R.S.A. No. 856 of 1990 1 IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH R.S.A. No. 856 of 1990 (O&M) Date of Decision : 4.5.2009 Smt. Rittu @ Harneet .......... Appellant Versus The Jalandhar Improvement Trust, Jalandhar, through its Chairman. ...... Respondents CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA Present : Mr. R.C. Setia, Sr. Advocate with Mr. Raman Sharma, Advocate for the appellant. Mr. S.C. Pathela, Advocate for the respondent. **** VINOD K. SHARMA, J. C.M. No. 5361-C of 2007 This application under Section 151 of the Code of Civil Procedure has been moved for reconstruction of the record, and for passing of appropriate orders, in the peculiar facts and circumstances of the case. It is pleaded in the application, that the applicant-appellant had filed a civil suit No. 161 of 1985 for declaration and mandatory injunction claiming herself to be 'Local Displaced Person' as her land stood acquired in 41.6 Acres Development Scheme floated by Jalandhar Improvement Trust. The applicant-appellant demanded the allotment of 1 Kanal plot as per the rules / policy of the Government. The suit filed by the applicant-appellant R.S.A. No. 856 of 1990 2 was decreed by the learned Senior Sub Judge, Jalandhar on 5.5.1987. In appeal filed by the defendant / respondent, the judgment and decree passed by the learned trial Court was set aside, and the suit filed by the plaintiff- appellant was ordered to be dismissed. The applicant- appellant challenged the judgment and decree passed by the learned lower appellate Court by way of regular second appeal No. 856 of 1990, which according to the applicant was allowed with other connected cases as the respondent-defendant made allotment of the plots to other appellants in connected cases who had raised similar claims, and that the regular second appeals filed by them were also allowed by this Court. The case set up by the plaintiff / appellant is, that his case was also decided, however, in view of the fact, that the record of the case was burnt no details can be gathered. It is claimed that the appeal was decided and the trial Court record was returned by this Court on 16.10.1998. The prayer made is, that the application be allowed and the record be reconstructed. The notice of the application was given. The learned counsel appearing on behalf of the respondent has not opposed the application for reconstruction of the record and for disposal of the appeal on merit. The application is accordingly allowed. The copies of the judgment and decree passed by the learned Courts below, are taken on record for disposal of appeal on merit. C.M. No. 5125-C of 2009 Dismissed as withdrawn. R.S.A. No. 856 of 1990 3 R.S.A. No. 856 of 1990, C.M. Nos. 530-C and 3302-C of 2009 This regular second appeal is directed against the judgment and decree dated 21.11.1989 passed by the learned lower appellate Court vide which suit for declaration and mandatory injunction filed by the plaintiff / appellant has been ordered to be dismissed. The plaintiff / appellant claimed to be the owner of the land which was acquired under the development scheme of 41.6 acres. The case of the plaintiff / appellant was, that there is a provision, that whenever the land is acquired the 'Local Displaced Person' is entitled to allotment of plot in lieu of the land acquired. The plaintiff / appellant claimed, that she was in possession of 1 Kanal plot, therefore, she was entitled to allotment of plot under the 41.6 Acres Development Scheme, but it was not being allotted to the plaintiff / appellant. The necessity, therefore, arose for seeking declaration with consequential relief of mandatory injunction. The learned trial Court keeping in view the admission by DW-1 i.e. Harbhajan Ram, Kanugo, that the plaintiff / appellant was paid Rs. 4883.49 Ps as compensation by the Land Acquisition Collector held that the land of the plaintiff / appellant was acquired for development of 41.6 acres scheme prepared on 12.6.1963. The claim was contested on the plea, that the case of the plaintiff / appellant was not covered within the definition of “Local Displaced Persons” under the Punjab Town Improvement (Utilization of Land and Allotment of Plots ) Rules 1975, which reads as under :- “Local displaced persons means a person who is owner R.S.A. No. 856 of 1990 4 of a property acquired by the trust for the execution of a scheme and has been such owner for continuous period of two years immediately before the first publication of the scheme by the Trust under Section 36 of the Punjab Town Improvement Act, 1922.” The