Jyoti Nagar Welfare Association vs Amir Chand (Dead)

ITEM NO.1501 COURT NO.8 SECTION IV (For Judgment)

S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS

Civil Appeal No(s). 5826/2022

JYOTI NAGAR WELFARE ASSOCIATION Appellant(s)

VERSUS

AMIR CHAND (DEAD) & ANR. Respondent(s)

([ HEARD BY : HON'BLE M.R. SHAH AND HON'BLE B.V. NAGARATHNA, JJ. ] IA No. 70517/2018 - I/A FOR BRINGING ON RECORD LRS OF THE DECEASED RES. NO. 1)

WITH

C.A. No. 5827/2022 (IV)

CONMT.PET.(C) No. 660/2017 In SLP(C) No. 12934/2016 (IV-B) ( and IA No.68266/2017-I A U/S 340)

Date : 06-09-2022 These matters were called on for pronouncement of judgment today.

For Appellant(s) Mr. Sachin Jain, Adv. Ms. Anubha Agrawal, AOR Mr. Mukul Kumar, AOR

Mr. Rajiv Ranjan Dwivedi, AOR

For Respondent(s) Mr. Sachin Jain, Adv. Mr. Rajiv Ranjan Dwivedi, AOR Ms. Anubha Agrawal, AOR Mr. Mukul Kumar, AOR Hon’ble Mr. Justice M.R. Shah pronounced the Reportable

Judgment of the Bench comprising His Lordship and Hon’ble

Mrs. Justice B.V. Nagarathna.

The Civil Appeals are allowed and the Contempt Petition is

disposed of in terms of the Signed Reportable Judgment placed

below.

Pending application(s), if any, are disposed of.

(VIJAY KUMAR) (NISHA TRIPATHI) COURT MASTER (SH) ASSISTANT REGISTRAR REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 5826 OF 2022

Jyoti Nagar Welfare Association ...Appellant(s)

Versus

Amir Chand (Dead) through LRs & Anr. …Respondent(s) With CIVIL APPEAL NO. 5827 OF 2022 With CONTEMPT PETITION (C) NO. 660/2017 IN CIVIL APPEAL NO. 5826 OF 2022

JUDGMENT

M.R. SHAH, J.

1. Feeling aggrieved and dissatisfied with impugned judgment and

order dated 06.01.2016 passed by the High Court of Punjab and

Haryana at Chandigarh in Regular Second Appeal No. 115 of

1994 (O&M), by which, the High Court has disposed of the said

appeal by observing that the suit land in question under

possession of the original plaintiff be also acquired in

accordance with law and compensation be paid to the original

plaintiff in accordance with law, Jyoti Nagar Welfare Association

and Municipality, Thanesar have preferred the present appeals.

2. The facts leading to the present appeals in a nutshell are as

under: ­

2.1 That after following the due procedure as required under the

provisions of the Haryana Municipal Act, 1973 (hereinafter

referred to as the Act, 1973) the State of Haryana sanctioned

Town Planning Scheme No. 5 (unbuilt area) on 29.10.1975.

Under the said Scheme, the suit land in question was reserved

for public park. That respondent No. 1 herein – original plaintiff

instituted the present suit being Civil Suit No. 29/1987 for

permanent injunction only with respect to the land

admeasuring 5 kanals and 12 marlas which was reserved for

public park, contending, inter­alia, that though the Scheme was

sanctioned in the year 1975, the same has not been used for a

public park even after a period of five years and that the

plaintiff continued to remain in possession. Therefore, the

aforesaid suit was filed only to protect the possession and for

permanent injunction. The said suit was filed on 26.12.1986. It

was averred in the plaint that respondent No. 2 – Administrator,

Municipality, Thanesar threatened to take possession and

thereby disturb the possession of the plaintiff a week prior to

the filing of the suit. It was submitted by the defendant in the

written statement that as per Town Planning Scheme No. 5, the land has been reserved for a park and therefore, the Municipal

Committee, Thanesar is the owner and in possession of the land

in dispute as the same is reserved for a park. Therefore, the

possession of the plaintiff to the extent of 5 kanals was denied.

