JYOTI NAGAR WELFARE ASSOCIATION versus AMIR CHAND (DEAD) THROUGH LRS & ANR. on 6 September 2022

1. Feeling aggrieved and dissatisfied with impugned judgment andorder dated 06.01.2016 passed by the High Court of Punjab and Haryanaat Chandigarh in Regular Second Appeal No. 115 of 1994 (O&M), bywhich, the High Court has disposed of the said appeal by observing thatthe suit land in question under possession of the original plaintiff be alsoacquired in accordance with law and compensation be paid to the originalplaintiff in accordance with law, Jyoti Nagar Welfare Association andMunicipality, Thanesar have preferred the present appeals.

2. The facts leading to the present appeals in a nutshell are asunder: - ABC

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A2.1 That after following the due procedure as required under theprovisions of the Haryana Municipal Act, 1973 (hereinafter referred toas the Act, 1973) the State of Haryana sanctioned Town Planning SchemeNo. 5 (unbuilt area) on 29.10.1975. Under the said Scheme, the suit landin question was reserved for public park. That respondent No. 1 herein– original plaintiff instituted the present suit being Civil Suit No. 29/1987Bfor permanent injunction only with respect to the land admeasuring 5kanals and 12 marlas which was reserved for public park, contending,inter-alia, that though the Scheme was sanctioned in the year 1975, thesame has not been used for a public park even after a period of fiveyears and that the plaintiff continued to remain in possession. Therefore,Cthe aforesaid suit was filed only to protect the possession and forpermanent injunction. The said suit was filed on 26.12.1986. It wasaverred in the plaint that respondent No. 2 – Administrator, Municipality,Thanesar threatened to take possession and thereby disturb the possessionof the plaintiff a week prior to the filing of the suit. It was submitted bythe defendant in the written statement that as per Town Planning SchemeDNo. 5, the land has been reserved for a park and therefore, the MunicipalCommittee, Thanesar is the owner and in possession of the land in disputeas the same is reserved for a park. Therefore, the possession of theplaintiff to the extent of 5 kanals was denied. Both the parties led theirevidence. On behalf of the defendant one Sher Singh, officer of theMunicipal Committee came to be examined as DW-1. Before the learnedETrial Court a communication dated 13.12.1983 addressed by the plaintiffto the Administrator was brought on record as exhibit D5 (the sameshall be discussed hereinbelow). The learned Trial Court decreed thesuit in favour of the plaintiff and granted permanent injunction observingthat the plaintiff is in possession of the suit land. The First AppellateFCourt allowed the appeal and quashed and set aside the judgment anddecree passed by the learned Trial Court granting permanent injunctionand consequently, dismissed the suit. In second appeal, by the impugnedjudgment and order the High Court has disposed of the appeal by observingthat respondent No. 1 – original plaintiff is in possession and even if thescheme is implemented, the same may be acquired in accordance withGlaw and to pay the compensation to the plaintiff. The High Court hasdisposed of the second appeal in terms of the above.

2.2 Feeling aggrieved and dissatisfied with the impugned judgmentand order passed by the High Court, Jyoti Nagar Welfare Association aswell as the Municipality, Thanesar, through its Administrator haveHpreferred the present appeals.

3. It is the case on behalf of the appellants herein that in factTown Planning Scheme No. 5 (unbuilt area) was implemented within aperiod of five years i.e., in the year 1980 itself. It is the case on behalf ofthe appellants that as such the possession of the land reserved for publicpark to the extent of 5 kanals was already taken over by the MunicipalCommittee. It is the further case on behalf of the appellants that as suchthe original plaintiff admitted in his communication i.e., exhibit D5 thatthe possession of the land reserved for the park had been taken over. Itis submitted that the only grievance raised by the plaintiff incommunication dated 13.12.1983 was with respect to the mistake incalculation of the area and it was the case on behalf of the plaintiff thatthough the land shown as taken under open area is 25% under TownPlanning Scheme but in fact, considering the calculation mistake thearea is more, if calculated on percentage basis. Therefore, it is the caseon behalf of the appellants that the plaintiff never disputed the takingover of the possession earlier and the only dispute was with respect tothe mistake in calculation of the area on per centage basis.

4. Relying upon the aforesaid communication, Shri Manoj Swarup,learned Senior Advocate appearing on behalf of the appellant in theappeal filed by the Jyoti Nagar Welfare Association and Ms. AnubhaAgrawal, learned counsel appearing on behalf of the appellant in theappeal filed by the Municipality, Thanesar, have vehemently submittedthat both, learned Trial Court as well as the High Court have committeda grave error in holding that the plaintiff was in possession of the suitland, which was reserved for public park.

