RSA No.4261 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.4261 of 2008 (O&M) Date of Decision: 13.05.2010 The Commissioner, Municipal Corporation ..Appellant Vs. Radhey Kishan Bhatia & Anr. ..Respondents CORAM: HON'BLE MR.JUSTICE VINOD K.SHARMA Present: Mr.M.K.Sood, Advocate, for the appellant. Mr.P.K.Mutneja, Advocate, for the respondents. --- 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in Digest? --- RSA No.4261 of 2008 2 Vinod K.Sharma,J. (Oral) CM No.6545-C of 2009 For the reasons stated in the application, order dated 22.5.2009 is recalled and the appeal is restored to its original number. RSA No.4261 of 2008 This regular second appeal by the defendant/appellant is directed against the judgment and decree dated 10.12.2007, passed by the learned lower appellate court, decreeing the suit for permanent injunction filed by the plaintiffs/respondents. The plaintiffs/respondents filed a suit for declaration challenging the action of the defendant/Municipal Corporation to conduct auction of land over the Nalla, in pursuance of resolution dated 2.5.1997 passed by the Municipal Corporation with the approval obtained from the Government. Plaintiffs/respondents also challenged the notice published in Punjab Kesari dated 15.9.1997, to be against law and facts and sought a consequential relief of permanent injunction restraining the defendant from auctioning the land over the Nalla for construction of shops/plots. Pleaded case of the plaintiffs/respondents was that they were owners in possession of house constructed on Plot No.1, Neelam Fly Over, N.H.I., NIT, Faridabad measuring 400 square yard. Plot was purchased by the plaintiffs/respondents from Government of India, Rehabilitation Department vide sale certificate dated 14.9.1993. There existed a Nalla on the northern side of the plot. House has been constructed on the plot by plaintiff after the approval from the defendant/Municipal Corporation. RSA No.4261 of 2008 3 Minor variations in the construction were got compounded, under the provisions of Haryana Municipal Corporation Act, 1994 (for short the Act). Pleaded case of the plaintiffs was that the defendant had no right to change the boundaries of the plot. It was pleaded that the area falling between the Nalla and railway line, has been encroached upon by the Jhuggi dwellers, and in spite of representations, no action was taken to remove the said encroachment. The plaintiffs asserted that due to non- covering of Nalla, Dengu spread in the locality, therefore, the plaintiffs along with other residents of the area, as well as Workers of the Escorts Employees Union, made necessary efforts to cover the Nalla and they put cement pipes over the Nalla, at their own expenses. It was also got cleaned and covered with cement pipes in the month of March, 1997. It was pleaded case of the plaintiffs that the gate of the house of the plaintiffs opens towards the Nalla and also the main road which is 20' wide. Plaintiffs also developed green belt by laying earth in the area. Defendant/Municipal Corporation taking advantage of the improvement made by the plaintiffs, and other residents, passed a resolution to sell away the shops/plots in open auction on 99 years lease hold basis. Action of the corporation to auction the plots was challenged by the plaintiffs on the following grounds:- (a) Nala is not a part of land of the defendant which could be sub divided into plots while the plaintiff as well as the workers of the Escorts Employees workers Union Office have placed cement pipes there and covered the Nala at RSA No.4261 of 2008 4 their own expenses. (b) The construction of shops there would increase the difficulty because then pipes could not be fitted there after blockage and the plaintiff would be the sufferer due to leakage of dirty water in the basement of the house of the plaintiff which would also weaken the construction of the house. (c) The defendant has failed to perform his duty to clean the Nala while all the necessary efforts were made by the workers of the Escorts Worker Union. (d) The Ministry of Rehabilitation of Union of India had earlier transferred maintenance rights of public streets, roads and nallas etc. to the defendant Corporation in the year 1960 in view of Section 3 and 56 of the Punjab Municipal Act,1911. The defendant corporation has no right to sell Nalla or the land created over Nalla by placing cement pipes in the nala except to maintain the nalla, road and public street. (e) The lay out plan of NHI, NIT Faridabad shows that the road is 20' wide in front of the house of the plaintiff which leads to this fact that Nalla is included in the definition of the street, hence, the defendant has no right to auction the street for the purpose of opening shops