R.S.A. No. 3040 of 1984 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 3040 of 1984 Date of decision: 03.02.2010 Niranjan Lal ....Appellant Versus Municipal Committee, Bathinda and others ....Respondents CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: -Mr. H.R. Bhardwaj, Advocate, for Mr. R.K. Battas, Advocate, for the appellant. VINOD K. SHARMA, J.(ORAL) This regular second appeal is directed against the judgment and decree dated 3.8.1984, passed by the learned Courts below, vide which the suit for permanent injunction filed by the plaintiff/appellant, was dismissed. The plaintiff/appellant brought a suit for permanent injunction restraining the defendant/respondents from making construction/encroachment and lining the sewerage in the plot in dispute situated near Yadav Workshop, G.T. Road, Bathinda. The pleaded case of the plaintiff/appellant was, that the plaintiff is the owner in possession of plot in dispute measuring 27 feet x 120 feet. The plot was covered in the Town Planning Scheme of unbuilt area No.2 Part I of Bathinda. The defendants were bent upon unlawfully and without any jurisdiction to raise some construction and encroach the plot by linking sewerage in the plot of the plaintiff. The defendant/respondents did not desist in spite of requests made in this regard. The suit was contested by the defendant/respondents, by pleading that under the Town Planning Scheme of unbuilt area No.2 R.S.A. No. 3040 of 1984 -2- Part I of Bathinda, an area of 25% of the plot in dispute owned by the plaintiff was acquired for public street, and thereafter the plan submitted by the plaintiff/appellant to the Municipal Committee for grant of permission for construction, was sanctioned. It was pleaded case of the defendant/respondents, that the sewerage has been laid in the street. It was pleaded that acquisition of 25% of area by defendant/respondents was well within knowledge of appellant. In the replication, the plaintiff/appellant reiterated the averments made in the plaint and denied those made in the written statement. On the pleadings of the parties, the learned trial Court framed the following issues: - “1. Whether the plaintiff is the owner and in possession of the plot in dispute? OPP 2. Whether the defendants lining sewerage in the plot of the plaintiff? OPD 3. Whether the defendant is entitled to claim 25% of the land from the plot of the plaintiff? OPD 4. Whether the plaintiff is entitled to the injunction prayed for? OPP 5. Whether the land of the plaintiff has been left for public street to the extent of 25%? 6. Relief.” On appreciation of evidence, the learned trial Court on issue No.1 held, that the ownership of the plaintiff/appellant was not contested by the defendants, therefore, issue was decided in favour of the plaintiff/appellant. On issue No.2, the learned trial Court came to the conclusion, that the Municipal Committee already had laid the sewerage in a portion of the plot of plaintiff/appellant, therefore, this issue became redundant. On issue No.3, the learned trial Court recorded a finding, that R.S.A. No. 3040 of 1984 -3- the plot in dispute was admittedly covered under the Town Planning Scheme of Unbuilt Area No.2 Part I, Bathinda, and in view of the provisions of Section 192 of the Punjab Municipal Act, 25% of the area of the owners of the plot covered under the Scheme could be acquired without paying any compensation. Therefore, on issue No.3 it was held, that the Municipal Committee acquired an area of 25% of the plot in dispute belonging to the plaintiff/appellant for construction of street and for other common purposes. This issue was decided in favour of the defendant/respondents and against the plaintiff/appellant. On issue No.5, the learned trial Court held, that an area of 7 feet in width, was acquired out of the plot of the plaintiff under the Town Planning Scheme, as mentioned in written statement by the defendant/respondents. Issue No.5 was, therefore, decided in favour of the defendant/respondents. It was held, that the plaintiff/appellant was not entitled to injunction. Needless to mention here, that on issue No.4 it was held, that the part of the land of the appellant stood acquired. This was in view of the proved fact, that while granting sanction of construction, the plaintiff/appellant was conveyed, this fact. In appeal, the findings recorded by the learned trial Court were affirmed, and it was further held that plaintiff/appellant was not entitled to injection, as under Section 132 of the Municipal Act, Municipal Committee could use the land for services. The person/owner of the property could claim compensation, if any damage was caused to the property while laying down the services. It is not the case of the plaintiff/appellant that any loss was caused to the property while laying down of the sewerage, nor any compensation was claimed on that account of damages. R.S.A. No. 3040 of 1984 -4- Learned counsel for the appellant contends that this appeal raises the following substantial questions of law: - “1. Whether the Town Planning Scheme framed under Section 192 of the Municipal Act, entitling the respondents to acquire 25% of the land on the road without payment of compensation, is not invalid being void under Article 300 of the Constitution of India? 