Municipalities & Local Governments -
Land & Property - Constitution of India, 1950, art. 14 - Haryana
Municipal Act, 1973, s. 203(1)(c) - Punjab Municipal Act, 1911, ss. 192,
192(1)(c) - Land for widening of road - Scheme - Legality - Held, it
was clear that objections were specifically rejected - Only thing which
Municipal Committee wanted was to check plan of Sepal Hotel as
sanctioned by Municipal Committee at spot and after inspecting spot
survey plan be corrected - It was clear from above that main objection
was for payment of compensation which was rejected on ground that land
under road and parks does not form more than 25% and, therefore, in view
of s. 192 of the Act no compensation was payable - Demarcation report
had altered position - As per demarcation Report of Patwari, 30 feet
road as set out in Town Planning Scheme does not exist in revenue record
- Once that be position, how Scheme would be implemented was poser - HC
had remarked that appellant managed to get wrong report - What was
correct position at site had also not come on record - Once HC observed
that there was an error in demarcation Report, more appropriate action
was to order fresh demarcation - Exercise should be carried out within
time framed.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4678/ 2014
[Arising out of Special Leave Petition (Civil) No. 12025 of
2006]
M/s. Sepal Hotel Pvt. Ltd. …. Appellant (s)
Versus
State of Punjab & Anr. …. Respondent
Dated;April 22, 2014
A.K. SIKRI, J.
1.Leave granted.
2.The origin of the lis in this appeal can be treated to earlier
proceedings which started sometime in 1970's and culminated in
the judgment of this Court in the case of Yogender Pal & Ors. v.
Municipality, Bhatinda reported in 1994 (5) SCC 709. We would
revert back to the said case with detailed discussion at the
appropriate stage, Suffice it is to mention at the stage that vide
the said judgment this Court declared Section 192 (1) (c) of the
Punjab Municipal Act {This provision conforms to Section 203 (1)
(c) of the Haryana Municipal Act} as void, being violative of Article
14 of the Constitution of India. However, overruling of the said
provision was prospective i.e. from the date of the decision
rendered on 15.7.1994.
3.Coming to the facts of the present case, Shri Som Chand Katia
and Shri Vijay Katia were original owners of land measuring 44
bighas 6 biswas comprised in Khasra No. 2001 situated at
Bhatinda. Out of the said land a part comprising of 255 fts x 450
fts was licensed to the appellant for construction of a 3 Star Hotel
on 15.7.1974. The appellant applied for grant of layout plan for
the construction of a hotel, which was granted by the Municipal
Committee. After the receipt of the layout plan the appellant
herein constructed the hotel on the said land. Since then the hotel
has been in existence and running its business therefrom. The
total area of the hotel was covered by a boundary wall and is in
possession of the appellant herein.
4.The Municipal Committee framed a new Scheme i.e Town
Planning Scheme No. 2, Part I, in the year 1975. This Scheme was
sanctioned by the State Government. As per the said Scheme, a
part of the land covered by the Appellant's hotel was required for
the construction/widening of the road. The Municipal Committee
issued a notice dated 7.6.1978 to the appellant herein directing
the appellant to demolish the boundary wall of the hotel and
transfer that part of the land to the Municipal Committee.
Apprehending an action at the behest of the Municipal Committee,
the appellant filed a suit for grant of injunction against execution
of the aforesaid notice. The Counsel for the Committee appeared
and gave an undertaking not to demolish the boundary wall and
based on this statement the said suit was withdrawn on
5.12.1979. However, the Municipal Committee again threatened
to demolish the boundary wall, thereby impelling the appellant to
file another suit, being No. 386 dated 18.12.1979. This suit was
decreed on 11.12.1981 with an observation that Town Planning
Scheme qua the appellant having not finalised, therefore, the land
belonging to the appellant could not vest in the Municipal
Committee.
5.At the same time, the appellant also challenged the vires of
Section 192 (1) (c) of the Municipal Act by way of a Writ Petition
No. 226 of 1979. The said Writ Petition was disposed of by a
Division Bench of Punjab and Haryana High Court on 16.1.1980
alongwith other connected matters whereby it directed the
Committee to consider the objections of affected landowners
under the provisions of Section 192 (1) (c) of the Act which would
be filed within 12 weeks before the Committee and the Committee
would then proceed to consider the said objection and dispose
them of within three months. Thereafter, it could make a
recommendation to the Government in accordance with provisions
of Section 192 of the Act. It was made clear that till the objections
are decided, the rights of the landowners would not be affected.
However, it was stated that if the objections were rejected the
provisions of Scheme shall become final and shall be forwarded to
the State Government for amending the Scheme in accordance
with law.
