In substance, the suit of the plaintiff has been
allowed. Such order of interim mandatory injunction can be passed only
when a very strong prima facie case is made in favour of plaintiff and the
Court is almost certain that the plaintiff would succeed in the suit. In the
facts and the circumstances of the present case, it was not appropriate for
the First Appellate Court to grant relief of mandatory injunction.
4.9 On perusal of the judgment passed by the First Appellate
Court, it is evident that the following four reasons have been recorded
while accepting the appeal apart from issues discussed previously:-
(i) The department has taken a self-contradictory defence.
(ii) The impugned notice in the suit cannot be in continuation
of the earlier notice issued in the year 2016.
(iii) High Court has not given direction to seal the premises.
(iv) MC has sealed the premises in a hurry. It should have
waited for the order of the Court.
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4.10 The First Appellate Court has strangely noted that the defence
of the Town Planning Department is self-contradictory. The contradiction
pointed by the First Appellate Court is that on one hand the matter is sub-
judice before the High Court in CWP-5839-2017, whereas on the other
hand, Department is not ready to wait for the decision of the High Court. In
the opinion of this Court there is no contradiction. The writ petition is filed
by Resident Welfare Association to seek direction for taking action against
the plaintiff. Hence it was not necessary for the department to wait for the
High Court direction. Similarly, the next reason given by the First
Appellate Court is also erroneous because if misuse of the premises
continues, the department is required to issue notices and hence there is no
restriction in issuing notices in continuation of the previous notice.
4.11 The next reason assigned by the Court is offshoot of the
previous reason. The department is not required to wait for the direction of
the High Court to seal the premises particularly when misuse has not been
stopped and the plaintiff has not been granted any injunction in the
previous suit.
4.12 The last reason assigned by the First Appellate Court is again
perverse. The Town Planning Department was not required to wait till an
order on an application for injunction was passed particularly when in the
previous suit no injunction was granted to the plaintiff. In absence of
restraint order the department has to take action in accordance with the law.
It would not be appropriate for the department to wait for the Court's
decisions in every matter. If a particular step is required to be taken in the
interest of public, in absence of restraint order there is no restriction on the
department to proceed with the matter unless there is any interim order.
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5. Conclusion:-
5.1 Consequently, both the revision petitions are allowed. The
impugned order passed by the First Appellate Court on 05.07.2019 is set
aside and that of the trial Court is restored.
5.2 It shall be open to the State Government to seal again the
premises, which is stated to have been opened by the plaintiff pursuant to
the orders passed by the First Appellate Court.
(ANIL KSHETARPAL)
JUDGE
20.04.2024
Monika
1. Whether speaking/ reasoned : Yes /No
2. Whether reportable : Yes /No
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