etc. there. RSA No.4261 of 2008 5 (f) That the action of the defendant is, violating the Environment Protection Act 1986 and the guide lines issued by the Supreme Court of India from time to time. (g) The defendant has no right to change the zoning plan by converting the Nalla into shops. (h) The auction notice dated 15.9.1997 is wrong against law and facts and against the public interest hence the same is liable to beset aside. On notice, suit was contested by the defendant/corporation by taking preliminary objection that the plaintiff/respondents have no cause of action to file the suit; locus standi of the plaintiffs/respondents to maintain the suit was also challenged. Suit was said to be bad for concealment of material facts. On merits, it was admitted that the plaintiffs/respondents were owners of area measuring 400 square yards, but the boundaries depicted in the site plan of their house were said to be incorrect. Stand of the defendant/corporation was that on the northern side there is a land between the house of plaintiff and Nala, on the east 20' wide front road, on the west and south there is land of Escorts Medical Centre. Sanction for the construction by the Corporation was not disputed. Case of the defendant/corporation was that according to the building plan, front of the plaintiffs/respondents' plot is on the eastern side opening on 20' wide road. Date of construction of house was disputed. However, it was not disputed that illegal constructions were got compounded as per the provisions of the RSA No.4261 of 2008 6 Act. Basic contention of the defendant/appellant, was that between the Nalla and boundary wall of the plaintiff/respondents there was 17' 5” wide vacant space which belongs to MCF and further in the alignment number of shops already stood allotted by the then FAC/Committee in the year 1970. Presence of the Jhuggies was not denied. With regard to the averments regarding improvement made, it was said to be without permission of the defendant/corporation. Stand of the defendant was that by this action, carrying capacity of water in the Nalla was reduced. It was also the case of the defendant/corporation that being owner of the property in dispute, corporation has every right to auction the plots which was being done in accordance with law and after approval from the State Government. Plea was also raised that as per the provisions of the Act, defendant had every right to revise the lay out plan and Zonal plan. On the averments referred to above, it was prayed that the suit be dismissed. In the replication, averments made in the plaint were reiterated and those made in the written statement were denied. On the pleadings of the parties learned trial court framed the following issues:- 1. Whether the plaintiffs are owners in possession of the suit property detailed in Para No.1 of the plaint? OPP 2. Whether the Resolution dated 2.5.1997 passed by the defendant and approval obtained by it from the Government and auction notice published on 15.2.1997 is RSA No.4261 of 2008 7 illegal, unlawful, null and void? OPP 3. Whether the plaintiffs are entitled to the relief of injunction? OPP 4. Whether the plaintiffs have no locus standi to file the present suit? OPD 5. Whether the plaintiffs have concealed the true facts from the court? OPD 6. Whether the suit is not maintainable in the present form? OPD 7. Whether the suit is bad for want of notice under section 389 of Haryana Municipal Corporation Act, 1994? OPD 8. Relief. Issues No.1 to 3 were taken up together by the learned trial court. On appreciation of evidence, learned trial court held that the plaintiff/respondents, had no right of any kind upon the land over the Nalla and therefore they had no locus standi to raise any objection. Learned trial court further held that merely because the plaintiffs/respondents, were allowed to construct shops in the plot owned by them and that the violations were compounded, did not give right to the plaintiffs to claim any right over the land belonging to the Municipal Corporation, Faridabad. In view of the finding that the land belonged to the Municipal Corporation, Faridabad the learned trial court held that the defendants could use the land in any RSA No.4261 of 2008 8 manner and choice. It was held that the plaintiffs/respondents were not entitled to injunction prayed for. Issues No.1 to 3 were decided against the plaintiffs by the learned trial court. As the defendant, failed to lead any evidence issues No.4 to 7, were decided against the defendant/corporation. Consequently, the suit was dismissed. The plaintiffs/respondents preferred an appeal against the judgment and decree passed by the learned trial court. In view of the admitted position and stand taken by the