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Friday, April 25, 2014

Encroachment of the street - Hotel constructed in a private place - Town planing scheme to widen roads - notice issued - disputes arose - as per the High court directions objections were heard and rejected - Apex court held that we modify the order of the High Court to the extent that there shall be fresh demarcation done at the site through Patwari. On the basis of said demarcation, if it is found that in the revenue record 30 feet road exists, that area will be clearly demarcated and delineated, and thereafter the Scheme would be implemented. The aforesaid exercise shall be carried out within a period of two months from today. The appellant shall be associated in the exercise of demarcation. Once this demarcation, is done the parties shall abide by the same. Appeal disposed of in the aforesaid terms.= M/s. Sepal Hotel Pvt. Ltd. …. Appellant (s) Versus State of Punjab & Anr. …. Respondent (s) = 2014 ( April.Part ) judis.nic.in/supremecourt/filename=41443

Encroachment of the street - Hotel constructed in a private place - Town planing scheme to widen roads - notice issued - disputes arose - as per the High court directions objections were heard and rejected - Apex court held that we modify the order of the  High  Court  to the extent that there shall be  fresh  demarcation  done  at  the  site through Patwari. On the basis of said demarcation, if it is found  that in the revenue record 30 feet road exists, that area  will  be  clearly demarcated  and  delineated,  and  thereafter  the  Scheme   would   be implemented. The aforesaid exercise  shall  be  carried  out  within  a period of two months from today. The appellant shall be  associated  in the exercise of demarcation. Once this demarcation, is done the parties shall abide by the same. Appeal disposed of in the aforesaid terms.=
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.
Disputes arose =
whether  the  Scheme  had
     attained finality and answer to  this  question  depends  upon  another
     issue viz. whether objections of  the  appellant  to  the  Scheme  were
     disposed of by Respondent No. 2 or not, in compliance  with  directions
     dated 19.6.1980 of the High Court.=
Conclusion 
From the  aforesaid,  we  cannot  agree  with  the  contention  of  the
     appellant that objections of the appellant were still pending.  At  the
     same time it becomes clear that the only issue which remained was about
     the demarcation and demarcation was also carried out  and  the  Patwari
     submitted his Report dated 19.8.1986.
 34. Having said so, what we  find  is  that  this  demarcation  report  has
     altered the position. As per the demarcation Report of the Patwari,  30
     feet road as set out in the Town Planning Scheme does not exist in  the
     revenue record. Once that be the position,  how  the  Scheme  would  be
     implemented is  the  poser.  The  High  Court  has  remarked  that  the
     appellant managed to get a wrong Report. At the same time, what is  the
     correct position at the  site  has  also  not  come  on  record.  In  a
     situation like this, we are of the opinion that  once  the  High  Court
     observed that there was  an  error  in  the  demarcation  Report,  more
     appropriate action was to order fresh demarcation.
 35. In view of the above though  we  reject  all  the  contentions  of  the
     appellant, at the same time we modify the order of the  High  Court  to
     the extent that there shall be  fresh  demarcation  done  at  the  site
     through Patwari. On the basis of said demarcation, if it is found  that
     in the revenue record 30 feet road exists, that area  will  be  clearly
     demarcated  and  delineated,  and  thereafter  the  Scheme   would   be
     implemented. The aforesaid exercise  shall  be  carried  out  within  a
     period of two months from today. The appellant shall be  associated  in
     the exercise of demarcation. Once this demarcation, is done the parties
     shall abide by the same.
 36. Appeal disposed of in the aforesaid terms.

2014 ( April.Part ) judis.nic.in/supremecourt/filename=41443
SURINDER SINGH NIJJAR, A.K. SIKRI
                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION
                         CIVIL APPEAL NO. 4678/ 2014
      [Arising out of Special Leave Petition (Civil) No. 12025 of 2006]

     M/s. Sepal Hotel Pvt. Ltd.                         …. Appellant (s)
                                   Versus
     State of Punjab & Anr.                             …. Respondent (s)


