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2013 DIGILAW 257 (PNJ)

New Finance & Credit Corporation v. Gurbaksh Kaur

2013-02-22

Hemant Gupta

body2013
JUDGMENT Mr. Hemant Gupta, J.:- This judgment shall dispose of RFA No. 490 of 1990 preferred by defendants No.1 and 2 arising out of judgment and decree passed by learned trial Court on 12.11.1986 as affirmed by learned first Appellate Court on 31.10.1989 in a Civil Suit No. 760 of 1985 for permanent injunction restraining the defendants-the present appellants from raising construction in the area marked as A, B, C, D in the plan attached in the residential colony of Ranjit Nagar (herein after referred as ‘First Suit’) and RSA No. 357 of 2003, 1063 of 2003 arises out of a subsequent Civil Suit No. 177 of 1995 filed by Amarnath and others for possession and by way of partition of the area measuring 4 kanals 16 marlas. (hereinafter referred as ‘Second Suit’). 2. Though the learned trial Court dismissed the second suit on 17.5.1999, but the learned first Appellate Court has granted conditional decree. It was ordered that Municipal Corporation can acquire the land measuring 4 kanals 16 marlas at a price which was prevalent at the time when Ranjit Nagar Scheme was introduced if it wants to retain the site as park, failing which the plaintiff was granted decree for separate possession by way of partition of the area measuring 4 kanal 16 marlas. Aggrieved against the said judgment and decree, the Municipal Corporation and one of defendants- Gurbax Kaur, the plaintiffs in the first suit have preferred the separate appeals. 3. The first suit was filed by Gurbax Kaur in a representative capacity alleging that they have purchased the plots on the basis of the open park reflected in the lay out plan prepared by the colonizers. Reference is made to the drawings dated 4.9.1956 of the Divisional Town Planner and also by the Municipal Committee of Jalandhar. It is thus, pointed out that since the residents of the locality are using the park as per the lay out plan sanctioned, therefore, such park cannot be used for any other purpose. In the written statement filed by defendant No.1, it is pointed out that the Town Planning Scheme in respect of the residential Scheme carved out by residential Scheme No. 25-A of Ranjit Singh Nagar, Jalandhar formulated as per the drawings number ATPJ-189/56 dated 4.9.1956 has been revised later in the year 1977 and thus the previous Town Planning Scheme no longer subsists. The parties led their evidence and the learned trial Court decreed the first suit on 12.11.1986. Such judgment was affirmed in appeal. Still aggrieved, defendant Nos. 1 and 2 are in second appeal. 4. In the first suit, learned trial Court recorded a finding of fact on the basis of the statement of Sh. R. K. Bhardwaj (DW-1), the Managing Director of defendant No. 1 i.e. New Finance & Credit Corporation Pvt Ltd. Jalandhar admitting that Ex. PX is the photocopy of the layout plan of Ranjit Nagar prepared in the year 1956 and that the same is correct according to the records at the spot and that the area of the plot marked as A,B,C,D is lying vacant and that the park is being used by the residents of the locality. The Park in the Ranjit Nagar Colony was laid in terms of Section 3(13-a) of the Punjab Municipal Act in 1956 being open vacant space. The learned trial Court also returned a finding that the defendants have not been able to place on record the cogent evidence that the original land of park measuring 8 kanals 11 marlas has been subsequently reduced to 2 kanals 17 marlas. It was held that the land is vested with the Municipal Committee for the benefit of the residents of the locality. Such findings were affirmed in appeal as well. 5. The document Ex. DW2/B is the photocopy of the order of the Governor dated 25.1.1977, the basis of the arguments of the learned counsel for the appellant. The said order reads as under: - “In exercise of powers conferred under Section 192(3) of the Punjab Municipal Act, 1911 and all other powers enabling him in this behalf, the Governor of Punjab is pleased to sanction the Town Planning Scheme of Area No. 25-A, Municipal Committee, Jallandhar subject to the condition that there is no plot in the Scheme more than 500 square yards as described in lay out plan No. DTP-J 20/76 dated 28.4.1976.” 6. As per the evidence on record, the State Government has sanctioned revised Town Planning Scheme on 28.4.1976 vide Ex. DW-2/A. Earlier in the Town Planning Scheme sanctioned on 6.5.1956, the land measuring 8 kanal 11 marlas was reflected as a park. There is no evidence in respect of the park size being reduced to that measuring 2 kanals 17 marlas. As per the evidence on record, the State Government has sanctioned revised Town Planning Scheme on 28.4.1976 vide Ex. DW-2/A. Earlier in the Town Planning Scheme sanctioned on 6.5.1956, the land measuring 8 kanal 11 marlas was reflected as a park. There is no evidence in respect of the park size being reduced to that measuring 2 kanals 17 marlas. The documents produced do not prove the said fact. Sub Section 3 of Section 192 of the Punjab Municipal Act, 1911 applicable at the time of framing of the building scheme permits the modification of the Scheme which is originally drawn up. Even if it is assumed that the authority which has power to sanction the building Scheme, has also power to undo the same but there is no evidence that the area of park was reduced in the lay out plan notified in the year 1976-77. It is not possible to accept the arguments raised by the defendants that the area of the park which was measuring 8 kanal 11 marlas in the Scheme sanctioned on 4.9.1956 could be reduced to 2 kanal 17 marlas in the year 1977. The argument raised is wholly untenable. The land measuring 8 Kanals 11 marlas vested in the Committee when the scheme was sanctioned in the year 1956. Once, the land vests with the Municipal Committee, the same would not revert to the original owners in the revised lay out plan. It is finding of fact, which is sought to be disputed in the present second appeal. Therefore, the findings recorded by the learned Courts below do not call for any interference in the second appeal. I do not find any substantial question of law arises for consideration. The said appeal i.e. RSA No. 490 of 1990 is thus dismissed. 