4.1 Learned counsel appearing on behalf of the respectiveappellants have further submitted that the suit was only for permanentinjunction. No declaration was sought to declare the Scheme as lapsedon the ground that the land was not used for the purpose for which itwas reserved within a period of five years. It is submitted that the entirecase on behalf of the plaintiff was that the land in question reserved forpublic park was not used within a period of five years and the Schemewas not implemented despite five years having lapsed and thereforethere shall be a deemed lapse. It is submitted that however neither sucha declaration was sought nor the Scheme had been challenged. It issubmitted that once the land in question reserved for public park wasincluded in the sanctioned Town Planning Scheme, the land so reservedto the extent of 25% of the total holding shall vest in the Municipal AB

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ACommittee and the Municipal Committee becomes the absolute ownerand in possession. It is contended that the fact that possession of theland reserved for public park was taken over was in fact admitted by theplaintiff by communication dated 13.12.1983 and hence, the learned TrialCourt erred in granting the relief of permanent injunction in favour of theplaintiff, and the same was rightly set aside by the First Appellate Court.B

4.2 It is further submitted by learned counsel appearing on behalfof the respective appellants that as such the land in question is alreadyput to use as a public park as the possession was already taken over, theplaintiff shall hence not be entitled for any decree for permanentinjunction.C

4.3 It is submitted that both, learned Trial Court as well as theHigh Court have mis-interpreted and/or mis-read the deposition of DW-5– Sher Singh, Officer of the Municipal Committee. That if the depositionof Sher Singh is read it was the case on behalf of the Municipality that inthe year 1985, the plaintiff again got possession of the land and thereafterDthe plaintiff installed wire poles on the side of the way. In that view ofthe matter, the learned Trial Court as well as the High Court are notjustified in holding that the plaintiff was in possession and was entitled topermanent injunction.

5. Shri Neeraj Kumar Jain, learned Senior Advocate appearingEon behalf of the original plaintiff in respective appeals has candidlyadmitted that the suit was only for the relief of permanent injunction. Hehas candidly admitted that no declaration to declare that the TownPlanning Scheme No. 5 had lapsed and/or deemed to have lapsed wassought and/or is sought. He has candidly admitted that the plaintiff is notFpraying and/or submitting that the Town Planning Scheme has lapsed.However, he has vehemently submitted that the plaintiff continued to bein possession of the suit land in question, therefore, the learned TrialCourt rightly passed the decree for permanent injunction. That the findingsrecorded by the learned Trial Court and recorded by the High Court onpossession is on appreciation of evidence, more particularly, the depositionGof DW-5 – Sher Singh, officer of the Municipal Committee, who hasspecifically admitted the possession of the plaintiff. Therefore, it isrequested to dismiss the present appeals.

6. Shri Sachin Jain, learned counsel appearing on behalf of thepetitioner in Contempt Petition (C) No. 660/2017 has vehementlyHsubmitted that despite the order of status quo granted by this Court the respondents – officers of the Municipality have constructed a road and/or made construction and therefore, the officers of the Municipality haverendered themselves liable for suitable action under the provisions of theContempt of Courts Act. It is vehemently submitted by Shri Sachin Jain,learned counsel appearing on behalf of the petitioner – applicant - originalplaintiff in contempt petition that the learned Trial Court granted interiminjunction during the pendency of the suit in favour of the applicant –original plaintiff. That therefore the possession of the petitioner wasprotected. It is submitted therefore that once the original plaintiff –applicant was found to be in possession and there was an order of statusquo granted by this Court, the officers of the Municipality ought not tohave put up any further construction.

7. We have heard learned counsel appearing on behalf of therespective parties at length. We have gone through the averments madein the plaint and also the reliefs sought in the suit.

7.1 At the outset, it is required to be noted that the original plaintiffinstituted the suit and sought the relief of permanent injunction only. It isan admitted position that neither the plaintiff challenged the Scheme norsought a declaration that the Town Planning Scheme No. 5 (unbuilt area)had lapsed and/or deemed to have lapsed as the same was notimplemented within a period of five years from the date of its sanction.Therefore, Shri Neeraj Kumar Jain, learned Senior Advocate appearingon behalf of the original plaintiff has also fairly conceded that the originalplaintiff has never sought any declaration declaring the Town PlanningScheme No. 5 (unbuilt area) had lapsed and/or deemed to have lapsedin view of Section 203(6) of the Act, 1973. He has also stated at the Barthat the plaintiff is not challenging the sanctioned Scheme nor is submittingthat the Town Planning Scheme No. 5 had lapsed and/or deemed tohave lapsed. However, it is the case on behalf of the original plaintiffthat he remained in possession of the suit land and therefore, the plaintiffis entitled to the permanent injunction restraining the defendants – officersof the Municipality from disturbing his possession. Shri Neeraj KumarJain, learned Senior Advocate appearing on behalf of the plaintiff hasalso relied upon the deposition of DW-1 – Sher Singh in support of thecase on behalf of the plaintiff that the plaintiff was in possession since1985 also.

