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CASE NO.: Appeal (civil)  15340 of 1996

PETITIONER: Municipal Corporation, Ludhiana & Another

RESPONDENT: Balinder Bachan Singh (D) by Lrs. & Others

DATE OF JUDGMENT: 28/04/2004

BENCH: R.C. Lahoti & Ashok Bhan.

JUDGMENT: J U D G M E N T

WITH

CIVIL APPEAL NO. 15341 OF 1996

BHAN,J.

       These appeals are directed against the judgment and order of the High  Court of Punjab and Haryana at Chandigarh dated 11th July, 1996 passed in  R.S.A. No. 2315 of 1988 whereby  the High Court has upheld the judgment  of reversal of the Additional District & Sessions Judge thereby decreeing the  suit filed by the plaintiffs-respondents Nos. 1 & 2 (hereinafter referred to as  the ’respondents’).   

       Civil Appeal No. 15340 of 1996 has been filed by the Municipal  Corporation, Ludhiana and Civil Appeal No. 15341 of 1996 has been filed  by the inhabitants of the area of the suit land.  The facts are taken from Civil  Appeal No. 15340 of 1996.

       Municipal Corporation, Ludhiana, (hereinafter referred to as the  ’appellant’), notified  a Town Planning Scheme Area No.6   Part-IIIA,  known as Sampuran Colony, Model Gram, Ludhiana, duly framed under  Section 192(2) of the Punjab Municipal Act, 1911 (for short ’the Act’).  Sampuran Singh is the father of Respondent Nos. 1 (D) through Lrs. and 2  and husband of Smt. Rajinder Kaur.  In the Scheme, the land of Smt.  Rajinder Kaur, (since deceased) respondent No.3 and mother of the  respondents was also included. Notice was published in the newspapers  inviting objections to the proposed scheme.  Shrimati  Rajinder Kaur raised  certain objections in which she wanted certain changes and adjustments to  be made in the scheme. Executive Officer of the appellant vide letter dated  29th June, 1968 called upon Smt. Rajinder Kaur to come to his office on 5th  July, 1968 for considerations of the objections filed by her.  Taking into  consideration the objections filed and having heard the objector the Scheme  was approved with certain modifications.  She had agreed to leave 25 per  cent of the land for common purposes such as roads and parks.  She gave her  own design for earmarking plots and shopping area.  The Local Government  Department, Punjab in exercise of its power under Section 192 of the Act  accorded sanction to the Town Planning Scheme approved and submitted by  the Municipal Corporation.  After the Scheme was duly notified by the  Government, the public land along with other land was developed by the  appellant as per Scheme.  Roads were carved out, sewage as well as water  facilities were installed and the suit land i.e. 3 kanals 16 marlas which was to  form a green park was also developed. The dispute in these appeals pertain  to land measuring 3 kanals 16 marlas which was reserved under the Scheme  as open space to develop a park to provide lung space to the inhabitants of  the locality.

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       In the year 1976, when the Scheme had attained finality and steps in  pursuance thereto had been completed, plaintiffs-respondents Nos. 1 & 2  who are none other than the sons of the Smt. Rajinder Kaur instituted the  present suit claiming themselves to be in possession of the suit land  measuring 3 kanals 16 marlas and alleging that the appellants were bent  upon taking forcible possession of the suit land, filed the suit for perpetual  injunction restraining the appellants from taking forcible possession of the  same.

       Appellants filed their written statement stating that the suit land had  already been developed as a park as per the Town Planning Scheme and was  being used as such by the inhabitants of the locality.  It was asserted that  before developing the area, statement of ownership was prepared according  to which Rajinder Kaur, respondent No.3 was recorded as owner of the suit  land.  The cultivating possession of the plaintiffs over the suit land was  denied.  It was alleged that the Town Planning Scheme of the area was  notified and the plaintiffs-respondents did not raise any objection and after  the sanction of the Town Planning Scheme possession was taken by the  Corporation of the common areas for development as per scheme.   Roads  and park were developed as per scheme which were being used as such by  the inhabitants.  On the pleadings of the parties the trial court framed the  following issues:

"1.     Whether the plaintiff is entitled to the  injunction as prayed for? OPP.