defendant, learned lower appellate court held that the land measuring 17' 5” in width falling on the northern side of the boundary of the plaintiffs' house, was not a land, on which the defendant/corporation could raise shops or cut plots i.e. raise a market between Nalla and house of the plaintiffs and other neighbourers. Learned lower appellate court further held that the bank of Nala or drain was required to be maintained properly to strengthen, in such a manner so that it may not increase the width of Nalla by flow of water and endanger the construction, which was raised after approval from the defendant/corporation. The learned lower appellate court also held, that in fact the defendant/corporation was required to provide amenities to the respondents/plaintiffs as defined under section 2 (c) of the Faridabad Complex (Regulation and Development) Act, 1971, which include the construction and maintenance of roads, water supply, street lighting, RSA No.4261 of 2008 9 drainage, sewerage, public building, horticulture, landscaping and any other public utility services. The learned lower appellate court held that it was not open to the defendant/corporation to destroy the bank of Nalla by raising a shop, to increase its revenue as was pleaded case of the defendant/municipal corporation, in their written statement. Thereafter by placing reliance on the judgment of Hon'ble Supreme Court in the case of The Municipal Board Manglapur Vs. Mahadeoji Maharaj AIR 1965 SC 1147, learned lower appellate court held that the plaintiffs are entitled to declaration and injunction prayed for. In view of the findings referred to above, findings of the learned trial court on issues No.1 to 3 were reversed and the suit of the plaintiffs/respondents was decreed. Prima facie, this regular second appeal filed by the defendant/ corporation is not competent as it has not been filed by Municipal Corporation, Faridabad but by the Commissioner, Municipal Corporation, Faridabad through Joint Commissioner, who was not a party to the suit. However, the appeal is being decided on merit by treating it to have been filed by Corporation. Learned counsel for the appellant contends, that the appeal raises, the following substantial questions of law for consideration by this court: 1. Whether the judgment and decree passed by the learned courts below, is perverse being contrary to the provisions of the Haryana Municipal Corporation Act, 1994 and RSA No.4261 of 2008 10 against settled proposition of law that no injunction can be granted against the true owner? 2. Whether the plaintiffs/respondents had locus to challenge the action of the defendant/appellant, in the absence of any title or interest in the property, which was being auctioned after the approval by the State Government? In support of first substantial question of law, learned counsel for the appellant referred to Section 193 of the Haryana Municipal Corporation Act, 1994, which provides that all public drains, all drains, along side or under any public street, and all sewage disposal works whether constructed out of the Corporation fund or otherwise, and all works, material and things pertaining therein which are situated in the Municipal area vest in the Corporation. This Section further provides that all public and other drains which are vested in the Corporation under this Act, are referred to corporation drain. Section further provides that for the purposes of enlarging, deepening or otherwise repairing or maintaining any such drain or sewage disposal work, the sub-soil as may be necessary for the said purposes shall also vest in the Corporation. Not only this, as per provisions of this section, all drains and ventilation shafts, pipes and all appliances and fittings connected with the drain works constructed, erected or set up out of the Corporation Fund in or RSA No.4261 of 2008 11 upon premises not belonging to the Corporation whether before or after the commencement of the Act including the one for use of the owner or occupier of such premises or not, shall unless the Corporation has otherwise determined or does at any time otherwise determine, vest and be deemed to have vested in the Corporation. The contention of the learned counsel for the appellant, therefore, was that according to Section 193 of the Act, the area in dispute including the drains was an area which vests in the corporation and therefore, the corporation being its true owner no restraint can be put on its use by the courts. It was also the contention of the learned counsel for the appellant that once the property was under the ownership of the Municipal Corporation, Faridabad, the plaintiffs/respondents had no locus standi to challenge the action of the defendant/corporation in auctioning the