Both the parties led their evidence. On behalf of the defendant

one Sher Singh, officer of the Municipal Committee came to be

examined as DW­1. Before the learned Trial Court a

communication dated 13.12.1983 addressed by the plaintiff to

the Administrator was brought on record as exhibit D5 (the

same shall be discussed hereinbelow). The learned Trial Court

decreed the suit in favour of the plaintiff and granted

permanent injunction observing that the plaintiff is in

possession of the suit land. The First Appellate Court allowed

the appeal and quashed and set aside the judgment and decree

passed by the learned Trial Court granting permanent

injunction and consequently, dismissed the suit. In second

appeal, by the impugned judgment and order the High Court

has disposed of the appeal by observing that respondent No. 1 –

original plaintiff is in possession and even if the scheme is

implemented, the same may be acquired in accordance with law

and to pay the compensation to the plaintiff. The High Court

has disposed of the second appeal in terms of the above. 2.2 Feeling aggrieved and dissatisfied with the impugned judgment

and order passed by the High Court, Jyoti Nagar Welfare

Association as well as the Municipality, Thanesar, through its

Administrator have preferred the present appeals.

3. It is the case on behalf of the appellants herein that in fact

Town Planning Scheme No. 5 (unbuilt area) was implemented

within a period of five years i.e., in the year 1980 itself. It is the

case on behalf of the appellants that as such the possession of

the land reserved for public park to the extent of 5 kanals was

already taken over by the Municipal Committee. It is the further

case on behalf of the appellants that as such the original

plaintiff admitted in his communication i.e., exhibit D5 that the

possession of the land reserved for the park had been taken

over. It is submitted that the only grievance raised by the

plaintiff in communication dated 13.12.1983 was with respect

to the mistake in calculation of the area and it was the case on

behalf of the plaintiff that though the land shown as taken

under open area is 25% under Town Planning Scheme but in

fact, considering the calculation mistake the area is more, if

calculated on percentage basis. Therefore, it is the case on

behalf of the appellants that the plaintiff never disputed the

taking over of the possession earlier and the only dispute was with respect to the 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

the appeal filed by the Jyoti Nagar Welfare Association and Ms.

Anubha Agrawal, learned counsel appearing on behalf of the

appellant in the appeal filed by the Municipality, Thanesar,

have vehemently submitted that both, learned Trial Court as

well as the High Court have committed a grave error in holding

that the plaintiff was in possession of the suit land, which was

reserved for public park.

4.1 Learned counsel appearing on behalf of the respective

appellants have further submitted that the suit was only for

permanent injunction. No declaration was sought to declare the

Scheme as lapsed on the ground that the land was not used for

the purpose for which it was reserved within a period of five

years. It is submitted that the entire case on behalf of the

plaintiff was that the land in question reserved for public park

was not used within a period of five years and the Scheme was

not implemented despite five years having lapsed and therefore

there shall be a deemed lapse. It is submitted that however

neither such a declaration was sought nor the Scheme had been challenged. It is submitted that once the land in question

reserved for public park was included in the sanctioned Town

Planning Scheme, the land so reserved to the extent of 25% of

the total holding shall vest in the Municipal Committee and the

Municipal Committee becomes the absolute owner and in

possession. It is contended that the fact that possession of the

land reserved for public park was taken over was in fact

admitted by the plaintiff by communication dated 13.12.1983

and hence, the learned Trial Court erred in granting the relief of

permanent injunction in favour of the plaintiff, and the same

was rightly set aside by the First Appellate Court.

4.2 It is further submitted by learned counsel appearing on behalf

of the respective appellants that as such the land in question is

already put to use as a public park as the possession was

already taken over, the plaintiff shall hence not be entitled for

any decree for permanent injunction.