                               J U D G M E N T
     A.K. SIKRI, J.
  1. Leave granted.
  2. The origin of the  lis  in  this  appeal  can  be  treated  to  earlier
     proceedings which started sometime in  1970's  and  culminated  in  the
     judgment of  this  Court  in  the  case  of  Yogender  Pal  &  Ors.  v.
     Municipality, Bhatinda reported in 1994 (5) SCC 709.  We  would  revert
     back to the said case  with  detailed  discussion  at  the  appropriate
     stage, Suffice it is to  mention  at  the  stage  that  vide  the  said
     judgment this  Court  declared  Section  192  (1)  (c)  of  the  Punjab
     Municipal Act {This provision conforms to Section 203 (1)  (c)  of  the
     Haryana Municipal Act} as void, being violative of Article  14  of  the
     Constitution of India. However, overruling of the  said  provision  was
     prospective i.e. from the date of the decision rendered on 15.7.1994.
  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:
           “Item No. 11:
           Vide this objection, the objector had stated  that  for  joining
           the 30 feet and 40 feet wide road, the length of  the  road  has
           been shown as per the Scheme as 224 feet whereas at the spot the
           length is 275 feet. Therefore, it was decided that the  plan  of
           the Sepal Hotel, which has  been  sanctioned  by  the  Municipal
           Committee be checked at the site and after inspecting  the  site
           as per the objections raised by the objector, the survey plan of
           the one part be corrected. The aforesaid resolution  was  signed
           by Shri Gopal Singh, President,  Municpal  Committee,  Bathinda,
           Mukhtiar Singh, Divisional Town Planner, Bathinda and Shri  L.D.
           Gupta, Executive Officer, Municipal Committee, Bathinda.




  7. As per the appellant, after  passing  of  the  above  Resolution  dated
     9.7.1980, no further action was taken by  the  Municipal  Committee  to
     amend the Scheme nor any communication was received  by  the  appellant
     conveying its decision by the Municipal Committee with  regard  to  the
     objections.
  8. In the meantime, the suit bearing  no.  386  of  1979  was  decreed  on
     11.12.1981, wherein it was observed by  the  learned  Senior  Sub-Judge
     that the Town Planning Scheme qua the appellant had  not  become  final
     and, therefore, the subject land cannot vest in the Municipal Committee
     and the disputed land on which construction exists cannot  be  said  to
     belong to the Municipal Committee.
  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.
 10. Pursuant to the above order, Shri Hem Raj, Patwari, Halqua carried  out
     the demarcation of the disputed rooms and submitted  his  report  dated
     19.8.1986 to the Tehsildar on the basis of which an  order  was  passed
     wherein it was held that there exists no passage or roads in Khasra No.
     2001 in the revenue report. In the meantime, the provisions of  Section
     192 (1) (c) of the Act were interpreted by this Court in  the  case  of
     Yogendra Pal (supra) in which Section 192 (1) (c) providing vesting  of
     land  in  the  Municipal  Committee  was  declared  ultra  vires   and,
     therefore, these provisions were struck down w.e.f. the  judgment  i.e.
     15.7.1994.
 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.
 12. As pointed out above main contention of the appellant before  the  High
     Court was that as the Scheme was not implemented for the last more than
     30 years and objections filed by the appellant had  not  been  decided,
     the said Scheme had lapsed and Respondent No. 2  had  no  authority  to
     implement the same. This contention has not found favour with the  High
     Court. The High Court took note of the  fact  that  the  appellant  had
     earlier filed Civil Writ No. 226 of 1979 in the said court  challenging
     that very Scheme. That writ petition along with many other similar writ
     petitions, were disposed of holding that the Scheme under challenge was
     rightly promulgated after passing an appropriate Resolution. Matter was
     remitted to  Respondent No. 2 to decide objections, if any filed by the
     appellant and others similarly situated persons, with  clear  direction
     that in case the objections are rejected, the provision of  the  Scheme
     shall become final.
 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”.