plot for construction of shops. It was further the contention of the learned counsel for the appellant, that the learned lower appellate court held the defendant/ Corporation to be the owner and in possession of the property in dispute. The contention of the learned counsel for the appellant further was, that stand of the plaintiffs/respondents was wrong that any construction is being raised on the drain, but in fact, it is to be raised on the land falling between Nalla and property of the plaintiffs, dimension of which is 130 feet. This stand of the learned counsel for the appellant, prima facie is contrary to the pleadings in the written statement, wherein the width of RSA No.4261 of 2008 12 the land is shown 17'5”. It is further contended by the learned counsel for the appellant, that the plaintiffs had not been able to show any enforceable right which could give locus standi to the plaintiffs/respondents to maintain the suit. The judgment and decree passed by the learned lower appellate court reversing the judgment and decree of the learned trial court, on the face of it, is perverse, which deserves to be set aside. Mr.P.K.Mutneja, learned counsel appearing on behalf of the respondents, on the other hand, has controverted the stand taken by the learned counsel for the appellant by contending that the contention of learned counsel for the appellant, is based on misreading of provisions of Section 193 of the Act. The contention of the learned counsel for the plaintiffs/respondents was that vesting of right has been considered by Hon'ble Supreme Court in the case of The Fruit & Vegetable Merchants Union Vs. The Delhi Improvement Trust AIR 1957 SC 344, wherein word “vesting” was interpreted to mean as under:- “ The word “vest” has not got a fixed connotation, meaning in all cases that the property is owned by the person or the authority in whom it vests. It may vest in title, or it may vest in possession, or it may vest in a limited sense, as indicated in the context in which it may have been used in a particular piece of legislation. The provisions of the U.P.Town Improvement Act, particularly Ss. 45 to 49 and 54 and 54-A when they speak of a certain building or street or square or other land vesting in RSA No.4261 of 2008 13 a municipality or other local body or in a trust, do not necessarily mean that ownership has passed to any of them. The vesting of property in the Trust is only for the purpose of executing any improvement scheme which it has undertaken and not with a view to clothing it with complete title. That the word “vest” is a word of variable import is shown by provisions of Indian statutes. For example, under S. 56 of the Provincial Insolvency Act ( 5 of 1920), the property vests in the receiver for the purpose of administering the estate of the insolvent for the payment of his debts after realizing his assets. The property of the insolvent vests in the receiver not for all purposes but for the purposes of the Insolvency Act and the receiver has no interest of his own in the property. On the other hand, Ss. 16 and 17 of the Land Acquisition Act (Act No.1 of 1894), provide that the property so acquired upon the happening of certain events, shall vest absolutely in the Government free from all encumbrances”. In the cases contemplated by Ss. 16 and 17 the property becomes the property of Government without any conditions or limitations either as to title or possession. The legislature has made it clear that the vesting of the property is not for any limited purpose or limited duration. (1862) 6 LT 75; (1866) 2 CP 104: (1878) 4 QBD 104 (1895) 2 Ch 666 and (1903) 1 Ch 437.” RSA No.4261 of 2008 14 Learned counsel for the respondents also referred to the definition of “street” given in the Haryana Municipal Corporation Act, 1994. Sections 2 (44) and 2 (55), which read as under:- “(44) “public street” means any street which vests in the Corporation or which under the provisions of this Act becomes, or is declared to be a public street; (55) “street” means any road, footway, square, Court, alley, gully or passage, accessible, whether permanently or temporarily to the public and whether a thoroughfare or not, and shall include every vacant space, notwithstanding that it may be private property and partly or wholly obstructed by any gate, post, chain or other barrier, if houses, shops or other buildings abut thereon, and if it is used by any persons as means of access to or from any public place or thoroughfare, whether such person be occupiers of such buildings or not, but shall include any part of such space which the occupier of any such building has right at all hours to prevent all other persons from using as aforesaid and shall include also the drains or gutters therein, or