learned trial Court held, that the Rules on which reliance was placed by the defendant / respondent were published on 18.9.1975, did not have retrospective effect. The Rules, therefore, were said to be not applicable to the scheme published before 1975. The learned trial Court, was pleased to hold, that prior to coming into force 1975 Rules there was no stipulation, that a person for being covered under the definition of 'Local Displaced Person' should have been owner for continuous period of two years immediately before the publication of the scheme. The learned trial Court was further pleased to hold that the land of the plaintiff / appellant was acquired much prior to 1970. The learned trial Court was pleased to observe, that the record produced showed, that certain persons were allotted plots after 1975, whose land was acquired before the said date. It was held, that the plaintiff / appellant was entitled to declaration and mandatory injunction for allotment of plot. The issues regarding maintainability, the valuation and suit being barred by limitation, were not pressed and were accordingly decided against the defendant / respondent. In appeal filed by the defendant / respondent the decree passed by the learned trial Court stands reversed. The learned lower appellate Court was pleased to hold that the 'Local Displaced Person' was defined in Rule 2 (b) of the Jalandhar Improvement, Land Disposal Rules, 1954, which R.S.A. No. 856 of 1990 5 described the 'Local Displaced Person' to be a person whose property was acquired by the Trust for execution of a Scheme under the Punjab Development of Damaged Areas Act, 1951. Under Rule 6(1) of 1954 Rules a displaced person was entitled to the allotment of plot on preferential basis if the scheme was framed under the Punjab Development of Damaged Areas Act, 1951. The learned lower appellate Court further held, that Rule 6(2) on which reliance was placed was not applicable, as it dealt with different propositions with regard to the scheme framed under the Punjab Town Improvement Act. It was held, that the definition given under Section 2(b) was not applicable to the scheme framed under Section 6(2). The learned lower appellate Court held, that the scheme was framed under the Punjab Town Improvement Act, 1922, and not under the Punjab Development of Damaged Areas Act, 1951, therefore, the case of the plaintiff / appellant would fall under Rule 6(2) of the Rules, where the definition of the 'Local Displaced Person' was not given. The learned lower appellate Court held that for want of definition of 'Local Displaced Person' the plaintiff / appellant did not fall under the definition of 'Local Displaced Person' to claim allotment of plot. The learned lower appellate Court further held that earlier suit was filed by father of the plaintiff / appellant, but on attaining majority instead of opting to proceed further with the suit herself, the suit was got dismissed. The learned lower appellate Court for want of school leaving certificate was pleased to draw adverse inference against the plaintiff / R.S.A. No. 856 of 1990 6 appellant. It was held, that the suit was barred under Order 23 Rule 1(4) of the CPC, though the provisions of res judicata were not attracted. The appeal was allowed and the suit filed by the plaintiff / appellant was ordered to be dismissed. Mr. R.C. Setia, learned senior counsel appearing on behalf of the appellant contended that the appeal raises the following substantial question of law :- Whether the judgment and decree passed by the learned lower appellate Court is outcome of misreading of provisions of the Punjab Town Improvement Act, 1922 and the Rules framed thereunder, thus, perverse ? The learned counsel for the appellant in support of the substantial question of law contended, that the learned lower appellate Court failed to notice that amendment in the Jalandhar Improvement, Land Disposal Rules, 1954 was made in the year 1975 wherein it was stipulated that for a person to claim status of a 'displaced person' he is to be owner of the property for a continuous period of two years immediately before the publication of first scheme under Section 36 of the Punjab Town Improvement Act, 1922. The contention of the learned senior counsel for the appellant is, that prior to amendment of the 1954 Rules there was no such stipulation, therefore, the learned trial Court was right in holding, that the reliance placed by the defendant / respondent to non-suit the plaintiff / appellant was not sustainable. The learned lower appellate Court made out a new case