The necessity of proving the extent of unauthorized construction and the importance of material evidence to support the claim of unauthorized construction.

Ajay Mohan Goel, J.

1. This Regular Second Appeal has been filed by the appellant against the judgment, dated 13.09.2005, passed by the learned Additional District Judge, Una in Civil Appeal No. 95/03 vide which learned Appellate Court has dismissed the appeal filed by the present appellant/plaintiff and upheld judgment, dated 02.08.2003, passed by learned Sub Judge 1st Class, Court No. II, Una, District Una, H.P.

2. Appellant/plaintiff-Himachal Pradesh Housing and Urban Development Authority had filed a suit for mandatory injunction for demolition of unauthorized construction with regard to MIG-II, House No.269, situated in H.P. Housing Board Colony at Rakkar, Tehsil and District Una. Its case was that the respondent-defendant had applied for allotment of a house on the basis of Hire Purchase Tenancy Agreement and he was allotted MIG-II House No. 269 vide letter, dated 25.03.1987. This was followed by execution of Hire Purchase Tenancy Agreement between the parties, in which the respondent-defendant had given an undertaking to abide by the terms and conditions of the allotment envisaged in the allotment letter as well as Hire Purchase Tenancy Agreement, which conditions, inter-alia, included that in case any extension has to be carried out by the defendant, then the same can be done after the approval of the proposed construction, additions or alteration plan by the plaintiff. The defendant had submitted a plan to carry out further constructions, which was approved with some modifications by the appellant/plaintiff. In the month of December, 1994, the official of the plaintiff posted at Rakkar, Una visited the premises of the defendant and found that defendant was raising unauthorized construction on the portion shown with letters ‘EFGHIJ’ on the allotted land. The matter was reported to the Assistant Engineer of the plaintiff posted at Rakkar, Una, who issued a notice, dated 09.12.1994. But despite this, the defendant continued to carry out unauthorized construction. In these circumstances, the appellant/plaintiff filed the suit for mandatory injunction by demolition of the unauthorized construction.

3. In his written statement, the defendant denied that he had carried out any unauthorized construction on the portion shown with letters ‘EFGHIJ’ on the allotted land and that the addition and extension carried out were duly allowed by the plaintiff and such type of constructions were also allowed by the plaintiff in other houses constructed in the vicinity. He denied that any official of the plaintiff had visited his house, as alleged or that he had received any notice from the plaintiff.

4. In order to prove its case, plaintiff examined two witnesses. PW-1 Sh. K.K. Kalia, Assistant Engineer of the plaintiff stated that the defendant had sought permission to carry out extra construction, which permission was allowed. However, the defendant started carrying out unauthorized construction and his predecessor accordingly issued a notice to the defendant. But despite this, the defendant did not stop carrying out the unauthorized construction and he went on to complete the same. He further mentions that the unauthorized construction carried out by the defendant was in violation of the provisions of Hire Purchase Tenancy Agreement and the Rules. In his cross-examination, he has stated that he had not prepared any spot inspection report and there was no spot report of his predecessor with regard to unauthorized construction. The site plan was there, but the same was undated. He further deposed that he was not aware as to whether the notice issued to the defendant was received by him or not. He has also admitted that the construction carried out in House Nos. 270, 271 and 286 were similar. He expressed his ignorance to the fact as to whether notices had been issued to the owners of House Nos. 270, 271 and 286. Similarly, PW-2 Achhar Singh, Junior Engineer, H.P. Housing Board, Nalagarh has stated that he had prepared the site plan