RSA No.697 of 1985 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.697 of 1985 (O&M) Date of Decision: 13.07.2010 The Municipal Corporation ..Appellant Vs. S.Ram Singh ..Respondent CORAM: HON'BLE MR.JUSTICE VINOD K.SHARMA Present: Mr.Harsh Aggarwal, Advocate, for the appellant. Mr.Kapil Aggarwal, Advocate, for the respondent. --- 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in Digest? --- Vinod K.Sharma,J. (Oral) CM No.7372-C of 2010 This application under Order 41 Rule 27 read with section 151 of the Code of Civil Procedure (for short the Code) has been moved for permission to lead additional evidence by way of letters attached with the application as Annexures, R.1, R.2 and R.3, translated copies of which have RSA No.697 of 1985 2 also been placed on record. The documents sought to be produced by way of additional evidence are letters written by the Ludhiana Textile Board (Regd.) to the President, the Power Loom Association, Textile Colony, Ludhiana. First letter is dated 20.10.1971 vide which request of the members of the association for allotment of land reserved for green belt adjacent to plot No.C-6,C-7 and A1 to A42 to the respective allottees, was accepted. It was also submitted in the resolution of the Board, that the payment of additional cost qua plots had been received in totality. This area of green belt was allotted to the plot owners. Second letter is from the Zonal Commissioner, Zone-B Municipal Corporation, Ludhiana addressed to the President Power Loom Association Textile Colony, Ludhiana, wherein the factum of allotment of green belt adjoining plot No.C-6, C-7 and A-1 to A-42 was admitted by the Zonal Commissioner, Municipal Corporation. Third letter is from one Assistant Public Information Officer, Zone-B (Drawing) addressed to Rakesh Jain, allottee, in response to the information under Right to Information Act. It was in pursuance to this letter that the letters referred to above said Annexures R.1 and R.2 were supplied to the petitioner. The plaintiff/respondent seeks permission to lead additional evidence to prove these letters by contending, that the letters were necessary for the learned court to arrive at just and proper decision of the case and to effectively decide the dispute between the parties. Though the application is opposed by the learned counsel for RSA No.697 of 1985 3 the appellant, however, the factum of issuance of letters Annexures R.1 and R.2 is not disputed. Keeping in view that the dispute raised in the suit is with regard to the right of Municipal Corporation to interfere with the possession of the plaintiff/respondent, by treating them to be in unauthorized possession of the green belt, these letters are necessary for the court to arrive at just decision of the case. For the reasons stated, this application is allowed. Letters are taken in evidence and exhibited as Ex.PH/1, PH/2 and PH/3. RSA No.697 of 1985 This regular second appeal by the appellant/Corporation is directed against the judgment and decree dated 17.9.1984, passed by the learned lower appellate court, vide which suit filed by the plaintiff/respondent seeking injunction restraining the appellant/defendant from interfering or demolishing the property of the plaintiff/respondent was decreed. The plaintiff/respondent filed a suit pleading therein that his father was allotted plot No.32-A in the Textile Colony, Ludhiana by the Textile Board more than 20 years back. Construction on the plot was raised which was subsequently numbered as BXIII589/32-A. The plaintiff/respondent acquired the proprietary rights of the plot by way of registered gift deed from his father. The plaintiff came to be in enjoyment of property as owner. It was the case of the plaintiff/respondent that the defendant/appellant has no right, title or interest in the property. The case RSA No.697 of 1985 4 further set up was, that officials of the appellant/defendant approached the plaintiff and threatened to demolish the construction raised on the ground, that the plaintiff/respondent was in illegal possession of the property which was under the management and control of the defendant/respondent. It was on account of threat that the plaintiff/respondent approached the learned court to seek injunction against the defendant/appellant from interfering in his peaceful possession or demolishing the property. Suit was contested by the defendant/appellant, wherein preliminary objection with regard to locus standi was taken. Suit was said to be not maintainable for want of statuary notice under section 396 of the Punjab Municipal Corporation Act. On merit, it was pleaded, that the plaintiff/respondent has no right over the site shown on the right side in the site plan attached with the plaint, as it was part of the green belt provided by Textile Board, in the lay out plan of the Textile Colony. The said land was said to have vested in the defendant/appellant, for all intents and purposes. Stand of the defendant/appellant, therefore, was that it had authority to remove the illegal encroachment from the site. Other averments on merit were also denied. On the pleadings of the parties learned trial court framed the following issues:- 1. Whether the plaintiff is the owner in possession of the property in dispute for the last 20 years? OPP 2. Whether the plaintiff is entitled to get the injunction prayed for? OPP RSA No.697 of 1985 5 3. Whether the plaintiff has no locus standi to file the suit? OPD 4. Whether a notice u/s 396 of the Punjab Municipal Corporation Act is necessary before filing the suit? OPD 5. Whether the site in dispute is of Green Belt and vests in the Municipal Corporation? OPD 6. Relief. Issues No.1 to 2 were