Municipal
Corporation, Ludhiana & Another Vs. Balinder Bachan
Singh & Others [2004] Insc 336 (28 April 2004)
R.C.
Lahoti & Ashok Bhan.
WITH CIVIL
APPEAL NO. 15341 OF 1996 BHAN,J.
These
appeals are directed against the judgment and order of the High Court of Punjab
and Haryana at Chandigarh dated 11th July, 1996 passed in R.S.A. No. 2315 of
1988 whereby the High Court has upheld the judgment of reversal of the
Additional District & Sessions Judge thereby decreeing the suit filed by
the plaintiffs-respondents Nos. 1 & 2 (hereinafter referred to as the
'respondents').
Civil
Appeal No. 15340 of 1996 has been filed by the Municipal Corporation, Ludhiana and Civil Appeal No. 15341 of 1996
has been filed by the inhabitants of the area of the suit land. The facts are
taken from Civil Appeal No. 15340 of 1996.
Municipal
Corporation, Ludhiana, (hereinafter referred to as the 'appellant'), notified a
Town Planning Scheme Area No.6 Part-IIIA, known as Sampuran Colony, Model Gram,
Ludhiana, duly framed under Section 192(2) of the Punjab Municipal Act, 1911
(for short 'the Act').
Sampuran
Singh is the father of Respondent Nos. 1 (D) through Lrs. and 2 and husband of Smt.
Rajinder Kaur. In the Scheme, the land
of Smt. Rajinder Kaur, (since deceased) respondent No.3
and mother of the respondents was also included. Notice was published in the
newspapers inviting objections to the proposed scheme. Shrimati Rajinder Kaur
raised certain objections in which she wanted certain changes and adjustments
to be made in the scheme. Executive Officer of the appellant vide letter dated
29th June, 1968 called upon Smt. Rajinder Kaur to come to his office on 5th
July, 1968 for considerations of the objections filed by her. Taking into
consideration the objections filed and having heard the objector the Scheme was
approved with certain modifications. She had agreed to leave 25 per cent of the
land for common purposes such as roads and parks. She gave her own design for
earmarking plots and shopping area. The Local Government Department, Punjab in exercise of its power under
Section 192 of the Act accorded sanction to the Town Planning Scheme approved
and submitted by the Municipal Corporation. After the Scheme was duly notified
by the Government, the public land along with other land was developed by the
appellant as per Scheme. Roads were carved out, sewage as well as water
facilities were installed and the suit land i.e. 3 kanals 16 marlas which was
to form a green park was also developed. The dispute in these appeals pertain
to land measuring 3 kanals 16 marlas which was reserved under the Scheme as
open space to develop a park to provide lung space to the inhabitants of the
locality.
In the
year 1976, when the Scheme had attained finality and steps in pursuance thereto
had been completed, plaintiffs-respondents Nos. 1 & 2 who are none other
than the sons of the Smt. Rajinder Kaur instituted the present suit claiming
themselves to be in possession of the suit land measuring 3 kanals 16 marlas
and alleging that the appellants were bent upon taking forcible possession of
the suit land, filed the suit for perpetual injunction restraining the
appellants from taking forcible possession of the same.
Appellants
filed their written statement stating that the suit land had already been
developed as a park as per the Town Planning Scheme and was being used as such
by the inhabitants of the locality. It was asserted that before developing the
area, statement of ownership was prepared according to which Rajinder Kaur,
respondent No.3 was recorded as owner of the suit land. The cultivating
possession of the plaintiffs over the suit land was denied. It was alleged that
the Town Planning Scheme of the area was notified and the
plaintiffs-respondents did not raise any objection and after the sanction of the
Town Planning Scheme possession was taken by the Corporation of the common
areas for development as per scheme. Roads and park were developed as per
scheme which were being used as such by the inhabitants. On the pleadings of
the parties the trial court framed the following issues:
"1.
Whether the plaintiff is entitled to the injunction as prayed for? OPP.
2.
Whether the suit has become infurctuous as alleged? OPD.
3.
Relief."