 14. On the basis of these facts as recorded by the High Court, it  came  to
     the conclusion that the challenge to the Scheme had  attained  finality
     and  the  objections  were  also  considered  and  taken   to   logical
     conclusion. Nothing remained thereafter and it could not be  said  that
     the Scheme had not become final  and  cannot  be  implemented  now.  To
     recapitulate in brief,  the  High  Court  has  in  the  impugned  order
     recorded that:
           i.    The demarcation report seems to be made on wrong facts and
           that in the revenue record there was no street.


           ii.   It was further wrongly  recorded  that  the  earlier  writ
           petition had been dismissed by the High Court on 16.1.1980.
           iii.  With regard to the appellate order dated 20.5.1986, it was
           held that pursuant to the said order, the Managing  Director  of
           the Petitioner  “managed  to  get  a  wrong  report”,  i.e.  the
           demarcation report dated 19.8.1986.
           iv.   Finally, the High Court held that the Scheme had  attained
           finality in view of the judgment of  the  Civil  Court  and  the
           appeal had been dismissed as withdrawn and,  therefore,  it  was
           not open to the appellant to say that the Scheme had not  become
           final and could not be implemented after a period of 30 years.
    These are the reasons given by the High Court for dismissing  the  writ
    petition.
 15. Before we proceed to record the submissions of the  counsel  on  either
     side, we would like to point out the  ratio  of  Yogender  Pal  (supra)
     mention to which has been made in the beginning. As pointed  out  above
     that was a case where the vires of Section 192 (1) (c)  of  the  Punjab
     Municipal Act were  challenged  as  violative  of  Article  14  of  the
     Constitution of India and  the  appellants  therein  succeed  in  their
     challenge. Aforesaid provision was held to be unconstitutional as under
     this provision, to implement a Scheme land of the  landowner  could  be
     taken away without even paying any compensation. At the same  time,  it
     is  noteworthy  that  the  overruling  of  this  provision   was   made
     prospective i.e. from the date of the decision rendered on 15.7.1994.
 16. It was noticed in para 29 that various lands had been acquired for Town
     Planing  Schemes  and  “in  many  cases  the  Schemes  have  also  been
     completed.” In view of the said fact, it was held that it would not  be
     in public interest to unsettle the settled state of affairs as it would
     create a total chaos. The court was, therefore,  mindful  of  the  fact
     that there would be cases where the Schemes had  been  implemented  and
     constructions etc. had already been carried out in terms of the Scheme.
     Those Schemes which were already carried out were, thus, protected.