taken up together by the learned trial court. On appreciation of evidence, learned trial court decided issue No.1 against the plaintiff/respondent by recording, that though the Textile Board had charged from the petitioner for 500 square yards but, in fact, the allottee was allotted plot measuring 40' x 80' only as remaining area was to be left for green belt. The learned trial court held, that the plaintiff/ respondent was in possession of excess area, than the area allotted to him and was in illegal possession. The plaintiff/respondent was held not to be the owner of the disputed plot. In view of the finding on issue No.1, issue No.2 was also decided against the plaintiff/respondent, and he was not held entitled to seek injunction. Issues No.3 and 4 were decided against the defendant/appellant being not pressed. On issue No.5 no findings were given, as it stood covered under issues No.1 and 2. RSA No.697 of 1985 6 In view of the findings recorded, the suit of the plaintiff was dismissed. In appeal, learned lower appellate court, reversed the findings on issues No.1 and 2, primarily for the reason that there was admission by the witnesses of the defendant/appellant that at the time of transfer of the plot, the Textile Board had taken price for 500 square yards. The witness of appellant had also admitted that all the plots in the area had the same area. The learned lower appellate court held that gift deed along with map attached therewith shows that the property in dispute was, in fact, transferred to the plaintiff/respondent by his father. After, appreciating oral and documentary evidence, the learned lower appellate court held, that even if for the sake of argument the plaintiff/respondent was taken to be trespasser, but was in established possession, he could not be dispossessed except by the true owner and that the defendant-appellants were not owner of the property in dispute which was the Textile Board. Learned counsel for the appellant contends, that the appeal raises, the following substantial question of law for consideration by this court: 1. Whether the civil court can interfere with the exercise of statutory duties by the Municipal Corporation in removing illegal encroachment? In support of the substantial question of law, learned counsel for the appellant contended, that the learned lower appellate court failed to notice that the evidence on record showed that the plaintiff/respondent was RSA No.697 of 1985 7 allotted an area measuring 40' x 80' and the area in excess thereof was by way of encroachment of green belt which was not permissible. It is also the contention of the learned counsel for the appellant, that once the management and control of the property was handed over to the Municipal Corporation by the Textile Board, the property was under the management of the Corporation. The learned lower appellate court was not justified in non-suiting the defendant/appellant by holding, that it was not the owner of the property and therefore, could not interfere with the possession of the plaintiff/respondent, even if he was a trespasser. The contention of the learned counsel for the appellant was, that by virtue of transfer of management they were acting on behalf of owner. Therefore, this finding on the face of it is perverse and amounts to interfering in the exercise of statutory duties by the Municipal Corporation in removing illegal encroachment. It is also the contention of the learned counsel for the appellant, that the civil court cannot grant injunction against the exercise of statutory decision, therefore, the substantial question of law be answered in favour of the appellant and against the respondent. On consideration, I find no force in the contention raised by the learned counsel for the plaintiff/respondent which is as under: That the letters Ex.PH/1 and Ex.PH/2 were issued by the Textile Board. These letters prove, that though initially the plaintiff/ respondent, was allotted plot measuring 80' x 40, however, keeping in view the difficulty faced by the allottees, on their representation, the Board by resolution had decided to transfer the green belt which was deducted out of RSA No.697 of 1985 8 area to the allottees. An admission of receipt of sale consideration for that portion of land was also admitted. Matter did not end here. By way of Ex.PH/2, Municipal Corporation also accepted this stand while rejecting the notice issued by the President of the Association claiming right to use the green belt. In view of letters Ex.PH/1 and Ex.PH/2 it is proved beyond any doubt that the plaintiff/respondent was holding this property as owner in pursuance to allotment by true owner, as the ownership of Textile Board is not in dispute. The construction over the property after allotment by the Board was raised about 20 years back and therefore, there is no justification with the Municipal Corporation at this stage to seek removal of encroachment, by assessing that the plaintiff/respondent is in illegal possession, though the possession over the plot is as owner. The substantial question of law raised is, therefore, answered against the appellant, as it cannot be said that the learned lower appellate court has interfered with the discharge of statutory duties. The learned appellate court, in fact, has restrained the defendant/appellant from illegally seeking removal and encroachment wrongly, though the property belongs to plaintiff/respondent and construction thereon was raised 20 years back, along with other plot holders. In view of the answer to the substantial question of law, finding no merit, the appeal is dismissed, but with no order as to costs. (Vinod K.Sharma) 13.07.2010 Judge rp