4.3 It is submitted that both, learned Trial Court as well as the

High Court have mis­interpreted and/or mis­read the

deposition of DW­5 – Sher Singh, Officer of the Municipal

Committee. That if the deposition of Sher Singh is read it was

the case on behalf of the Municipality that in the year 1985, the

plaintiff again got possession of the land and thereafter the plaintiff installed wire poles on the side of the way. In that view

of the matter, the learned Trial Court as well as the High Court

are not justified in holding that the plaintiff was in possession

and was entitled to permanent injunction.

5. Shri Neeraj Kumar Jain, learned Senior Advocate appearing on

behalf of the original plaintiff in respective appeals has candidly

admitted that the suit was only for the relief of permanent

injunction. He has candidly admitted that no declaration to

declare that the Town Planning Scheme No. 5 had lapsed

and/or deemed to have lapsed was sought and/or is sought. He

has candidly admitted that the plaintiff is not praying and/or

submitting that the Town Planning Scheme has lapsed.

However, he has vehemently submitted that the plaintiff

continued to be in possession of the suit land in question,

therefore, the learned Trial Court rightly passed the decree for

permanent injunction. That the findings recorded by the

learned Trial Court and recorded by the High Court on

possession is on appreciation of evidence, more particularly, the

deposition of DW­5 – Sher Singh, officer of the Municipal

Committee, who has specifically admitted the possession of the

plaintiff. Therefore, it is requested to dismiss the present

appeals.

6. Shri Sachin Jain, learned counsel appearing on behalf of the

petitioner in Contempt Petition (C) No. 660/2017 has

vehemently submitted 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 have rendered

themselves liable for suitable action under the provisions of the

Contempt of Courts Act. It is vehemently submitted by Shri

Sachin Jain, learned counsel appearing on behalf of the

petitioner – applicant ­ original plaintiff in contempt petition

that the learned Trial Court granted interim injunction during

the pendency of the suit in favour of the applicant – original

plaintiff. That therefore the possession of the petitioner was

protected. It is submitted therefore that once the original

plaintiff – applicant was found to be in possession and there

was an order of status quo granted by this Court, the officers of

the Municipality ought not to have put up any further

construction.

7. We have heard learned counsel appearing on behalf of the

respective parties at length. We have gone through the

averments made in the plaint and also the reliefs sought in the

suit.

7.1 At the outset, it is required to be noted that the original plaintiff

instituted the suit and sought the relief of permanent injunction

only. It is an admitted position that neither the plaintiff

challenged the Scheme nor sought a declaration that the Town

Planning Scheme No. 5 (unbuilt area) had lapsed and/or

deemed to have lapsed as the same was not implemented within

a period of five years from the date of its sanction. Therefore,

Shri Neeraj Kumar Jain, learned Senior Advocate appearing on

behalf of the original plaintiff has also fairly conceded that the

original plaintiff has never sought any declaration declaring the

Town Planning Scheme No. 5 (unbuilt area) had lapsed and/or

deemed to have lapsed in view of Section 203(6) of the Act,

1973. He has also stated at the Bar that the plaintiff is not

challenging the sanctioned Scheme nor is submitting that the

Town Planning Scheme No. 5 had lapsed and/or deemed to

have lapsed. However, it is the case on behalf of the original

plaintiff that he remained in possession of the suit land and

therefore, the plaintiff is entitled to the permanent injunction

restraining the defendants – officers of the Municipality from

disturbing his possession. Shri Neeraj Kumar Jain, learned

Senior Advocate appearing on behalf of the plaintiff has also

relied upon the deposition of DW­1 – Sher Singh in support of the case on behalf of the plaintiff that the plaintiff was in

possession since 1985 also.

7.2 However, the deposition of DW­1 – Sher Singh, officer of the

Municipal Committee is required to be read as a whole. If the

deposition of DW­1 is read as a whole, in the cross­

examination, he specifically stated that the development work of

the area has been completed. He has also stated in the cross­

examination that the plaintiff has again got possession and now

the plaintiff has installed wire poles on the side of the way.