2. Whether in view of the admitted position, the appellant was entitled to compensation for the land encroached/acquired by the Municipal Committee? In support of the substantial questions of law, the learned counsel for the appellant vehemently contended, that it was admitted case of the defendant/respondents, that 7 feet wide area from the plot of the plaintiff/appellant had been acquired, without payment of compensation to the appellant. The action of the defendant/respondents was, therefore, bad in law and the plaintiff/appellant was entitled to injunction. The Section 192 of the Punjab Municipal Act was declared to be ultra vires the Constitution of India by the Hon'ble Supreme Court in Yogendra Pal Vs. Municipality, Bathinda, 1995(1) PLR 338. The learned counsel for the appellant referred to para 30 of the judgment in support of his contention, claiming compensation. Para 30 of the judgment reads as under: - “30. As held above, the provisions of S. 192(1)(c) of the Punjab Municipal Act, 1911 and of S. 203(1)(c) of the Haryana Municipal Act, 1973 are violative of Article 14 of the Constitution. Hence the acquisitions of the appellants' land under the respective provisions were bad in law. The question still remans as to what relief the appellants can be granted. It is now well-settled by the decisions of this Court beginning with I.C. Golak Nath v. R.S.A. No. 3040 of 1984 -5- State of Punbjab, 1967(2) SCR 762 that the Court can mould the relief to meet the exigencies of the circumstances and also make the law laid down by it prospective in operation. We are informed that till date the Municipal Committees in both Punjab and Haryana States have similarly acquired lands for their respective town planning schemes and in many cases the schemes have also been completed. It is only some of the land- owners who had approached the courts and the decisions of the courts have become final in many of those cases. It would not, therefore, be in the public interest to unsettle the settle state of affairs. It would create total chaos and an unmanageable situation for the Municipal Committees if the said provisions of the respective statutes and the land acquisitions made thereunder are declared void with retrospective effect. We, therefore, propose to declare that the concerned provisions of the two enactments would be void from the date of this decision.” It was the contention of the learned counsel for the appellant, that in view of the authoritative pronouncement of the Hon'ble Court in Yogendra Pal Vs. Municipality, Bathinda (supra), the appellant was atleast entitled to compensation for the acquired land. On consideration, I find no force in the contentions raised by the learned counsel for the appellant. The reading of the judgment of the Hon'ble Supreme Court shows that while declaring Section 192 of the Punjab Municipal Act to be ultra vires the Constitution, in the judgment it was held that this would operate prospectively and not retrospectively. Admittedly, the Scheme framed, under which the land of the appellant was acquired, was prior to the pronouncement of the judgment of the Hon'ble Supreme Court, therefore, no benefit can be taken by the appellant from the pronouncement of the judgment or on R.S.A. No. 3040 of 1984 -6- account of declaration that Section 192 of the Punjab Municipal Act was ultra vires Constitution. The appellant was not entitled to any compensation for the acquired land, as under the law, then in force, 25% of the area belonging to the owner could be taken by the Municipality free of charge for the implementation of the Scheme. As regards claim of compensation for laying of sewerage etc. is concerned, the appellant is not entitled to any relief, as no base was laid for this claim nor it was shown as to what damage was caused to the property of the plaintiff/appellant due to the laying down of the services by the Municipal Committee. The substantial questions of law raised, therefore, are answered against the appellant. The appeal being without any merit is dismissed, but with no order as to costs. (Vinod K. Sharma) Judge February 03, 2010 R.S.