Civil Writ Petition No.12568 of 1992 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision:- 20.4.2011 Chhaju Ram ....Petitioner Versus The State of Haryana and others ...Respondents CORAM: HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR Present:- Mr.Ajay Jain, Advocate for the petitioner. Ms.Kirti Singh, Deputy Advocate General, Haryana for respondent Nos.1 and 2. Mr.Mukesh Kumar Verma, Advocate for respondent No.3. M ehinder S ingh S ullar , J. (Oral) Tersenessly, the relevant facts, which require to be noticed for the limited purpose of deciding the core controversy, involved in the instant writ petition and emanating from the record, are that the petitioner has purchased the plot in question, vide registered sale deed dated 11.7.1987, which was a part of khasra bearing No.1066, situated within the municipal limits of Rewari. Having become its owner, the petitioner applied and submitted a proposed building site plan for approval on 6.11.1987 to Municipal Committee, Rewari-respondent No.3 (for brevity “the MC”), as contemplated under section 205 of the Haryana Municipal Act, 1973 (hereinafter to be referred as “the Act”). The site plan of the petitioner was rejected by the Administrator of the MC, by virtue of order dated 1.1.1988 (Annexure P1). 2. Dissatisfied with the order (Annexure P1), the appeal filed by the petitioner was accepted and the matter was remanded back to the Administrator of the MC to decide it afresh by passing a speaking order and after making thorough enquiry by the Deputy Commissioner-cum-appellate authority-respondent No.2 (for short “appellate authority”), by way of order dated 27.4.1988 (Annexure P2). 3. After the remand, the Administrator of the MC again rejected the site Civil Writ Petition No.12568 of 1992 2 plan of the petitioner, by means of impugned order No.732/MC dated 6.6.1990 (Annexure P3). Thereafter, the petitioner filed the appeal, which was accepted by the appellate authority, by virtue of order dated 20.3.1991 (Annexure P4). 4. Aggrieved by the order (Annexure P4), the respondent-MC filed the revision petition, which was accepted by the Commissioner and Secretary to Government, Haryana, Local Government Department -respondent No.1 (for brevity 'revisional authority'), by way of impugned order dated 7.8.1992 (Annexure P6). 5. The petitioner did not feel satisfied and preferred the present writ petition, challenging the impugned orders (Annexures P3 and P6), invoking the provisions of Articles 226 and 227 of the Constitution of India, inter-alia on the following grounds:- i) That the order (Annexure P6) passed by respondent No.1 is not only illegal but without jurisdiction. Section 240 provides that any person aggrieved by the refusal of the committee under section 205 to sanction the erection or re-erection of the building may appeal within 30 days from the date of such prohibition notice or order to such officer as the State Government may appoint for the purpose of hearing such appeals or any of them or falling which appointment, to the Deputy Commissioner and no such refusal, notice or order shall be liable to be called in question, otherwise then by the said appeal. Sub-section 3 of Section 240 provides of the order of the Appellate Authority confirming, set aside or modifying the refusal notice or order appealed from shall be final, provided that refusal, notice or order shall not be modified or set aside until the appellant or committee have had reasonable opportunity of being heard. In the instant case the order passed by the Deputy Commissioner contained in Annexure P4 vide which the Deputy Commissioner has set aside the order (Annexure P3) had become final between the petitioner and the Municipal Committee has rejected the site plan submitted by the petitioner and on appeal that order passed by the Administrator by which the Administrator rejected the site plan submitted by the petitioner was set aside by Deputy Commissioner as is clear from Annexure P-4, therefore, by virtue of Sub-section 3 of Section 240 of 1973 Act no further appeal or revision was maintainable, therefore, the order (Annexure P6) is not only Civil Writ Petition No.12568 of 1992 3 illegal but without jurisdiction. ii) That from the bare reading of the order (Annexure P-6), it is clear that the same has been passed in view of the provisions of Section 253 of the 1973 Act. In fact, Section 253 of the 1973 Act are the general powers of the State Government over the officers, they are in the nature of supervisory powers, otherwise the order passed under Section 205 are appealable under section 240 sub-section 1 of the 1973 Act and according to Sub- section 3 of Section 240 the order of the Appellate Authority is final which means that general rules is that where statute creates a right provides the remedy, no other remedy available. iii)That even otherwise, the impugned order contained in Annexure P6 is contrary to the judgment rendered by the Civil Court on 29.11.1965 contained in Annexure P5. According to the judgment passed by the Civil Court on 29.11.1965 contained in Annexure P5, there was a specific issue as to whether the property in dispute is a part of a public street and vest in the Municipal Committee. The Civil Court while deciding this issue has categorically held that the site in dispute is not a public street and the same does not vest in the Municipal Committee. Thus by no stretch of imagination it could be said that the land in dispute forms a public street which is being used by the inhabitants. The judgment rendered by the Civil Court is binding between the parties and the Municipal Committee has no authority under the Act to declare the plot of the petitioner to be a public street through resolution dated 14.3.1978 under section 