After
taking into consideration the evidence produced by the parties, the trial Court
concluded that the suit land was left as a park in the Scheme which was duly
developed and was being used as such by the inhabitants of the locality. It was
held that the respondents were not in possession of the suit land. Accordingly,
the suit filed by the plaintiffs-respondents was dismissed.
Aggrieved
against the order of the trial court, respondents filed an appeal which came up
for hearing before the Additional District & Sessions Judge, Ludhiana, and was accepted. It was held that
the respondents were owners in possession of the suit land and, therefore, they
were entitled to the injunction, prayed for.
Aggrieved
against the aforesaid order, the Municipal Corporation filed an appeal in the
High Court being Regular Second Appeal No. 2315 of 1988. The inhabitants of the
locality, who are the appellants in Civil Appeal No. 15341 of 1996, filed an
application under Order 1 Rule 10 seeking impleadment which was rejected.
Learned Single Judge affirmed the finding of the first appellate court. It was
held that the finding recorded by the first appellate court regarding
possession was a finding of fact which could not be interfered with in the
second appeal. One of the reasons which persuaded the learned Single Judge to
come to this conclusion was that the sanctioned scheme and the site plan
attached to the sanctioned scheme were not brought on record.
Aggrieved
against the aforesaid order of the learned Single Judge, the present appeals
have been filed.
Plaintiffs-respondents
produced six witnesses including Shri H.L. Sethi, PW2 who was appointed as
Local Commissioner to inspect the premises. He inspected the premises and
reported that there is no park in the property in dispute . Other five
witnesses i.e. PW1 and PW3 to PW6 supported the allegations made by the
plaintiffs-respondents. In rebuttal the appellant also produced six witnesses
and documents D1 to D38 showing that the town planning scheme was prepared at
the behest of Rajinder Kaur, mother of the plaintiffs-respondents and was
developed as per scheme, but, the sanctioned scheme or its site plan were not
brought on record.
This
Court on 18th November,
2003 being of the
opinion that the controversy could not be effectively adjudicated without the
scheme, directed the learned counsel for the appellants to make available the
original records containing the scheme for the perusal of the Court. In the
interest of justice and for an effective decision of the case, the Court also
directed the Deputy Commissioner, Ludhiana to carry out an inspection of the
land covered by the Scheme known as Sampuran Colony, Model Gram, Ludhiana,
{Planning Scheme Area No.6 Part-IIIA} and submit a report as to the status of
occupancy of the plots carved out in the sanctioned scheme and also the status
of land admeasuring 3.16 Kanals left in the scheme as open space.
In
compliance with the above-said directions of this Court, the Deputy
Commissioner personally went to the spot and inspected the same on 31st
December, 2003 in the presence of the appellant-corporation, represented by Shri
Harjinder Singh, PCS, Joint Commissioner, Municipal Corporation, Ludhiana and Shri
P.K. Garg, Municipal Town Planner, Ludhiana and respondents represented through
S/Shri Jatinder Bachan Singh Grewal and Satinder Sampuran Singh Grewal. Apart
from these Shri Kuldip Singh, PCS, Sub Divisional Magistrate, Ludhiana (West), Shri
Harnek Singh, Divisional Town Planner, Ludhiana, Shri Ajay Kumar, Tehsildar Ludhiana
(West) and some other prominent persons of the area were also present at the
time of the inspection. Deputy Commissioner sent his report to this Court vide
communication No. 470/DCR dated 9.1.2004. He attached a plan of the Sampuran
Colony along with his report. In all there are 39 plots. Except three plots
which are vacant, construction has been put up on all other plots.
As per
report and the attached plan the suit land is an open space lying in the centre
of the scheme without any sort of structure on it. Few photographs showing that
the suit land was vacant were also attached. A copy of the report was supplied
to the learned counsel for both the parties. Learned counsel for the
respondents filed his objection to the report.
Learned
counsel for the parties have been heard at length.
We
have perused the oral testimony of the witnesses produced by the respective
parties. We have also perused the scheme which was finally approved by the
State of Punjab under Section 192 of the Act as well as the other attending
documents {Ex. D-1 to D-38} pertaining to the submission of the scheme, objections
filed by Rajinder Kaur and her statement agreeing to leave 25 per cent of the
area for common purposes. We have also seen the plan which was prepared at the
time of the approval of the scheme as well as the report of the Deputy
Commissioner along with the site plan attached with it.
