RSA No.1283 of 1985 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1283 of 1985 Date of Decision : 31.01.2011 Municipality Safidon and another .......Appellants Versus Murli Ram and others .......Respondents RSA No.1328 of 1985 Daya Nand and another .......Appellants Versus Murli Ram and others .......Respondents CORAM:- HON'BLE MR. JUSTICE JITENDRA CHAUHAN Present: Ms. Manmeet Kaur, Advocate, for the appellants in RSA No.1283 of 1985 (Municipal Committee Safidon). Mr. D K Jangra, Advocate, for the appellants in RSA No.1328 of 1985 (Auction Purchasers). Mr. S K Chauhan, Advocate, for the respondents (Murli Ram and others). **** JITENDRA CHAUHAN, J. (ORAL) 1. Two appeals, titled as Municipality Safidon and another Vs. Murli Ram and others and Daya Nand and another Vs. Murli Ram 1 RSA No.1283 of 1985 and others, RSA Nos.1283 and 1329 of 1985, respectively, are being disposed of by this common judgment as the same questions of fact and law are involved therein. However, the facts are being derived from RSA No.1283 of 1985. 2. The appellants have come in appeal assailing the judgments and decrees passed by the learned Courts below. Brief facts of the case which require necessary mention for deciding the core controversy involved herein are as under:- The plaintiff-respondents, Murli Ram and others, in their representative capacity being residents of Safidon City, preferred a suit before the Court of learned Sub Judge, 1st Class, Safidon, seeking a decree for permanent injunction restraining the defendant-appellants i.e., Municipality Safidon (in RSA No.1283 of 1985), from alienating two plots measuring 262 square yards and 173 square yards situated in the Safidon Town to defendant-appellants (in RSA No.1328 of 1985), on the ground that the plots in question formed a part of the shamilat deh of Safidon Town and the land was being used by the inhabitants of the locality as common place. It was further alleged that the Municipal Committee, Safidon (appellant herein), wanted to sell these plots at a much lower price than the rates prevalent at that time. It was further the case of the plaintiffs that since the Haryana Municipal Common Lands (Regulation) Act had been declared ultravires by this High Court and was no 2 RSA No.1283 of 1985 more in vogue in the State of Haryana, therefore, the shamilat deh plots did not vest in the Municipal Committee anymore and the action of the Committee to sell the plots in question was illegal. In this background, the plaintiff-respondents sought a decree for permanent injunction restraining the Municipal Committee from alienating these plots to anyone and further to direct the defendant-appellants (in RSA No.1328 of 1985) to remove every type of encroachment and restrain them from raising any construction thereupon. 3. The defendant-appellants (in RSA No.1283 of 1985) contested the suit of the plaintiff-respondents and filed a written statement. It was inter alia averred that the plaintiffs had no locus standi, the suit was bad for mis-joinder and non-joinder of the necessary parties and the land in question vested in the Municipal Committee being part of the shamilat deh. It was further submitted that proper procedure had been adopted by the Committee while alienating the land in question and the plaintiff-respondents could not represent the entire body of co-owners of the shamilat deh since none of them was a co-owner of the land in question. Defendant-appellants (in RSA No.1328 of 1985) filed a separate written statement taking almost a similar stand to that of the Municipal Committee and inter alia contended that as the plaintiff-respondents were not the land- holders in the revenue estate of Safidon, so they did not have any right to bring this suit. 3 RSA No.1283 of 1985 4. In the replication to the written statements filed by the defendant-appellants, the plaintiff-respondents denied all the averments thereof and affirmed those contained in the plaint. 5. From the pleadings of the parties, the following issues were framed by the learned trial Court:- 1. Whether the suit land shown in red colour in the rough site plan attached with the plaint is a part of shamilat deh of Safidon and being so it is used by the plaintiffs and other inhabitants of the locality as a open space since time immemorial, if so its effect? OPP. 2. Whether defendants No.2 has illegally entered into contract with defendant set No.1 to sell the same in their favour at the rate of Rs.20/- per square yard when price of the same is more than that? OPP 3. Whether defendant set No.2 has no right to alienate the property in dispute? OPP 4. Whether encroachment made by defendant set No.1 in collusion with defendant set No.2 is liable to be removed? OPP 5. Whether the plaintiffs have no locus-standi to file the present suit? OPD 6. Whether the suit is not maintainable in the present form? OPD 7. Whether the compliance of Order 1 Rule 8 of the C.P.C. has not been done by the plaintiff? OPD 4 RSA No.1283 of 1985 8. Whether the suit is bad for non-joinder and mis- joinder of necessary parties? OPD 9. Whether the suit is bad for non-describing the suit land properly? OPD 10. Whether the suit is bad for mis-joinder of causes of action? OPD 11. Relief. 6. Vide judgment and decree dated 23.02.1983, Sub Judge 1st Class, Safidon, the suit filed by the plaintiff-respondents was decreed. Aggrieved by the said judgment and decree, the defendant- appellants (in RSA Nos.1283 and 1328 of 1985) preferred two separate appeals and the same were dismissed by Additional District Judge (I), Jind, vide common judgment and decree dated 03.01.1985. Hence the present appeals. 7. The learned counsel for the appellants has submitted that the entry, Ex.D4, dated 30.11.1978 made in the Inventory Registry, is based on the survey carried out in the year 1966 when the Municipal Committee, Safidon came into being. The learned counsel has further submitted that the Deputy Commissioner, Sangrur, ordered for carrying out a survey of the land in question. In pursuance thereof, a survey was undertaken by the Municipal Committee. Notices were issued and the plots in question was identified as the one owned by the Municipal Committee. The land consists of two plots measuring 262 sq. yrds. and 173 sq. yrds., respectively, which were sold by the Committee after proper Munadi by way of open auction dated 5 RSA No.1283 of 1985 29.01.1979 after due publication. The public notices were issued and the signatures of the inhabitants were taken. 