180(4) of the Haryana Municipal Act, 1973. In the instant case no evidence has been led by the Municipal Committee whatsoever that at the time of declaring the land in dispute to be a public street, vide resolution dated 14.3.1978 under section 180(4) of the 1973 Act that it had issued notices to its owners in accordance with the law, before declaring the property as a public street. iv)That respondent No.1 has not considered the inspection report of respondent No.2 while setting aside the order dated 20.3.1991 (Annexure P4) wherein the Deputy Commissioner found at the time of his inspection that there was no road or water course neither any severage chamber in the land in dispute. Not only this, the Deputy Commissioner also have taken into consideration the Civil Court's judgment dated 29.11.1965 while approving the site plan submitted by the petitioner vide which the property in dispute was held not to be a public street and which did not vest in the Municipal Committee. Civil Writ Petition No.12568 of 1992 4 v) That respondent No.1 has failed to take into consideration that after passing of the judgment dated 29.11.1965 contained in Annexure P5 by the Civil Court, respondent No.3 has declared the land in dispute to be a public street after 13 years vide its resolution dated 14.3.1978 passed under section 180(4) of the 1973 Act and that too without following procedure of law.” 6. On the basis of aforesaid allegations, the petitioner sought the quashment of impugned orders (Annexures P3 & P6) in the manner indicated hereinabove. 7. The respondents contested the claim of the petitioner and the contesting respondent-MC filed its written statement, inter-alia pleading certain preliminary objections of maintainability of the writ petition, cause of action and locus standi of the petitioner. The case set up by the respondent-MC, in brief in so far as relevant, was that the plot in dispute is being used as a public street, which is part of circular road of Khasra No.1066. The petitioner was not its owner. It was explained that the MC passed resolution No.496 dated 14.3.1978 to declare the plot in dispute as a public street under section 180 of the Act. The civil suit bearing No.643 dated 12.8.1989 filed by the petitioner was pending at the time of filing the written statement and it was claimed by the MC that question of determination of title as to whether the plot in dispute is a public street or not or whether the petitioner is its owner and in possession was still sub-judice in the Civil Court? 8. Levelling a variety of allegations and narrating the sequence of events, in all, according to the MC that since the petitioner is not owner and the plot in dispute is a part of public street, so, the Administrator has rightly rejected the site plan of the petitioner, by way of impugned orders (Annexures P1 & P3) and the same were affirmed by the revisional authority, by means of order (Annexure P6), which was stated to be legal and valid. It will not be out of place to mention here that the respondent-MC has stoutly denied all other allegations contained in the writ petition and prayed for its dismissal. That is how, I am seized of the matter. Civil Writ Petition No.12568 of 1992 5 9. Having heard the learned counsel for the parties, having gone through the record with their valuable help and after bestowal of thoughts over the entire matter, to my mind, the instant petition deserves to be accepted in this context. 10. As is evident from the record that having purchased the plot in question, vide registered sale deed dated 11.7.1987, the petitioner applied and submitted the site plan for approval to the MC, which was initially rejected by its Administrator, vide order (Annexure P1), mainly on the ground that the property in dispute is a public street. In the wake of appellate (remand) order (Annexure P2), the Administrator again rejected the site plan of the petitioner on the same ground, by virtue of impugned order (Annexure P3). The petitioner challenged the same and filed the appeal, which was again accepted by the appellate authority, by means of order (Annexure P4), the operative part of which is as under:- “I myself inspected the land in dispute in the presence of both the parties. At the time of inspection there was no road or water course. There was neither any sewerage chamber in the land in dispute. I agree with the contention of the learned counsel for the appellant that the M.C. is bound by the decision dated 29.11.65 of the Civil Court and the M.C. cannot claim the land pertaining to the plan as its property. Hence I while setting aside the orders dated 2.6.90 of the Administrator, Municipal Committee accept the appeal of the appellant and approve the plan of the appellant in the manner that if the M.C. has laid any sewerage pipe line in the land in dispute then at the expenses of the appellant the same be laid in front of the property shown in the plan the appellant i.e. in west towards circular road in the lane situate on the north of the plot of the appellant and the same may connected to the sewerage line laid in the passage leading to Sarai Balbhadar and the appellant shall got constructed pucca road in the lane at his own expenses. The estimate of the expenses to be incurred on this road and sewerage shall be sent by the Municipal Committee to the appellant within a period of one month of the day of this order and the appellant shall deposit this amount in the M.C. Rewari. The M.C. shall complete the work of road and sewerage within one month.” 