Full Judgment Text
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
Signature Not Verified
Digitally signed by
NIRMALA NEGI
Date: 2022.09.06
18:55:57 IST
Reason:
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
J U D G M E N T
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]