Disposed

Sudesh Rani v. Subhash Chand Narang

Punjab & Haryana HC23 May 2012CR/3048/2012

Case brief

AI extract

What is this about?

The High Court of Punjab and Haryana dismissed a civil revision petition challenging the vacation of a status quo order. The court held the matter infructuous after a site inspection confirmed violations of sanctioned building plans and confirmed the Estate Office had initiated appropriate action. Consequently, the revision and the underlying suit were disposed of as infructuous.

What did the court decide?

The civil revision petition and the underlying suit were disposed of as infructuous.

Sudesh Rani Vs Subhash Chand Narang — Property and Title | Punjab & Haryana HC (2012)

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Civil Revision No. 3048 of 2012 [1]

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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Civil Revision No. 3048 of 2012 (O&M) Date of decision: 23.5.2012

Smt. Sudesh Rani

.. Petitioner

Subhash Narang

.. Respondent

CORAM: HON'BLE MR. JUSTICE RAJESH BINDAL

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Present: Ms. Anamika B. Mehra, Advocate for the petitioner. Mr. Sanjay Kaushal, Senior Standing Counsel for U.T., Chandigarh.

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Rajesh Bindal J.

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The petitioner-plaintiff has approached this court impugning the order dated 12.5.2012, passed by the learned Civil Judge (Junior Division), Chandigarh whereby the order regarding status quo passed by the court earlier on 9.5.2012, was vacated.

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The suit was filed by the petitioner restraining the respondentdefendant to dug the basement adjoining to the foundation wall of the house of the petitioner-plaintiff. The petitioner-plaintiff is resident of H. No. 1231, Sector 22-B, Chandigarh, whereas the respondent had dug out and was constructing basement in H. No. 1232, Sector 22-B, Chandigarh.

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Learned counsel for the petitioner submitted that the petitioner is owner in possession of H. No. 1231, Sector 22-B, Chandigarh. The respondent purchased adjoining H. No. 1232, Sector 22-B, Chandigarh, which was already constructed upto 2-1/2 storey. After dismantling the construction, the respondent started reconstruction from the basement upwards. Earlier there was no basement in the house in question. For the

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Civil Revision No. 3048 of 2012 [2]

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purpose, he is using heavy machinery like JCB. As a result of digging for construction of basement and with the removal of earth, the foundation of the corner wall of the house of the petitioner has been exposed. The digging has been done in excess of the permissible limits under the rules. As the request of the petitioner, who is a widowed lady for not removing the earth, which could result in endangering the safety of the house owned by the petitioner, was not acceded to by the respondent, the suit was filed.

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Initially, while issuing notice in the suit on 9.5.2012, status quo regarding digging out of the basement was granted. In compliance of Order 39 Rule 3 CPC, the petitioner had placed on record postal receipt. The respondent, in fact, avoided service as he did not receive the summon. The same was received with the report “Mr. Subhash was not present in the office hence the summons have not been received by him.” When the matter was listed before the court on 12.5.2012, despite the fact that the petitioner was not at fault, still the learned court below while issuing fresh notice to the respondent for 21.5.2012, vacated the status quo order passed on 9.5.2012. The fact that notice had been served on the respondent is even evident from the fact that instead of appearing in the suit in question, he filed a suit for permanent injunction against the petitioner inter-alia claiming relief restraining the petitioner from interfering into the construction being carried out at the spot in question. It was further submitted that a complaint was also made to the Estate Office regarding the violations being conducted by the respondent, however, no action was taken.

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To appreciate the contentions being raised by learned counsel for the petitioner and also to ascertain the fact as to whether the construction was being raised by the respondent in violation of the sanctioned plan and also the rules and regulations, applicable for digging out the earth for basement and the manner of construction thereof, this court, while passing the following order on 21.5.2012, requested Mr. Sanjay Kaushal, Senior Standing Counsel, U. T., Chandigarh to get the site inspected and report to this court:

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Civil Revision No. 3048 of 2012 [3]

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“The grievance of the petitioner is that her neighbour is constructing a basement, which is against the sanctioned plan and also the rules, in terms of which certain distance is to be maintained from the adjoining building.

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Request is made to Mr. Sanjay Kaushal, Senior Standing Counsel, U. T., Chandigarh to get the site inspected to see as to whether any violation of law or rule is there or not.

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Copy of the paper book has been handed over by learned counsel for the petitioner to Mr. Sanjay Kaushal, Senior Standing Counsel today in court.

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Adjourned to 23.5.2012.”

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Today, inspection report has been submitted, in terms of which the site in question was inspected by Sudhir Batra, Junior Engineer. The report is extracted below:

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“The revised building plans of above said sites were sanctioned vide T/O Dated 8.4.2011 with the proposal of basement and three storey building by maintaining the 8'-00” distance from the adjoining houses while constructing the basement.

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On the inspection it has been found that the occupiers/owners of the above said buildings excavate excess area for the basement and constructed the end walls of brick masonry instead of R.C.C. retaining walls which are against the sanctioned plans (photographs enclosed).

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Accordingly relevant notices have been issued to the owners of the above said sites to set right the same copy of the same annexed as Annexure-1.”

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A perusal of the aforesaid report shows that on inspection it has been found that the occupiers/owners of the buildings have excavated excess area for the basement and constructed the end walls of brick masonry instead of R.C. C. retaining walls which are against the sanctioned plans and the rules. Photographs of the site were also taken. It is also stated that a notice has been issued to the owner of the building on 22.5.2012 to show

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Civil Revision No. 3048 of 2012 [4]

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cause under Rules 10 and 14 of the Chandigarh Estate Rules, 2007 read with Section 8-A of the Capital of Punjab (Development Regulation) Act, 1952 for the violation done by the owner of the building under construction.

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It has further been stated by learned counsel for U.T., Chandigarh that as on inspection it has been found that the building is being constructed in violation of the sanctioned plan and the rules and regulations applicable for the purpose and the violations being not compoundable, the construction at the site shall be stopped immediately as it is the question of safety of adjoining buildings, in case basement in the building is permitted to be constructed in the manner it is being constructed by the owner of the building. Wherever the foundations of the neighbouring buildings are exposed, earth will be got filled up.

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In view of the aforesaid fair stand taken by learned counsel for U.T., Chandigarh, learned counsel for the petitioner submitted that the present petition as well as the suit filed by the petitioner have been rendered infructuous as the only prayer of the petitioner was that the respondent does not carry out construction of basement of his house, which is in violation of the rules resulting in endangering the safety of adjoining building and as the Estate Office has taken appropriate action in the matter.

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The present petition is accordingly disposed of as infructuous. In terms of the statement made by learned counsel for the petitioner, even the suit filed by the petitioner be also treated as disposed of as infructuous.

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A copy of this order be sent to the learned court below for placing on record on the file of the concerned suit and treat the same as disposed of in terms of the statement of counsel for the petitioner-plaintiff, as noticed above.

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23.5.2012 mk

Sudesh Rani v. Subhash Chand Narang

Case brief

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Sudesh Rani v. Subhash Chand Narang

Case brief

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