7. In second suit (Civil Suit No. 177 of 1995) filed by plaintiffs respondents in the second appeal, it has been asserted that in a colony developed, the land measuring 8 kanals 11 marlas was kept as an open space as per the layout plan (Ex. PX). The said appeal i.e. RSA No. 490 of 1990 is thus dismissed. 7. In second suit (Civil Suit No. 177 of 1995) filed by plaintiffs respondents in the second appeal, it has been asserted that in a colony developed, the land measuring 8 kanals 11 marlas was kept as an open space as per the layout plan (Ex. PX). The plaintiffs claim to have purchased the land measuring 11 kanals 19 marlas in an open auction on 2.4.1962, Out of the said land, land measuring 3 kanals 4 marlas was sold to different persons through sale deeds, whereas in respect of the remaining land measuring 8 kanals 15 marlas, the Municipal Corporation, Jalandhar came into possession of the land measuring 3 kanals 18 marlas out of which a park was created on a land measuring 2 kanal 17 marlas. The plaintiffs in the second suit claim to be the owner of the remaining land measuring 4 kanals 16 marlas. It is asserted that the said area i.e. 4 kanal 16 marlas is the land, the possession of which was neither taken in by the Municipal Committee or Corporation nor sold by the plaintiffs and thus plaintiffs are entitled to separate possession of the said land. The stand of defendant No. 1-Municipal Corporation was that the park has not shrinked to 2 kanal 17 marlas as claimed and that no vacant land is to be partitioned. The said suit was dismissed by the learned trial Court on 17.5.1999 but the learned Appellate Court allowed the same in the same terms, as mentioned above. 8. In the second suit, the stand of the defendant-Municipal Corporation is that the judgment in the previous suit is the decree in rem and not in personam and the same is binding upon the plaintiffs. It is asserted that the sale if any does not affect the right and title of the Municipal Committee as there exists a park on the land measuring 8 kanal 11 marlas and 153 square feet and the judgment and decree passed by the learned trial Court in the previous suit confirms this fact. The Corporation denied that the plaintiffs are the owner of the land measuring 4 kanal 16 marlas of the land and that the property in question exclusively vests with the Municipal Corporation. 9. The Corporation denied that the plaintiffs are the owner of the land measuring 4 kanal 16 marlas of the land and that the property in question exclusively vests with the Municipal Corporation. 9. I have heard learned counsel for the parties in the second appeal arising out of the second suit. I find that the following substantial questions of law arise for consideration: - 1. Whether the plaintiff-Amarnath and others can be declared to be the owners of the land when in a Town Planning Scheme sanctioned on 4.9.1956, the land measuring 8 kanal 11 marlas was reserved for a park? 2. Whether the land which vested with the Municipal Committee in pursuance of the building Town Planning Scheme prepared in 1956 would cease to be vested in the Municipal Committee on issuance of the order dated 25.1.1977? 10. After hearing learned counsel for the parties, I find that the plaintiffs rely upon a sale certificate dated 2.4.1962 in respect of purchase of land measuring 11 kanal 19 marlas. Any purchase by the plaintiffs after the finalization of the building Scheme i.e. on 4.9.1956 will be subject to the rights of the Municipal Committee in the said land. Once, the land vested in the Municipal Committee in terms of section 192 of the Municipal Act, 1911 with the finalization of the building Scheme on 4.9.1956, the purchase of any part of the land by the plaintiffs would be ineffective qua the rights of the Municipal Committee to that extent. Therefore, the land measuring 8 kanals 11 marlas shall continue to vest with the Municipal Committee irrespective of the purchase of the land by the plaintiffs in a public auction vide sale certificate dated 2.4.1962. Therefore, the plaintiff cannot be declared to be owner of the land measuring 8 kanal 11 marlas, the land which vested in the Committee as the land for park. 11. The office order dated 25.1.1977 is to the effect that the revised Town Planning Scheme has been approved with a stipulation that in the revised Scheme the plots of more than 500 square yards will not be allotted. The lay out plan produced in the second suit does not demarcate clearly that the land for the park is measuring 2 kanal 17 marlas. The lay out plan produced in the second suit does not demarcate clearly that the land for the park is measuring 2 kanal 17 marlas. It has not been explained that how the land measuring 8 kanal 11 marlas vested with the Municipal Committee in 1956 could be reduced to 2 kanal 17 marlas. Even if the area of park is reduced, the remaining land will continue to vest with the Municipal Committee. It will not revert to the owners as is asserted by the plaintiffs in the second suit and the defendants in the first suit. The land vested in the Committee cannot be diverted on the basis of sanction of lay out plan even though there is no evidence of lessor area for park. 12. In view of the said fact, the questions of law are answered in favour of the defendants-appellants. Amarnath cannot claim any right, title and interest over the land measuring 8 kanal 11 marlas, which is part of the Town Planning Scheme in terms of the lay out plan sanctioned on 4.9.1956. 13. Consequently, the appeals (RSA 357 of 2003 and RSA 1063 of 2003) are allowed and the second suit is dismissed. ---------0.B.S.0------------