8. The learned counsel has further submitted that the respondents do not have any locus standi. They do not own any land in the area. They filed the suit in representative capacity and as such, the suit could not be filed by them. 9. The learned counsel has further argued that the learned Courts below were swayed by the fact that the proceedings were carried out by the Municipal Secretary, Shri Tara Chand, who was holding the current duty charge as Secretary of the Committee on the relevant date. The learned counsel in this regard has submitted that the Secretary of the Committee, Shri Dharampal Sharma, went on leave from 01.09.1979 to 31.11.1979 and order No.23 dated 31.08.1979 was passed sanctioning his leave. Vide the same order, Shri Tara Chand was given current duty charge. The Secretary, Mr. Dharampal Sharma, did not report after the leave period and the charge was given to Shri Tara Chand vide Order No.29 dated 19.12.1979. Thus, the learned counsel argues that the Secretary, Mr. Tara Chand, was fully competent and authorized to sign the proceedings on the relevant dates as current duty charge had been given to him 10. The learned counsel has further submitted that the land is in the proximity of the water pond and, therefore, the learned trial Court completely ignored and misread the relevant provisions (B) and (C) of Section 61 of the Act and the law laid down in Rajinder 6 RSA No.1283 of 1985 Parshad and others Vs. State of Haryana, AIR 1980 (Punjab and Haryana( 37). 11. The learned counsel has further submitted that the Inventory Register of the Municipal Committee, true copy of which is Ex.D4, came into existence on the basis of survey carried out in pursuance of the order of the Deputy Commissioner, Sangrur, carried out in the year 1966. The respondents did not file any objection or representation for participating in the survey. As the land in question was sold by the M.C. after following the proper procedure and the respondents not being the land owners of the area, have no locus standi to approach this Court. 12. Mr. Balbir Singh, Secretary and Mr. Sham Sunder, Accountant, Municipal Committee, Safidon, are present in person along with the original record. 13. On the other hand, the learned counsel for the respondents has submitted that the land being near the pond, cannot be sold at all as the same would lead to violation of Section 61(b) of the Act. The learned counsel has further submitted that the land has been sold at a much cheaper rate than the rates prevalent at the time of auction. The learned counsel further states that the respondents have a right to file the suit in the representative capacity to protect the interests of the community at large being inhabitants of the locality. He has submitted that it is not clear from the record as to how the entries of the land in question have been made in the name of the Municipal Committee. 7 RSA No.1283 of 1985 14. The following law point arises for determination in this appeal:- “Whether the learned Courts below have misread and misinterpreted Ex.D4, the copy of Municipal Property Register ?” 15. I have heard learned counsel for the parties and perused the recorded carefully with their able assistance. 16. The Municipal Committee, Safidon, came into being in the year 1966. In pursuance of the order passed by the then Deputy Commissioner, Sangrur, a survey was carried out to find out the status of the land falling within the area of the Committee. The Municipal Committee, Safidon, prepared 13 maps detailing the charts of the properties falling with the jurisdiction and ownership of the Committee which was duly signed by the President, Municipal Committee, Safidon, firstly on 17.03.1971 and subsequently, on 4.05.1978, when the final registers were made and on the basis thereof, the entries have been reflected in the register, Ex.D4, maintained by the Committee duly signed by the then Secretary, Shri Dharampal. The photocopy of this document was produced before the Court which was signed by the then Secretary, Shri Tara Chand, which was objected to and was not considered by the learned Courts below. The entries so reflected in the register, Ex.D4, prepared on the basis of the chart were duly counter-signed by Patwari Inder Singh, on 4.05.1978. 17. The original record was summoned and perused. Ex.D4 is duly entered in the register maintained by the Committee. 8 RSA No.1283 of 1985 18. On the basis of the evidentiary document on record, it is proved that the land is owned by the Municipal Committee, Safidon. This Court feels that the learned Courts below fell in error by not relying on the document, Ex.D4, authenticated by the then Municipal Secretary, Tara Chand, as it is proved that he was holding current duty charge and subsequently became the Secretary of the Municipal Committee. If he has not signed the original copy, it does not debar him from certifying the original record being current duty charge holder. This Court is of the opinion that both the Courts below have misread and misinterpreted Ex.D4. 19. I also do not find any substance in the argument that the land was sold at a much cheaper rate than the rates prevalent at that time. Once it is proved that the land was sold after adopting due procedure, i.e., publication and munadi, the respondents are not body to determine the value of the plots in question. Moreover, after the land was sold to the appellants in the year 1978-79, they have raised their dwelling units and since then have been living there. It would amount to harassment to a person who has purchased the land as a bona fide purchaser, paid the full consideration and raised a small residential unit, to uproot him after more than three decades. 20. In the circumstances, the present appeals (RSA No.1283 of 1985 and RSA No.1328 of 1985) are allowed and the judgments and decrees passed by the learned Courts below are hereby set aside. Civil Suit No.308 of 1979 filed on 12.11.1979, titled as ‘Murli Ram and others Vs. Daya Nand and others’ is hereby dismissed. No order as to costs. 9 RSA No.1283 of 1985 ( JITENDRA CHAUHAN ) 31.01.2011 JUDGE atulsethi Note: Whether to be referred to reporter ? Yes/No 10