Therefore, it was the specific case on behalf of the Municipality

that the plaintiff re­entered the suit land and again got the

possession. It is to be noted that the same is borne out of the

cross­examination of DW­1. At this stage, document i.e., exhibit

D­5 dated 13.12.1983 addressed by the original plaintiff to the

Administrator Municipality is required to be referred to. In the

said communication, it was stated by original plaintiff that

though the land shown as taken under open space etc. is 25%

under T.P. Scheme, but in fact there is a calculation mistake

and this area is more if calculated on percentage basis.

Therefore, in fact there is a categorical admission on the part of

the plaintiff that the possession at least to the extent of 25%

under the Town Planning Scheme was taken over. The only dispute raised was with respect to the calculation mistake. The

plaintiff is bound by such admission. Therefore, even from

communication dated 13.12.1983, it can be seen that

possession of the suit land reserved for public park under the

sanctioned Town Planning Scheme was already taken over. The

aforesaid is now required to be considered along with the

statement of DW­1 that the plaintiff re­entered the plot/land

and again got the possession and started putting up

fencing/wire poles. Therefore, the learned Trial Court as well as

the High Court have materially erred in passing the decree of

permanent injunction restraining defendants from disturbing

the possession of the plaintiff.

8. At the cost of repetition, it is observed that the suit land in

question is reserved for a public park under the Town Planning

Scheme sanctioned under the provisions of the Act, 1973. No

declaration is sought that 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 under Section 203(6) of the Act,

1973. Therefore, we refrain from making any observations that

the Town Planning Scheme under Section 203, more

particularly, under Section 203(6) of the Act, 1973 has lapsed

and/or deemed to have lapsed. Therefore, the question, namely, whether on non­compliance of Section 203(6) of the Act, 1973,

the Scheme shall lapse and/or deemed to have lapsed is kept

open.

9. In view of the above and once the suit land in question is

reserved for a public park under the sanctioned Town Planning

Scheme and as observed hereinabove, the possession of land in

question was taken over and the same has been developed as a

public park, as such the land vests in the Municipal Committee

and therefore, the plaintiff shall not be entitled to the

decree/relief of permanent injunction. In any case as observed

hereinabove the possession of the suit land was already taken

over for the public purpose for which the same was reserved

under the Town Planning Scheme. Both, the learned Trial

Court as well as the High Court have committed a serious error

in passing the decree of permanent injunction calling for

interference in these appeals.

10. Now so far as the contempt proceedings initiated by the plaintiff

is concerned, at the outset it is required to be noted that the

order of status quo is required to be considered with respect to

the context in which it was passed. The dispute was with

respect to the possession and even the learned Trial Court also

granted the injunction with respect to the possession.

Therefore, the order of status quo granted by this Court is required to be considered with respect to the possession only.

Once as observed hereinabove, the possession of the suit land

in question was already taken over and the suit land vested in

Municipal Committee and thereafter, if any improvement has

made and/or construction is put up on suit land, it cannot be

said that the same can be said to be in violation of order of

status quo. It is required to be noted that the land is used by

the Municipality for a public purpose i.e., for a public park and

the local people are using the same. Therefore, in the facts and

circumstances of the case and for the reasons stated

hereinabove we deem it proper to close the contempt

proceedings.

11. In view of the above discussion and for the reasons stated

above, the present appeals succeed. The impugned judgment

and order passed by the High Court in Regular Second Appeal

No. 115/1994 is hereby quashed and set aside. The judgment

and decree of permanent injunction granted by the learned Trial

Court is also quashed and set aside. The judgment and order

passed by the First Appellate Court is hereby restored.

Consequently, the original suit filed by the original plaintiff

stands dismissed. The contempt proceedings stand disposed of.

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

to costs.

………………………………….J. [M.R. SHAH]

NEW DELHI; ………………………………….J. SEPTEMBER 06, 2022 [B.V. NAGARATHNA]