 17. It is, in this scenario the moot question which falls for consideration
     is as to whether in the present case the Scheme in  question  had  been
     finalised or not.
 18. When the Scheme in the present case were framed in  the  year  1975  to
     implement the same,  the  Municipal  Committee  issued  notice  to  the
     appellant on 7.6.1978 for demolition of boundary wall of the hotel  and
     transfer the same to the Committee, which was required  for  the  road.
     The appellant challenged the same by filing the writ  petition  in  the
     High Court. In  fact  various  Town  Planning  Schemes  framed  by  the
     Municipal Committees of Amritsar and Bhatinda were the  subject  matter
     of challenge before the  High  Court  by  way  of  various  Civil  Writ
     Petitions. These were disposed of by a common order dated 16.1.1980. It
     was made clear that the provisions of the Scheme  in  so  far  as  they
     affect the rights of the writ petitioners, will  not  be  taken  to  be
     final and  the  said  provisions  will  only  become  final  after  the
     objections filed by the appellants are considered by the Committees and
     disposed of.
 19. Thus, a conjoint reading  of  the  judgment  in  Yogender  Pal  (Supra)
     decided by this Court as well as  judgment  dated  16.1.1980  by  which
     aforesaid writ petitions were decided by the High Court would  make  it
     clear that in those cases where the Scheme  had  been  finalised,  they
     remain protected and Respondent No. 2 shall have right to go ahead with
     the implementation of the said Scheme.
 20. It is the common case of the parties that the High Court had  permitted
     the appellants and others to file their objections and the  Scheme  was
     to become final only  after  the  objections  were  considered  by  the
     Committee and disposed of. However, whereas  Respondent No. 2 maintains
     that the objections of the appellants were disposed of/  rejected,  the
     appellant argues otherwise and it is pleaded that the  matter  remained
     in limbo without any decision on its objections.  The  outcome  of  the
     present appeal would depend upon this aspect.
 21. In his endeavour to demonstrate that no final decision was taken on the
     objections of the appellant Mr. Nidhesh Gupta, learned  Senior  Counsel
     for the appellant submitted that these objections  were  considered  on
     30.6.1980 and 8.7.1980. A perusal of the  proceedings  dated  30.6.1980
     makes it clear that it was decided “that verification be  done  at  the
     spot and in case there is any mistake in the plan of  the  Scheme,  the
     same be got rectified.” The objection  regarding  the  demarcation  was
     rejected by placing reliance on Section 192  of  the  Punjab  Municipal
     Act, 1911, which permitted land to  the  extent  of  25%  to  be  taken
     without payment of compensation and additional 10% to  be  taken  after
     payment of compensation.
 22. In the proceeding  dated  9.7.1980  the  claim  of  the  appellant  for
     compensation was noticed and the said objection was rejected.  However,
     it was also decided that the plan of Sepal Hotel as sanctioned  by  the
     Municipal Committee would be checked and  after  inspecting  the  spot,
     survey plan would  be  corrected  in  view  of  the  objection  of  the
     objector.
 23. In the meantime, Civil Suit No. 386 of  1979  filed  by  the  appellant
     herein was also decided. A perusal of the judgment dated 11.12.1981  in
     the suit makes it clear that the contention  of  the  counsel  for  the
     appellant herein that the objections had  to  be  considered,  was  not
     disputed by the counsel of the Municipal  Committee  and  “he  conceded
     that the Scheme framed by the Municipal Committee has  not  yet  become
     final.” It was also held that “it is obvious from copies of  resolution
     that the Municipal Committee is seized of the objections filed  by  the
     plaintiff.”
 24. As per Mr. Gupta, this makes it clear that even after  the  resolutions
     of 30.6.1980 and  8.7.1980,  the  objections  of  the  plaintiff  were,
     admittedly, yet to be decided and the Scheme had not yet become final.
 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.
 26. Thereafter, a demarcation was done on 19.8.1986. A perusal of the  same
     makes it clear that it was noticed therein that  there  was  no  street
     falling in the concerned Khasra number as per the revenue  record  and,
     therefore, the street could not be demarcated.
 27. Mr. Gupta, questioned the correctness of the finding  of  the  impugned
     order by making the following submissions:
           i.    The order dated 16.1.1980 categorically records  that  the
           provisions of the Scheme in so far as they affect the rights  of
           the petitioners will not be final and the provisions  will  only
           become final after the objections filed  by  the  appellant  are
           considered by the committee and disposed of.
           ii.   A perusal of the proceedings dated 30.6.1980 and  8.7.1980
           makes it clear  that  the  objections  were  still  pending  and
           demarcation etc. had still to be carried out.
           iii.  This fact stood admitted in  the  order  dated  11.12.1981
           wherein the counsel for the  Municipal  Committee  had  conceded
           that the Scheme framed had not yet become  final  and  that  the
           Municiapl Committee was seized of the objections.
           iv.   It is submitted that after the aforesaid  date,  the  only
           progress was the report dated 19.8.1986, as per which report the
           demarcation of the street could not be done since there  was  no
           street as per the revenue record. Assuming there was an error in
           the said demarcation, at best a  fresh  demarcation  could  have
           been ordered. In any event, it could not be said that the Scheme
           had been finalised, as recorded by the High Court.
           v.    A perusal of the order passed by the appellate court dated
           20.5.1986 also makes it absolutely clear that it was agreed that
           there  will  no  demolition  till  the  demarcation  was   done.
           Accordingly, without any demarcation having admittedly been done
           thereafter, there was no question of the  Scheme  having  become
           final.
           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.