11. It is not a matter of dispute that the question of title, whether the land in Civil Writ Petition No.12568 of 1992 6 dispute is a public street and vests in the MC or not was already decided by the Civil Court in civil suit No.138(2) of 1981 titled as “Nemi Chand vs. Municipal Committee” filed by the predecessor-in-interest of vendors of the petitioner, vide judgment dated 29.11.1965 (Annexure P5), wherein it was concluded as under:- “As already discussed above the land in suit is not a public street and does not vest in the Municipal Committee. The plaintiff is the owner in possession of the land in suit and the Municipal Committee cannot be allowed to act in such way as to infringe the rights of the plaintiff over the land in suit. The defendant Municipal Committee in its written statement has admitted that a Petrol Pump had been constructed in the site land without any authority and that the construction over the land without any authority and that the construction over the land had been removed. However from the record it appears that the petrol pump constructed beneath the suit land has still not been removed. Under the circumstances I hold that the plaintiff is entitled to the relief of injunction as prayed for in the plaint and I decide the issue accordingly. RELIEF. In view of my above discussion, I pass an decree for possession and mandatory injunction as prayed for in favour of the plaintiff and against the defendants with costs.” 12. As is clear, the main ground, which appears to have been weighed with the revisional authority while setting aside the order (Annexure P4) and accepting the revision petition of MC, is that the plot in dispute is a part of public street and vests in the MC. Here, to me, the revisional authority slipped into a deep legal error in this respect, because the title of the property has already been decided by the Civil Court in the above indicated civil suit filed by the predecessor-in- interest of vendors of the petitioner, vide judgment (Annexure P5) in this behalf. 13. Not only that, the petitioner again filed civil suit bearing Nos . 643/186 dated 12.8.1989/7.3.1998, for permanent injunction against the respondent-MC. In the wake of pleadings of the parties, the civil Court framed issue No.1 that as to whether the petitioner (plaintiff) is owner in possession of the suit property in question and issue No.5 was whether suit land vests in the defendant committee or not? Civil Writ Petition No.12568 of 1992 7 14. Having completed all the codal formalities, the civil Court decided these issues in favour of the petitioner that the property in dispute, denominated and described in the site plan (Annexure P8) is owned and possessed by the petitioner (plaintiff) and it did not vest in the MC, by means of resolution No.496 dated 14.7.1998, by virtue of findings on issue Nos.1 and 5 in the judgment (Annexure P7), which, in substance, is as under:- “There is a force in the contention of the learned counsel for the plaintiffs. Perusal of Ex.PW1/1 clearly shows that the suit property was purchased by the plaintiffs through Parjan Kumar, the power of attorney of Smt.Savtri Devi. Ex.PW2/1 is the site plan of the same. The suit property is part and parcel of khasra no.1066 and regarding this khasra a case was filed by Sh.Nemi Chand predecessor-in-interest of the vendor of the plaintiffs in the year 1965 against the Municipal Committee and this suit was decided in his favour and in the execution of the decree of the same he had taken the possession of the suit property and thereafter the plots out of this khasra have been sold to various persons and all of them raised construction of Nurshing Homes and houses after getting the site plan sanctioned from the Municipal Committee. Except resolution no.496 dated 14.7.1978 there is nothing on the file to show that the suit property is owned by the Municipal Committee, Rewari. On the other hand, there is sufficient documentary as well as verbal evidence to show that the suit property is owned and possessed by the plaintiffs, therefore, I decide both these issues in favour of the plaintiffs and against the defendants. It is argued by the counsel for the defendants that the suit property is vested in the Municipal Committee vide resolution no.496 dated 14.7.1978, it is amply clear that the plaintiffs are not party when that resolution was passed. Before passing resolution bearing no.496 dated 14.7.1978 the defendants were supposed to give notice to the owner of the same but this has not been done by the defendants. Moreover, Sh.Nemi Chand who was predecessor-in-interest of the vendor of the plaintiffs filed a suit against the defendants in the year 1965 and it was decided in his favour and in the execution of the same he had taken possession of the same, therefore, it does not lie in the mouth of the defendants that the suit property is owned and possessed by them. Therefore, I also decide this issue against the defendants and in favour of the plaintiffs.” Civil Writ Petition No.12568 of 1992 8 15. Meaning thereby, the civil Court has already decided the question of title of the property in dispute in favour of the petitioner, through the medium of judgments (Annexures P5 and P7) and it was held that he is owner of the property in dispute and it does not vest in the MC. Once it is proved that the petitioner is owner of the property in dispute, then, to my mind, the contrary finding of revisional authority in the impugned order (Annexure P6) cannot legally be maintained in the obtaining circumstances of the case. 16. No other legal point, worth consideration, has either been urged or pressed by the learned counsel for the parties. 17. In the light of aforesaid reasons, the instant writ petition is accepted. Consequently, the impugned orders (Annexures P3 and P6) are hereby set aside and the appellate order (Annexure P4) is restored in this relevant connection. (Mehinder Singh Sullar) 20.4.2011 Judge AS Whether to be referred to reporter?Yes/No