2.      Whether the suit has become infurctuous as  alleged? OPD.

3.      Relief."

       After taking into consideration the evidence produced by the parties,  the trial Court concluded that the suit land was left as a park in the Scheme  which was duly developed and was being used as such by the inhabitants of  the locality.  It was held that the respondents were not in possession of the  suit land.  Accordingly, the suit filed by the plaintiffs-respondents was  dismissed.

       Aggrieved against the order of the trial court, respondents filed an  appeal which came up for hearing before the Additional District & Sessions  Judge, Ludhiana, and was accepted.  It was held that the respondents were  owners in possession of the suit land and, therefore, they were entitled to the  injunction, prayed for.

       Aggrieved against the aforesaid order, the Municipal Corporation  filed an appeal in the High Court being Regular Second Appeal No. 2315 of  1988.  The inhabitants of the locality, who are the appellants in Civil Appeal  No. 15341 of 1996, filed an application under Order 1 Rule 10 seeking  impleadment which was rejected.  Learned Single Judge affirmed the finding  of the first appellate court.  It  was held that the finding recorded by the first  appellate court regarding possession was a finding of fact which could not  be interfered with in the second appeal.  One of the reasons which persuaded  the learned Single Judge to come to this conclusion was that the sanctioned  scheme and the site plan attached to the sanctioned scheme were not brought  on record.

       Aggrieved against the aforesaid order of the learned Single Judge, the  present appeals have been filed.

       Plaintiffs-respondents produced six witnesses including Shri H.L.  Sethi, PW2 who was appointed as Local Commissioner to inspect the  premises.  He inspected the  premises and reported that there is no park in

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the property in dispute .  Other five witnesses i.e. PW1 and PW3 to PW6  supported the allegations made by the plaintiffs-respondents.  In rebuttal the  appellant also produced six witnesses and documents D1 to D38 showing  that the town planning scheme was prepared at the behest of Rajinder Kaur,  mother of the plaintiffs-respondents and was  developed as per scheme, but,  the sanctioned scheme or its site plan were not brought on record.

This Court on 18th November, 2003 being of the opinion that the  controversy could not be effectively adjudicated without the scheme,  directed the learned counsel for the appellants to make available the original  records containing the scheme for the perusal of the Court.  In the interest of  justice and for an effective decision of the case, the Court also directed the  Deputy Commissioner, Ludhiana to carry out an inspection of the land  covered by the Scheme known as Sampuran Colony, Model Gram,  Ludhiana, {Planning Scheme Area No.6 Part-IIIA} and submit a report as to  the status of occupancy of the plots carved out in the sanctioned scheme and  also the status of land admeasuring 3.16 Kanals left in the scheme as open  space.

       In compliance with the above-said directions of this Court, the Deputy  Commissioner personally went  to the spot and inspected the same on 31st  December, 2003 in the presence of the appellant-corporation, represented by  Shri Harjinder Singh, PCS, Joint Commissioner, Municipal Corporation,  Ludhiana and Shri P.K. Garg, Municipal Town Planner, Ludhiana and  respondents represented through S/Shri Jatinder Bachan Singh Grewal and  Satinder Sampuran Singh Grewal.  Apart from these Shri Kuldip Singh,  PCS, Sub Divisional Magistrate, Ludhiana (West), Shri Harnek Singh,  Divisional Town Planner, Ludhiana, Shri Ajay Kumar, Tehsildar Ludhiana  (West) and some other prominent persons of the area were also present at the  time of the inspection.  Deputy Commissioner sent his report to this Court  vide communication No. 470/DCR dated 9.1.2004.  He attached a plan  of  the Sampuran Colony along with his report.  In all there are 39 plots.  Except  three plots which are vacant, construction has been put up on all other plots.   As per report and the attached plan the suit land is an open space lying in the  centre of the scheme without any sort of structure on it. Few photographs  showing that the suit land was vacant were also attached.  A copy of the  report was supplied to the learned counsel for both the parties.  Learned  counsel for the respondents filed his objection to the report.

       Learned counsel for the parties have been heard at length.

We have perused the oral testimony of the witnesses produced by the  respective parties.  We have also perused the scheme which was finally   approved by the State of Punjab under Section 192 of the Act as well as the  other attending documents {Ex. D-1 to D-38} pertaining to the submission  of the scheme, objections filed by Rajinder Kaur and her statement agreeing  to leave 25 per cent of the area for common purposes.  We have also seen  the plan which was prepared at the time of the approval of the scheme as  well as the report of the Deputy Commissioner along with the site plan  attached with it.