 28. Per contra, Mr. Mahabir Singh, learned  Senior  Counsel  appearing  for
     Municipal Corporation, Bhatinda (Respondent No. 2) submitted  that  the
     judgment in the case of Yogender Pal had no applicability  as  the  law
     declared therein was made prospective by observing that it would not be
     in public interest to unsettle the settled state of  affairs.  It  was,
     thus, a case of prospective overruling. He further  submitted  that  as
     per the judgment dated 16.1.1980 of the High Court, the  provisions  of
     the Scheme were not to become final unless the objections filed by  the
     appellants are disposed of by the Committee. A fortiorari,  the  Scheme
     was to attain finality if the objections were to be rejected  and  that
     was specially observed by the High Court.  Countering  the  submissions
     that the objections had not been decided/ rejected  Mr.  Mahabir  Singh
     argued  that  these  objections  were  specifically  rejected  by   the
     Municipal Committee way back on 30.6.1980 and on 9.7.1980.  He  further
     submitted that this rejection was never challenged  by  the  appellant.
     Instead he preferred a civil suit for permanent injunction  which  was,
     however, dismissed on 4.11.1985. A reading of this order  would  reveal
     that the objections were duly considered by the Committee and the  same
     were dismissed. Even appeal was filed against this judgment and  decree
     of the trial court but the appellant withdrew the same and,  therefore,
     finding of the trial court that objections  were  rejected  had  become
     final. His further plea was that these are pure finding of facts  which
     have been arrived at against the  appellant  who  has  dragged  on  the
     matter for last 30 years after successfully encroaching upon  the  land
     which was duly carved under Town Planning Scheme for public street.  He
     further  submitted  that  the  appellant  had  suppressed   all   these
     proceedings including filing of Civil Writ No. 19812 of 1996 which  was
     subsequently withdrawn by him.
 29. We have given our anxious  thought  to  the  aforesaid  submissions  of
     learned Counsel for the parties. It is a common  case  of  the  parties
     that the judgment in Yogender Pal (Supra) is prospective i.e  from  the
     date of judgment which is 15.7.1994. It is also a common  case  of  the
     parties that the Scheme in question was framed much earlier.  Thus,  as
     pointed out above, the only issue is  as  to  whether  the  Scheme  had
     attained finality and answer to  this  question  depends  upon  another
     issue viz. whether objections of  the  appellant  to  the  Scheme  were
     disposed of by Respondent No. 2 or not, in compliance  with  directions
     dated 19.6.1980 of the High Court.
 30. It is borne from the record that these objections were duly  considered
     on 30.6.1980 and 8.7.1980. In the proceedings of  30.6.1980  objections
     of the appellant regarding demarcation were rejected. At the same  time
     it was decided that verification be done at the spot and in case  there
     is any mistake in the plan of the Scheme, the same be got rectified. It
     was so done.  Thereafter,  matter  came  up  before  the  Committee  on
     9.7.1980  and  after  considering  the  entire  matter  the   Committee
     specifically  rejected  the  objections  of  the  appellant.  Operative
     portion of the minutes of  the  meeting  dated  30.6.1980  as  well  as
     9.7.1980 are as under:
           “Minutes of the Meeting dated 30.6.1980:
           Shri Som Chand Katia, Writ Petitioner No. 226/79 is present.  He
           has stated that his total land  measuring  31550  sq.  yards  is
           covered under the Scheme and his land to the extent of  35%  has
           been taken under the Scheme and  some  of  his  land  thus  goes
           waste. The objector has been asked to get the demarcation of the
           total land at the spot and produce the plan  in  the  office  of
           Municipal Committee by 7.7.1980 and should  also  get  the  spot
           inspection of the land so that in spot inspection  it  could  be
           verified as to how much of his land falls under the  Scheme.  In
           case any area more than 25% of his total land  comes  under  the
           park/ road, the same may be adjusted. The  objector  has  stated
           that he is not ready to give any land for road or  park  without
           compensation. Thus objection of the objector is rejected because
           under Section 192 of the Punjab Municipal Act, 1911 land to  the
           extent of 25% without payment of compensation and an  additional
           10% with payment of compensation can be taken for the purpose or
           roads and parks under the proposed Town Planning Scheme.”


