R.S.A. No. 1150 of 2006 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 1150 of 2006 (O&M) Date of decision: 09.1.2009 Chief Town Planner Officer, Govt. of Punjab, Chandigarh ....Appellant Versus Col. Surinder Singh and others ....Respondents CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: Mr. R.L. Gupta, Additional A.G., Punjab. for the appellant. Mr. Sandeep Bansal, Advocate, for respondents No. 4 to 6. Mr. Suvir Sehgal, Advocate, for respondent No. 10 ***** VINOD K. SHARMA, J (ORAL) This order shall dispose of R.S.A. No. 1150 of 2006 titled Chief Town Planner Officer, Govt. of Punjab, Chandigarh Vs. Col. Surinder Singh and others and R.S.A. No. 1264 of 2006 titled Kewal Krishan Vs. Col. Surinder Singh and others , as common questions of law and fact are involved. For brevity sake, facts are being taken from R.S.A. No. 1150 of 2006. The plaintiff/respondents filed a suit for declaration that the site as described in the head-note of the plaint is owned and possessed by the plaintiffs and is not a passage and that the assertion of the defendants R.S.A. No. 1150 of 2006 (O&M) -2- to the contrary is wrong and illegal. The plaintiffs also challenged the amended town planning scheme No. 5 to be wrong, illegal and unauthorised and consequential relief of permanent injunction was claimed restraining the defendants from claiming or carving out any passage in ABCDEFGH and raising any construction or planting trees at the site IJKL shown in green colour of khasra No. 893. The plaintiffs had also taken a plea that notice as envisaged under Section 49 of the Punjab Municipal Act was duly sent and served on defendants No. 7 and 8 but the same was not replied to. The learned Courts below have recorded a concurrent finding of fact that the plaintiff/respondents are owner in possession of the property in dispute marked by letters ABCDEFGH. The learned Courts also held that the suit was maintainable as framed and that it has the jurisdication to try the present suit. The learned Courts held that the site plan attached with theplaint is correct and that the plaintiffs had a locus standi to file the suit. The finding on issue No. 7 was that notice under Section 49 of the Punjab Municipal Act was issued and that the suit was within time. The learned Courts also held that the suit was not bad for mis-joinder of necessary party. The finding on issue No. 9 and other issues, the onus of which was placed on defendants, was decided in favour of the plaintiffs as not pressed. The contention of the learned Additional Advocate General, Punjab, that the suit was bad for non-issuance of notice under Section 80 CPC cannot be accepted as the challenge was to the scheme framed under the Punjab Municipal Act which provides for isusance of notice. This being a special Act would govern the lis between the parties and R.S.A. No. 1150 of 2006 (O&M) -3- general provisions of CPC, therefore, were not applicable to attract the bar of Section 80 CPC. The findings recorded by the learned Courts below are in consonance with law, as after 1994, the land of the land owners cannot be taken away without payment of compensation as the provisions contained in the Punjab Municipal Act permitting 25% of the land to be taken without payment has been declared ultra vires by the Hon'ble Supreme Court. The concurrent finding of fact is sought to be challenged by the learned Additional Advocate General, Punjab, on the plea that the learned Courts below have failed to notice that the suit as framed was not competent for want of notice under Section 80 of the Civil Procedure Code as the scheme which was impugned was actually approved by the State of Punjab. It is the contention of the learned Additional Advocate General, Punjab, that in any case once the Chief Town Planner was impleaded as party, it was incumbent upon the plaintiffs to have issue notice under Section 80 CPC. Thus, the suit as framed was not competent. The learned Additional Advocate General, Punjab, further contends that the learned Courts below wrongly decided issue No. 9. The suit was bad for non-joinder of necessary party as the State of Punjab was necessary party which was not as such impleaded, therefore, the impugned judgments and decrees deserve to be set aside. However, it is noticed that no plea that the suit was bad for want of notice under Section 80 CPC was taken before the Courts below R.S.A. No. 1150 of 2006 (O&M) -4- and the issue No. 9 was decided in favour of the plaintiff/respondents as the defendant/appellant did not press the said issue. Once the finding has been recorded by the Courts below that the plaintiffs were owner in possession of the property in dispute, the State cannot acquire the same without payment of adequate compensation as this would be in violation of Article 31 of the Constitution of India. The order passed by the learned Courts below, therefore, is in consonance with law. This appeal does not raise any question of law, muchless substantial question of law, for consideration by this Court in the regular second appeal. Dismissed. (Vinod K. Sharma) Judge January 9, 2009 R.S.