for the defendant / respondent, which is not permissible in law as the Court R.S.A. No. 856 of 1990 7 could not make out altogether a new case which was not pleaded by the party. It is also the contention of the learned senior counsel for the appellant, that at the time of framing of the scheme, and acquisition of land in 1963 Rules of 1954 were applicable. These Rules were framed under Clause VIII of Punjab Town Improvement Act, 1922. The Rule 2(b) of the said Rules defines the “Local Displaced Person” as under :- “Local displaced person means a person whose property has been acquired by the Trust for the execution of a scheme under the Punjab Development of Damaged Areas Act, 1951.” It is clear from the definition of the “Local Displaced Person” that there is no stipulation in the definition that at the time of acquisition the displaced person should be owner of the property for a continuous period of 2 years, which was introduced only by way of amendment in the year 1975. It is contended, that the judgment and decree passed by the learned lower appellate Court is outcome of misreading of the provisions of the Act and the Rules and, therefore, perverse. On consideration of the matter, I find force in the contention raised by the learned senior counsel for the appellant. It cannot be disputed, that the amended Rules of 1975, could not be applied retrospectively to the acquisition made prior to coming into force of the amended Rules. It also cannot be disputed, that prior to amendment of Rules, 1975 the 'Local Displaced Person' was defined to mean a person whose property was acquired by the Trust for execution of scheme under the Punjab R.S.A. No. 856 of 1990 8 Development of Damaged Areas Act, 1951. These rules were framed in exercise of powers under Section 74 of the Punjab Town Improvement Act, 1922. It is also not in dispute, that there is no other definition of 'Local Displaced Person' under the Act, though the Rules have been framed in exercise of powers conferred under the Punjab Town Improvement Act, 1922. In case the rights of a person are to be determined as a 'Local Displaced Person' then definition as given under Rule 2(b) could only be applied to scheme under Town Improvement Act as there is no other definition. It is not the case of the defendant / respondent, that no plots were allotted to the local displaced persons. Once the factum, that under the Scheme local displaced persons were entitled to the allotment, then the claim of the plaintiff / appellant could not be rejected merely on the ground, that the 'Local Displaced Person' has not been described with regard to the Schemes framed under the Punjab Town Improvement Act, 1922, as held by the learned lower appellate Court. The challenge to the allotment made to the persons similarly situated by the defendant / respondent already stands rejected by this Court. One such case being RSA No. 347 of 1984 Jalandhar Improvement Trust, Jalandhar Vs. Rachhpal Singh deceased through his legal representatives, decided on November 25, 2002. The review against the judgment was also dismissed by this Court on 25.1.2005. It is further pertinent to mention, that the learned lower appellate Court wrongly held the suit to be not maintainable by invoking Order 23 of the Code of Civil Procedure even though the plaintiff / appellant was minor and the suit was not decided on merit. The plaintiff / appellant had a right to file the suit on attaining majority. It was for that R.S.A. No. 856 of 1990 9 reason, that issue regarding maintainability of the suit was not pressed by the defendant / respondent in the trial Court. In view of the fact, that the issue regarding maintainability was not pressed before the learned trial Court, it was not open to the learned lower appellate Court to have entertained the objection regarding maintainability of the suit. The objection otherwise also was not maintainable, as the plaintiff / appellant being minor was not bound by the acts of the Guardian which were against her interest. For the reasons stated above, the substantial question of law is answered in favour of the plaintiff / appellant and it is held, that the judgment and decree passed by the learned lower appellate Court is outcome of misreading of provisions of Act and Rules and thus perverse, therefore, no sustainable in law. Consequently, this regular second appeal is allowed, the judgment and decree passed by the learned lower appellate Court is set aside and that of learned trial Court is restored, but with no order as to costs. 4.5.2009 ( VINOD K. SHARMA ) 'sp' JUDGE