on either side and the land, whether covered or not by any pavement, verandah or other erection, up to the boundary of any abutting property not accessible to the public;” Learned counsel for the respondents contended that the street would include the drain and therefore, the rights of the Municipal RSA No.4261 of 2008 15 Corporation would be regulated to use the drain or bank of drain and for the purpose of permissible use only, which does not give any authority to the Municipal Corporation to convert it to plots/shops. Support for this contention, was sought from the judgment of Hon'ble Supreme Court in the case of The Municipality of Taloda Vs. The Charity Commissioner, Bombay and Ors. AIR 1968 SC 418, wherein Hon'ble Supreme Court has been pleased to lay down as under:- “5. The High Court has held that the Municipality held at all material times the property as a trustee of a public trust. This finding is challenged before us by the Municipality. The first question which falls to be considered is whether the Municipality holds the property or any part thereof as a trustee. Dagadu Khushal claiming to be the owner of the property by purchase from Charandas transferred it to the Municipality for public purpose i.e. to be utilised for giving shelter to "Sadhus, saints and religious mendicants" in the same manner in which it had been utilised upto the date of transfer. We will assume that Dagadu Khushal could have, when he was the owner, stopped the user of the property for the benefit of "Sadhus, saints and religious mendicants". But after the transfer of the property was accepted by the Municipality for the purposes mentioned in the deed, it was not open to the Municipality to divert the use of that property for its own purposes. Counsel for the Municipality RSA No.4261 of 2008 16 urged that the Municipality is in a sense a trustee for the residents of the town of Taloda in respect of all the property vested in it by operation of the Act constituting it, and upon that trust another trust which restricts the use of the property for the benefit of. A limited class of persons cannot be super-imposed. He Municipality was governed by Act VI of 1873 at the date of the settlement. Section 17 of that Act provided: "All property of the nature, hereinafter specified shall be vested in and belong to the Municipality, and shall, together with all other property, of what nature or kind soever, which may become vested in the Municipality, be under their direction, management, and control, and shall be held and applied by them as trustees for the purposes of this Act; that is to say: (a) All public town walls gates, markets, slaughterhouses, manure and night soil depots and-public buildings of every description not specially reserved by Government. (b) All public streams, tanks, reservoirs, cisterns, wells, springs aqueducts, conduits, tunnels, pipes, pumps, and other water-works, and all bridges buildings, engines, works, materials, and things connected therewith or appertaining thereto, and also any adjacent land (not RSA No.4261 of 2008 17 being private property) appertaining to any public tank or well. (c) All public sewers and drains, and all sewers, drains, tunnels, culverts, gutters and watercourses in, alongside, or under any street, and all works materials and things appertaining thereto, as also all dust, dirt, dung ashes, refuse, animal matter or filth, or rubbish of any kind collected by the Municipality from the streets, houses, privies, sewers, cesspools, or elsewhere. (d) All public lamps, lamp posts, and apparatus connected therewith, or appertaining thereto. (e) All land transferred to them by Government, or by gift, or otherwise for local public purposes. (f) All public streets, and spaces, and the pavements, stones, and other materials thereof, and also all trees, erections, materials, implements, and things provided for such streets and spaces." Property belonging to a Municipality governed by the Act must undoubtedly be held under its direction, management and control and must be applied by it as a trustee, subject to the provisions and for the purposes of the, Act. But there is nothing in the Act or in the general law which prevents a Municipality from accepting a trust in favour of a section of the general public in respect of property transferred to it, or RSA No.4261 of 2008 18 authorises the Municipality after accepting a trust to utilise it for its own purposes in breach of the trust.” Reliance was also placed by the learned counsel for the respondents on the judgment of Hon'ble Supreme Court in the case of The Municipal Board, Manglaur Vs. Mahadeoji Maharaj AIR 1965 SC 1147. This judgment was relied upon by the learned lower appellate court to decree the suit filed by