M/S. Sepal Hotel Pvt. Ltd vs State Of Punjab & Anr

3. Coming to the facts of the present case, Shri Som Chand Katia and Shri Vijay Katia were original owners of land measuring 44 bighas 6 biswas comprised in Khasra No. 2001 situated at Bhatinda. Out of the said land a part comprising of 255 fts x 450 fts was licensed to the appellant for construction of a 3 Star Hotel on 15.7.1974. The appellant applied for grant of layout plan for the construction of a hotel, which was granted by the Municipal Committee. After the receipt of the layout plan the appellant herein constructed the hotel on the said land. Since then the hotel has been in existence and running its business therefrom. The total area of the hotel was covered by a boundary wall and is in possession of the appellant herein.

4. The Municipal Committee framed a new Scheme i.e Town Planning Scheme No. 2, Part I, in the year 1975. This Scheme was sanctioned by the State Government. As per the said Scheme, a part of the land covered by the Appellant's hotel was required for the construction/widening of the road. The Municipal Committee issued a notice dated 7.6.1978 to the appellant herein directing the appellant to demolish the boundary wall of the hotel and transfer that part of the land to the Municipal Committee. Apprehending an action at the behest of the Municipal Committee, the appellant filed a suit for grant of injunction against execution of the aforesaid notice. The Counsel for the Committee appeared and gave an undertaking not to demolish the boundary wall and based on this statement the said suit was withdrawn on 5.12.1979. However, the Municipal Committee again threatened to demolish the boundary wall, thereby impelling the appellant to file another suit, being No. 386 dated 18.12.1979. This suit was decreed on 11.12.1981 with an observation that Town Planning Scheme qua the appellant having not finalised, therefore, the land belonging to the appellant could not vest in the Municipal Committee.

5. At the same time, the appellant also challenged the vires of Section 192 (1) (c) of the Municipal Act by way of a Writ Petition No. 226 of 1979. The said Writ Petition was disposed of by a Division Bench of Punjab and Haryana High Court on 16.1.1980 alongwith other connected matters whereby it directed the Committee to consider the objections of affected landowners under the provisions of Section 192 (1) (c) of the Act which would be filed within 12 weeks before the Committee and the Committee would then proceed to consider the said objection and dispose them of within three months. Thereafter, it could make a recommendation to the Government in accordance with provisions of Section 192 of the Act. It was made clear that till the objections are decided, the rights of the landowners would not be affected. However, it was stated that if the objections were rejected the provisions of Scheme shall become final and shall be forwarded to the State Government for amending the Scheme in accordance with law.

6. As per the directions, the appellant filed its objections before the Municipal Committee, stating therein that as per the measurement at the spot, the road which starts from 40 feet wide Namdev Road and proposes to connect 30 feet wide road at the end of the hotel boundary and which passes through Khasra No. 2001 is at a distance of 275 feet but was wrongly shown in the Scheme at 224 feet. So, it was requested that the said discrepancy in the Scheme be corrected so that there is no dispute. The above objections of the appellant were considered by the Municipal Committee and a Resolution No. 306 dated 9.7.1980 was passed. The relevant portion concerning the objections of the petitioner in Item No. 11 is as under:

9. The appellant filed another Civil Suit bearing no. 641/ 1983 against the Municipal Committee for permanent injunction not to demolish four rooms, which are in the premises of the hotel itself. However, the said suit was dismissed and the appellant herein filed an appeal before the learned District Judge, Bhatinda, which was withdrawn upon the statements of the Counsel for the parties. It was agreed that demarcation of the disputed rooms be made in the presence of the parties to verify as to whether the same are part of the street or not. The demarcation of the disputed rooms was to be made in the presence of the parties. Municipal Committee was restrained to demolish the rooms till demarcation is completed.

11. However, the matter did not rest there. The appellant received notice dated 9.9.2003 from the successor of the Municipal Corporation- Respondent No. 2, directing the appellant to leave the street within 10 days in terms of the same Town Planning Scheme No. 2, Part I, framed in the year 1977. The appellant sent reply dated 16.9.2003 which was followed by another reply dated 27.9.2003. It is the case of the appellant that without considering these replies, Respondent No. 2 issued notice dated 9.10.2004 to the appellant under Sections 246 and 246A of the Act seeking to leave 30 feet street as per the Town Planning Scheme No. 2, Part I, on or before 13.10.2003. The appellant replied to that notice on 13.10.2004 alleging that the proposed action was illegal and amounted to the abuse of powers. Immediately thereafter the appellant also filed the Writ Petition No. 16377 of 2004 on 13.10.2004 in the High Court seeking quashing of the said notice dated 9.10.2004 and that the Town Planning Scheme No. 2, Part I be declared as lapsed due to non-implementation. As per the appellant, this planning Scheme was not implemented even after 30 years of framing and had, therefore, lapsed. However, the appellant withdrew this writ petition on 30.11.2004 with liberty to file fresh petitions. Fresh petition No. 19790 of 2004 was filed on 15.12.2004 challenging the said notice dated 9.5.2004. This Writ Petition has been dismissed by the High Court vide judgment dated 2.5.2006. That judgment is impugned by filing Special Leave Petition under Article 136, out of which present appeal arises.

13. The High Court further noted that in order to dispose of objections filed by various individuals, matter was put up before the Municipal Committee on 9.7.1980. Many objections were disposed of including Objection Nos. 10 and 11 which were filed by the Managing Director of the appellant and the appellant respectively. In so far as objections of the appellant are concerned, it was ordered that to ascertain length of road left in the Scheme, measurement be done at the spot. Therefore, the only dispute which remained was with respect to measurement of the property at the spot. As such the appellant was not right in contending that its objections were not disposed of and were still pending. The High Court also went through the record and discussed the same. On that basis, the High Court has further observed that some demarcation was got done by the appellant from the Revenue Department on the basis of aks – Shajra. In that report, it was observed that there is no street in Khasra No. 2001, in which Hotel of the appellant is situated. However, the High Court chose to discard that Report got prepared by the appellant, giving following reasons “The appellant is now placing reliance upon the said demarcation report to say that there existed no street which, as per allegation of respondent no. 2 has been encroached by the appellant. No benefit of that report can be extended to appellant, as the demarcation was not done keeping in view the Town Planning Scheme. Report seems to have been made on wrong facts. Admittedly in revenue record, the street is not in existence as the same has been carved out only in the approved Scheme, which is under challenge. Thereafter, when notice was sent to the petitioner to remove encroachment from the street, he again tried to delay the matter and subsequent thereto, filed the present writ petition”.

25. It is further submitted that since in spite of the aforesaid orders, the Municipal Committee was seeking to pursue the action under the Scheme without deciding the objections, another Suit No. 64 of 23.12.1983 was filed by the appellant herein. After the suit had been dismissed, the appellate court passed a consent order dated 20.5.1986 wherein it was agreed that the appeal will be dismissed as withdrawn and an application for demarcation will be submitted within a month. The Municipal Committee agreed that demarcation shall be made in the presence of the parties and they will not demolish the disputed rooms till the demarcation was done. The appeal was dismissed as withdrawn in view of the said statement.

vi. That the aforesaid facts are further reinforced for a consideration of the agenda item dated 27.12.1995, pursuant to the judgment of this court. A perusal of the resolution makes it clear that the Municipal Committee had “decided that the Schemes which are pending are hereby dropped by the Municipal Council, Bathinda and the office is directed to act accordingly.” Thus, all pending Schemes stand dropped as per the aforesaid resolution.