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
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.
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
