RSA No.1244 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1244 of 2008 Date of Decision: 19.2.2009 Municipal Corporation, Bathinda ..Appellant Vs. Chaman Lal & Ors. ..Respondents Coram: Hon'ble Mr. Justice Vinod K.Sharma Present: Mr.Vinish Singla, Advocate, for the appellant. Vinod K.Sharma,J. (Oral) Notice of motion. Mr.Munish Jolly, Advocate, accepts notice on behalf of the respondents. This regular second appeal is directed against the judgments and decree dated 5.9.2005 and 31.10.2006 passed by the learned courts below vide which suit filed by the plaintiff-respondents for injunction stands decreed. The plaintiffs brought a suit on the plea that plaintiffs No.1 to 8 are the owners of 1000 sq. yards of land comprised in Khasra No.4927, RSA No.1244 of 2008 2 Mehna Patti, Paras Ram Nagar, Bathinda, whereas Babu Ram, plaintiff No.9 is the owner of 300 sq.yards of land comprised in Khasra No.4933 Mehna Patti, Paras Ram Nagar, Bathinda. The land was said to have been purchased by plaintiffs No.1 to 8 jointly vide registered sale deed No.5220 dated 15.3.1972, whereas plaintiff No.9 purchased land measuring 300 sq.yards vide sale deed dated 8.8.1980. The suit land was thereafter got partitioned and the plaintiffs claimed themselves to be in possession of the plot falling to their shares and they have laid plinths in their plots. Chaman Lal plaintiff No.1 was said to have constructed house over his plot which had fallen to his share more than 15 years back and electricity connection is also stands installed in the said house in his name and Babu Ram plaintiff No.9 too has also constructed a house over the plot falling to his share about 16 years back . He has also got electric connection. Hem Raj son of Dhani Ram who was one of the co-vendees with plaintiffs No.1 to 8 sold the same where the vendees constructed four rooms house in plot 16 years ago. The plaintiffs and their co-vendees left out 20' wide streets at the spot through their land and electricity poles and telephone wires have also been laid. It was the case of the plaintiff/respondents that now employees of the Municipal Council, Bathinda have started taking measurement to lay out a 80' wide road at the spot. The road was proposed to be constructed through the houses of the plaintiffs. It was claimed that the appellant-defendant was not competent either to disturb the peaceful possession of the plaintiffs over the plot or carve out any road at the spot RSA No.1244 of 2008 3 through the land of the plaintiffs except after acquiring under the Land Acquisition Act, or in accordance with Section 58 read with section 169 of the Punjab Municipal Act. It was also the case of the plaintiffs that defendant-appellant was not competent to lay road over the land of the plaintiffs except after due acquisition and payment of just compensation. It was asserted that no acquisition process has ever been started much less completed nor any compensation assessed or tendered for payment to any of the plaintiffs. It was also their case that the alleged scheme was not framed or prepared in accordance with the Punjab Municipal General Rules, 1979, therefore, no legal or valid scheme applicable to the area was in existence. It was asserted that no notice was issued to any of the owner/occupiers of immovable property proposed to be included in the the alleged town planning scheme nor objections were invited. Thus, it was claimed that the action of the defendant-appellant was in violation of the statutory provisions. On notice the defendant filed written statement taking legal objections that the suit was not maintainable. The cause of action of the plaintiff to file the suit was also challenged. It was also claimed that the suit was not competent as no notice under section 49 of the Punjab Municipal Act was served on the defendant/appellant by the plaintiffs before filing the suit. It was claimed that the plaintiffs had not come to the court with clean hands and the suit was bad for misjoinder of necessary parties. On merit, defendant denied that the plaintiffs were owners of RSA No.1244 of 2008 4 the land in dispute. However, it was admitted that the plaintiffs No.1 to 9 are residents of Paras Ram Nagar. The case set up was that the house in question is new one and there is no old construction. Knowledge of the scheme was attributed to the plaintiffs. It was claimed that the scheme was sanctioned on 3.3.1989 and for this purpose unbuilt area was declared through resolution No.690 dated 3.4.1981 of Municipal Committee, Bathinda which stood confirmed by the State of Punjab on 7.7.1983. The scheme was said to have been published in Daily Punjabi Ajit on 14.5.1985. It was claimed that objections were invited from the residents and thus, it was asserted that legal and valid scheme applicable to the area was in force. On the pleadings of the parties, learned trial court was pleased to frame the following issues:- 1. Whether the plaintiff is entitled for permanent injunction for the reasons mentioned in the plaint? OPP 2. Whether the suit of the plaintiff is not maintainable in the present form? OPD 3. Whether plaintiffs have no locus standi and cause of action to file the present suit? OPD 4. Whether suit is bad for non-issuance of notice U/s 49 of the Punjab Municipal Act? OPD 5. Whether suit is bad for mis-joinder of parties? OPD 6. Relief. On appreciation of evidence on record learned trial court RSA No.1244 of 2008 5 recorded a findings that the plaintiffs are entitled to permanent injunction in view of the grounds taken in the plaint. Issues No.2, 3 and 4 were decided in favour of the plaintiff/respondents in view of the findings recorded on issue No.1. The learned trial court also held that the provisions of section 49 of the Act were not applicable as the suit filed was for injunction. Consequently, the suit was decreed. However, liberty was given to the defendant-appellant to proceed with the matter as per provisions contained in the Land Acquisition Act. In appeal findings of the learned trial court stand affirmed. Learned counsel for the appellant contends that this appeal raises the following substantial questions of law for consideration:- 1. Whether the provisions of Land Acquisition Act are applicable while transferring the land in accordance with Section 192 (1) (c) of the Punjab Municipal Act, 1911 when it is less than 35% but more than 25%? 