           Minutes of the Meeting dated 9.7.1980
           “As per decision dated 30.6.1980, the objector  Shri  Som  Chand
           Katia was required to get the measurement of  his  land  at  the
           spot. He  has  produced  a  photostat  copy  of  revenue  record
           relating to Khasra No. 2001 which has  been  attested  by  Halqa
           Patwari. As per the same, their total area in the  Scheme  comes
           to 44300 sq. yards. The plea of objector is that the Sepal Hotel
           whose area is 12750 sq. yards has different  out  of  the  total
           area and the land for roads  and  parks  be  taken  out  of  the
           remaining area as per law. But he should be  given  compensation
           of the same as well. On perusal of  record,  it  is  found  that
           sanction of building plan of Sepal Hotel has also been given  to
           them who were the original owners of total land. Therefore,  the
           Sepal Hotel had also been adjusted in the Scheme. Therefore, the
           Sepal Hotel had also been adjusted in the Scheme. Therefore,  it
           is decided that the plot of Sepal Hotel cannot be treated to  be
           different from the land belonging to the said family  under  the
           purposes of Scheme and in this way out of total ownership  land,
           the land under the road and parks does not form  more  than  25%
           which is as per law, therefore, this objection is rejected.
           Therefore, in this objection, the objector has written that  the
           length of road joining the 30' x 40' wide roads has  been  shown
           to be 224 under the Scheme whereas the sport the  same  is  275.
           therefore, it is  decided  that  plan  of  the  Sepal  Hotel  as
           sanctioned by Municipal Committee be checked  at  the  spot  and
           after inspecting the spot survey plan be got corrected  in  view
           of the above objection of objector.”


     31.    It is clear from the above  that  objections  were  specifically
     rejected. Only thing which the Municipal Committee wanted was to  check
     the plan of Sepal Hotel as sanctioned by the Municipal Committee at the
     spot and after inspecting the spot the survey plan be corrected. It  is
     also clear from the above  that  main  objection  was  for  payment  of
     compensation which was rejected on the ground that the land  under  the
     road and the parks does not form more than 25% and, therefore, in  view
     of Section 192 of the Act no compensation was payable.
 32. Learned Senior Counsel for the respondent is right  in  his  submission
     that these orders were not challenged.  Instead,  the  appellant  filed
     Civil Suit No. 614 of 1983. However, this suit  was  dismissed  by  the
     trial court. The appellant preferred appeal there against. This  appeal
     was dismissed as withdrawn. It was the contention of the appellant that
     this appeal was withdrawn in view  of  consent  order  dated  20.5.1986
     wherein it was agreed that  an  application  for  demarcation  will  be
     submitted within a month and demarcation shall be made in the  presence
     of the parties and till then respondent shall not demolish the disputed
     rooms. However, from this the appellant cannot be  allowed  to  contend
     that objections had not  been  decided.  The  at  the  most,  issue  of
     demarcation was to be settled as the appellant was raising  this  issue
     time and again. However, it is accepted by the  appellant  itself  that
     demarcation was done on 19.8.1986.
 33. From the  aforesaid,  we  cannot  agree  with  the  contention  of  the
     appellant that objections of the appellant were still pending.  At  the
     same time it becomes clear that the only issue which remained was about
     the demarcation and demarcation was also carried out  and  the  Patwari
     submitted his Report dated 19.8.1986.
 34. Having said so, what we  find  is  that  this  demarcation  report  has
     altered the position. As per the demarcation Report of the Patwari,  30
     feet road as set out in the Town Planning Scheme does not exist in  the
     revenue record. Once that be the position,  how  the  Scheme  would  be
     implemented is  the  poser.  The  High  Court  has  remarked  that  the
     appellant managed to get a wrong Report. At the same time, what is  the
     correct position at the  site  has  also  not  come  on  record.  In  a
     situation like this, we are of the opinion that  once  the  High  Court
     observed that there was  an  error  in  the  demarcation  Report,  more
     appropriate action was to order fresh demarcation.
 35. In view of the above though  we  reject  all  the  contentions  of  the
     appellant, at the same time we modify the order of the  High  Court  to
     the extent that there shall be  fresh  demarcation  done  at  the  site
     through Patwari. On the basis of said demarcation, if it is found  that
     in the revenue record 30 feet road exists, that area  will  be  clearly
     demarcated  and  delineated,  and  thereafter  the  Scheme   would   be
     implemented. The aforesaid exercise  shall  be  carried  out  within  a
     period of two months from today. The appellant shall be  associated  in
     the exercise of demarcation. Once this demarcation, is done the parties
     shall abide by the same.
 36. Appeal disposed of in the aforesaid terms.


                                             ...….........................J.
                                                     [Surinder Singh Nijjar]




                                              …...........................J.
                                                                [A.K. Sikri]


     New Delhi
     April 22, 2014


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