7.2 However, the deposition of DW-1 – Sher Singh, officer of theMunicipal Committee is required to be read as a whole. If the deposition AB

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Aof DW-1 is read as a whole, in the cross- examination, he specificallystated that the development work of the area has been completed. Hehas also stated in the cross- examination that the plaintiff has again gotpossession and now the plaintiff has installed wire poles on the side ofthe way. Therefore, it was the specific case on behalf of the Municipality that the plaintiff re-entered the suit land and again got the possession. ItBis to be noted that the same is borne out of the cross-examination ofDW-1. At this stage, document i.e., exhibit D-5 dated 13.12.1983addressed by the original plaintiff to the Administrator Municipality isrequired to be referred to. In the said communication, it was stated byoriginal plaintiff that though the land shown as taken under open spaceCetc. is 25% under T.P. Scheme, but in fact there is a calculation mistakeand this area is more if calculated on percentage basis. Therefore, infact there is a categorical admission on the part of the plaintiff that thepossession at least to the extent of 25% under the Town Planning Schemewas taken over. The only dispute raised was with respect to the calculationmistake. The plaintiff is bound by such admission. Therefore, even fromDcommunication dated 13.12.1983, it can be seen that possession of thesuit land reserved for public park under the sanctioned Town PlanningScheme was already taken over. The aforesaid is now required to beconsidered along with the statement of DW-1 that the plaintiff re-enteredthe plot/land and again got the possession and started putting up fencing/

Ewire poles. Therefore, the learned Trial Court as well as the High Courthave materially erred in passing the decree of permanent injunctionrestraining defendants from disturbing the possession of the plaintiff.

8. At the cost of repetition, it is observed that the suit land inquestion is reserved for a public park under the Town Planning SchemeFsanctioned under the provisions of the Act, 1973. No declaration is soughtthat the Scheme has lapsed under Section 203(6) of the Act, 1973 and/or no declaration is sought as lapse and/or deemed to have lapsed underSection 203(6) of the Act, 1973. Therefore, we refrain from making anyobservations that the Town Planning Scheme under Section 203, more

particularly, under Section 203(6) of the Act, 1973 has lapsed and/orGdeemed to have lapsed. Therefore, the question, namely, whether onnon-compliance of Section 203(6) of the Act, 1973, the Scheme shalllapse and/or deemed to have lapsed is kept open.

9. In view of the above and once the suit land in question is reservedfor a public park under the sanctioned Town Planning Scheme and asH

observed hereinabove, the possession of land in question was taken overand the same has been developed as a public park, as such the landvests in the Municipal Committee and therefore, the plaintiff shall not beentitled to the decree/relief of permanent injunction. In any case asobserved hereinabove the possession of the suit land was already takenover for the public purpose for which the same was reserved under theTown Planning Scheme. Both, the learned Trial Court as well as theHigh Court have committed a serious error in passing the decree ofpermanent injunction calling for interference in these appeals.

10. Now so far as the contempt proceedings initiated by theplaintiff is concerned, at the outset it is required to be noted that theorder of status quo is required to be considered with respect to the contextin which it was passed. The dispute was with respect to the possessionand even the learned Trial Court also granted the injunction with respectto the possession. Therefore, the order of status quo granted by thisCourt is required to be considered with respect to the possession only.Once as observed hereinabove, the possession of the suit land in questionwas already taken over and the suit land vested in Municipal Committeeand thereafter, if any improvement has made and/or construction is putup on suit land, it cannot be said that the same can be said to be inviolation of order of status quo. It is required to be noted that the land isused by the Municipality for a public purpose i.e., for a public park andthe local people are using the same. Therefore, in the facts andcircumstances of the case and for the reasons stated hereinabove wedeem it proper to close the contempt proceedings.

11. In view of the above discussion and for the reasons statedabove, the present appeals succeed. The impugned judgment and orderpassed by the High Court in Regular Second Appeal No. 115/1994 ishereby quashed and set aside. The judgment and decree of permanentinjunction granted by the learned Trial Court is also quashed and setaside. The judgment and order passed by the First Appellate Court ishereby restored. Consequently, the original suit filed by the original plaintiffstands dismissed. The contempt proceedings stand disposed of.

All pending application(s), if any, stand disposed of. In the factsand circumstances of the case there shall be no order as to costs.

Appeals allowed.

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