2. Whether the implementation of Town Planning Scheme can be challenged in civil courts? In support of the substantial questions of law, learned counsel for the appellant vehemently contends that once it was proved on record that the scheme was sanctioned by the State Government on 7.7.1989 the provisions of Section 192 (1) (c) of the Punjab Municipal Act, 1911 were applicable under which the appellant/defendant was entitled to acquire 25 per cent of land owned by an owner without payment of any compensation. RSA No.1244 of 2008 6 It is also the contention of the learned counsel for the appellant that the implementation of Town Planning Scheme cannot be challenged in civil court as the jurisdiction of the civil court is barred. The learned counsel for the appellant prays that this appeal be accepted, by answering the substantial questions of law in favour of the appellant. Mr.Munish Jolly, learned counsel for the respondents, however, contends that the substantial questions of law deserve to be answered against the appellant/defendant in view of the judgment of Hon'ble Supreme Court in the case of Yogendra Pal and Ors. Vs. Municipality, Bathinda and another AIR 1994 SC 2550, wherein Hon'ble Supreme Court has been pleased to lay down as under:- “ In the absence of any provision in the Act which suggests that the landowner continues to be the owner of the land or that the land remains in his possession in spite of the transfer and that he is entitled to deal with or dispose of the same as he desires, it is obvious that the use of the word “transferred” is a euphemism for “acquisition”. If the land was not to vest in the Municipal Committee there was no need for the Legislature to provide for payment of compensation even when the land so “transferred” exceeds 25 per cent of he total holding of the landowner. When the land is “transferred” under Section 192 (1) (c) of the Act, the transfer is nothing short of acquisition divesting the landowner of all his rights as owner of the land. RSA No.1244 of 2008 7 The provisions of Section 192 (1) (c) of the Punjab Municipal Act, 1911 and the corresponding provisions of Section 203 (1) (c) of the Haryana Municipal Act, 1973 for compulsory transfer of the land to the Municipal Committees without payment of compensation are violative of Art. 14 of Constitution. However, the Supreme Court in public interest declared that the concerned provisions of the two enactments would be void from the date of decision in the instant case.” The contention of the learned counsel for the respondents is that in the present case so far the scheme has not been implemented as the plaintiff/respondents have not been dispossessed. The land in dispute does not stand transferred till date as no compensation to any of the land-owners has been paid. It is also the contention of the learned counsel for the respondents that by way of judgment and decree liberty has been granted to the appellant to proceed with the matter in accordance with the law and thus, no prejudice has been caused to the appellant enabling them to invoke the jurisdiction of this court under section 100 of the Code of Civil Procedure. Learned counsel for the respondents further contends that substantial questions of law raised also deserve to be decided against the appellant. In support thereof, learned counsel for the respondents contends that the jurisdiction of the civil courts would not be barred to RSA No.1244 of 2008 8 challenge the scheme in it is shown to be in violation of statutory procedure and provisions of law and the authorities act in violation of principles of natural justice and statutory provisions. On appreciation of evidence learned courts below by way of concurrent finding of fact have recorded a positive finding that, the scheme has not been prepared in accordance with law as no notice was issued to the plaintiff/respondents nor objections were decided. Learned lower appellate court did not go into the merits on the ground that the scheme could be challenged by the plaintiff/respondents by filing a writ petition. The learned lower appellate court, however, recorded a finding that the scheme has not been implemented so far, therefore, in view of law laid down by the Hon'ble Supreme Court in the case of Yogendra Pal and Ors. Vs. Municipality, Bathinda and another (supra) the land of the plaintiff/respondents could not be taken away without acquiring the same either under the Land acquisition Act or under the provisions of Punjab Municipal Act, 1911. The second substantial question of law does not arise for consideration in the present appeal. The first substantial question of law is answered against the appellant in view of the judgment of Hon'ble Supreme Court in the case of Yogendra Pal and Ors. Vs. Municipality, Bathinda and another (supra). No merit. Dismissed. 19.02.2009 (Vinod K.Sharma) rp Judge