The
Municipal Corporation, as noted earlier, had notified the Town Planning Scheme
duly framed under Section 192(2) of the Act. To the said scheme Rajinder Kaur,
mother of the plaintiffs-respondents No.s 1 & 2 filed her objections. She
had appeared personally before the Building Superintendent, Municipal
Corporation on 5th
July, 1968. She
projected herself to be the owner of the land. The objections filed by her were
partly accepted and the scheme was modified as per her desire. She had agreed
to leave 25 per cent of the land for certain common purposes like roads and
park etc.. After due consideration the Local Government Department, Punjab approved the town planning scheme
and accorded sanctioned to it under Section 192 of the Act. The scheme was
notified. Public land along with other land was developed as per scheme. Roads
were carved out, sewage as well as other facilities were installed and the suit
land was left as a park for the use of the inhabitants of that colony. After
the scheme had attained finality in the year 1976, the present suit was filed
by the sons of Rajinder Kaur stating that Rajinder Kaur had no interest or
right in the property and they were the owners in possession of the land
measuring 3 kanals 16 marlas and sought for perpetual injunction restraining
the appellant from taking forcible possession.
Under
Section 192 of the Act the Municipal Corporation is entitled to draw up a
building scheme for the built area and the town planning scheme for un-built
area which may among other things provide for the restriction of the erection
or re-erection of buildings, the prescription of a building line on either side
or both sides of any street existing or proposed, and the amount of land in
such unbuilt area which is to be utilised for public purposes including the use
as public streets.
For
every locality green spaces and green belts have to be provided to provide lung
space to the residents of the locality. A provision for green park was made by
the Municipal Corporation keeping in view the minimum requirement to provide
open/green space to the residents of the locality.
Rajinder
Kaur. mother of the plaintiffs-respondents herself had submitted a lay out plan
which comprised the present suit land. She had herself agreed to leave 25 per
cent of the area under the scheme to be used by the inhabitants of the locality
for common purposes including the open space area which is in dispute. The
documentary evidence which has come on record in the form of the original
scheme as well as the documents D1 to D38 and the report submitted by the
Deputy Commissioner conclusively shows that the suit land measuring 3.16 kanals
was left in the scheme to be used as open space for the use of the residents of
the locality.
Map attached
with the report of the Deputy Commissioner and the site plan attached with the
scheme completely tally with each other. In the scheme 3.16 kanals of land was
left as open space in the centre surrounded by houses on three sides. The
photographs produced also show that the land is lying vacant and is being used
by the inhabitants for common purposes. It may be noted that the plots carved
out in the scheme were sold by Rajinder Kaur as well as her sons including the
plaintiffs-respondents. Rajinder Kaur and plaintiffs/respondents could not have
sold the land without getting the scheme sanctioned as plots. It is well-known
and judicial notice can be taken of the fact that residential plots sell at a
much higher price than the agricultural land. To sell the land as plots, a part
of the land has to be left to provide for common purposes such as roads,
community centre, schools and parks. Having taken advantage of selling the
plots in a developed colony and charging a higher price, which were purchased
by the inhabitants with the understanding that civic amenities including the
park were well provided for, the plaintiffs/respondents cannot be permitted to
turn around to claim the land left in the scheme for being used as a park as
their personal property.
In view
of the documentary evidence, reliance cannot be placed upon the oral testimony
of the witnesses who were produced by the plaintiffs- respondents. In our
considered view, the land measuring 3.16 kanals was left in the scheme for the
use of the residents of the locality. Contentions raised by the learned counsel
for the plaintiffs-respondents that the suit land did not form part of the town
planning scheme or the land continued to be owned by the plaintiffs-respondents
and that they were in exclusive possession there of cannot be accepted.
For
the reasons stated above, the appeals are allowed. The judgment and order of
the learned Single Judge of the High Court and that of the first appellate
Court are set aside. The order of the trial court is restored and the suit
filed by the plaintiffs-respondents is dismissed with costs throughout.
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