       The Municipal Corporation, as noted earlier, had notified the Town  Planning Scheme duly framed under Section 192(2) of the Act.  To the said  scheme Rajinder Kaur, mother of the plaintiffs-respondents No.s 1 & 2 filed  her objections.  She had appeared personally before the Building  Superintendent, Municipal Corporation on 5th July, 1968.  She projected  herself to be the owner of the land.  The objections filed by her were partly  accepted and the scheme was modified as per her desire.  She had agreed to  leave 25 per cent of the land for certain common purposes like roads and  park etc..  After due consideration the Local Government Department,  Punjab approved the town planning scheme and accorded sanctioned to it  under Section 192 of the Act.  The scheme was notified.  Public land  along  with other land was developed as per scheme.  Roads were carved out,  sewage as well as other facilities were installed and the suit land was left  as  a park for the use of the inhabitants of that colony.  After the scheme had

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attained finality in the year 1976, the present suit was filed by the sons of  Rajinder Kaur stating that Rajinder Kaur had no interest or right in the  property and they were the owners in possession of the land measuring 3  kanals 16 marlas and sought for perpetual injunction restraining the  appellant from taking forcible possession.

       Under Section 192 of the Act the Municipal Corporation is entitled to  draw up a building scheme for the built area and the town planning scheme  for un-built area which may among other things provide for the restriction of  the erection or re-erection of buildings, the prescription of a building line on  either side or both sides of any street existing or proposed, and the amount of  land in such unbuilt area which is to be utilised for public purposes including  the use as public streets.  

For every locality green spaces and green belts have to be provided to  provide lung space to the residents of the locality.  A provision for green  park was made by the Municipal Corporation keeping in view the minimum  requirement to provide open/green space to the residents of the locality.  Rajinder Kaur. mother of the plaintiffs-respondents herself had submitted a  lay out plan which comprised the present suit land.  She had herself agreed  to leave 25 per cent of the area under the scheme to be used by the  inhabitants of the locality for common purposes including the open space  area which is in dispute.  The documentary evidence which has come on  record in the form of the original scheme as well as the documents D1 to  D38 and the report submitted by the Deputy Commissioner conclusively  shows that the suit land measuring 3.16 kanals was left in the scheme to be  used as open space for the use of the residents of the locality.

Map attached with the report of the Deputy Commissioner and the site  plan attached with the scheme completely tally with each other. In the  scheme 3.16 kanals of land was left as open space in the centre surrounded  by houses on three sides.  The photographs produced also show that the land  is lying vacant and is being used by the inhabitants for common purposes.  It  may be noted that the plots carved out in the scheme were sold by Rajinder  Kaur as well as her sons including the plaintiffs-respondents. Rajinder Kaur  and plaintiffs/respondents could not have sold the land without getting the  scheme sanctioned as plots.  It is well-known and judicial notice can be  taken of the fact that residential plots sell at a much higher price than the  agricultural land.  To sell the land as plots, a part of the land has to be left to  provide for common purposes such as roads, community centre, schools and  parks.  Having taken advantage of selling the plots in a developed colony   and charging a higher price, which were purchased by the inhabitants with  the understanding that civic amenities including the park were well provided  for, the plaintiffs/respondents cannot be permitted to turn around  to claim  the land left in the scheme for being used as a park as their personal  property.            In view of the documentary evidence, reliance cannot be placed upon  the oral testimony of the witnesses who were produced by the plaintiffs- respondents.  In our considered view, the land measuring 3.16 kanals was  left in the scheme for the use of the residents of the locality. Contentions  raised by the learned counsel for the plaintiffs-respondents that the suit land  did not form part of the town planning scheme or the land continued to be  owned by the plaintiffs-respondents and that they were in exclusive  possession there of cannot be accepted.

       For the reasons stated above, the appeals are allowed.  The judgment  and order of the learned Single Judge of the High Court and that of the first  appellate Court are set aside. The order of the trial court is restored and the  suit filed by the plaintiffs-respondents is dismissed with costs throughout.