6.As per the directions, the appellant filed its objections before the
Municipal Committee, stating therein that as per the
measurement at the spot, the road which starts from 40 feet wide
Namdev Road and proposes to connect 30 feet wide road at the
end of the hotel boundary and which passes through Khasra No.
2001 is at a distance of 275 feet but was wrongly shown in the
Scheme at 224 feet. So, it was requested that the said
discrepancy in the Scheme be corrected so that there is no
dispute. The above objections of the appellant were considered by
the Municipal Committee and a Resolution No. 306 dated 9.7.1980
was passed. The relevant portion concerning the objections of the
petitioner in Item No. 11 is as under:
“Item No. 11:
Vide this objection, the objector had stated that for
joining the 30 feet and 40 feet wide road, the length
of the road has been shown as per the Scheme as 224
feet whereas at the spot the length is 275 feet.
Therefore, it was decided that the plan of the Sepal
Hotel, which has been sanctioned by the Municipal
Committee be checked at the site and after inspecting
the site as per the objections raised by the objector,
the survey plan of the one part be corrected. The
aforesaid resolution was signed by Shri Gopal Singh,
President, Municpal Committee, Bathinda, Mukhtiar
Singh, Divisional Town Planner, Bathinda and Shri L.D.
Gupta, Executive Officer, Municipal Committee,
Bathinda.
7.As per the appellant, after passing of the above Resolution
dated 9.7.1980, no further action was taken by the Municipal
Committee to amend the Scheme nor any communication was
received by the appellant conveying its decision by the Municipal
Committee with regard to the objections.
8.In the meantime, the suit bearing no. 386 of 1979 was decreed
on 11.12.1981, wherein it was observed by the learned Senior
Sub-Judge that the Town Planning Scheme qua the appellant had
not become final and, therefore, the subject land cannot vest in
the Municipal Committee and the disputed land on which
construction exists cannot be said to belong to the Municipal
Committee.
9.The appellant filed another Civil Suit bearing no. 641/ 1983
against the Municipal Committee for permanent injunction not to
demolish four rooms, which are in the premises of the hotel itself.
However, the said suit was dismissed and the appellant herein
filed an appeal before the learned District Judge, Bhatinda, which
was withdrawn upon the statements of the Counsel for the
parties. It was agreed that demarcation of the disputed rooms be
made in the presence of the parties to verify as to whether the
same are part of the street or not. The demarcation of the
disputed rooms was to be made in the presence of the parties.
Municipal Committee was restrained to demolish the rooms till
demarcation is completed.
10.Pursuant to the above order, Shri Hem Raj, Patwari, Halqua
carried out the demarcation of the disputed rooms and submitted
his report dated 19.8.1986 to the Tehsildar on the basis of which
an order was passed wherein it was held that there exists no
passage or roads in Khasra No. 2001 in the revenue report. In the
meantime, the provisions of Section 192 (1) (c) of the Act were
interpreted by this Court in the case of Yogendra Pal (supra) in
which Section 192 (1) (c) providing vesting of land in the
Municipal Committee was declared ultra vires and, therefore,
these provisions were struck down w.e.f. the judgment i.e.
15.7.1994.
11.However, the matter did not rest there. The appellant received
notice dated 9.9.2003 from the successor of the Municipal
Corporation- Respondent No. 2, directing the appellant to leave
the street within 10 days in terms of the same Town Planning
Scheme No. 2, Part I, framed in the year 1977. The appellant sent
reply dated 16.9.2003 which was followed by another reply dated
27.9.2003. It is the case of the appellant that without considering
these replies, Respondent No. 2 issued notice dated 9.10.2004 to
the appellant under Sections 246 and 246A of the Act seeking to
leave 30 feet street as per the Town Planning Scheme No. 2, Part I,
on or before 13.10.2003. The appellant replied to that notice on
13.10.2004 alleging that the proposed action was illegal and
amounted to the abuse of powers. Immediately thereafter the
appellant also filed the Writ Petition No. 16377 of 2004 on
13.10.2004 in the High Court seeking quashing of the said notice
dated 9.10.2004 and that the Town Planning Scheme No. 2, Part I
be declared as lapsed due to non-implementation. As per the
appellant, this planning Scheme was not implemented even after
30 years of framing and had, therefore, lapsed. However, the
appellant withdrew this writ petition on 30.11.2004 with liberty to
file fresh petitions. Fresh petition No. 19790 of 2004 was filed on
15.12.2004 challenging the said notice dated 9.5.2004. This Writ
Petition has been dismissed by the High Court vide judgment
dated 2.5.2006. That judgment is impugned by filing Special
Leave Petition under Article 136, out of which present appeal
arises.
12.As pointed out above main contention of the appellant before
the High Court was that as the Scheme was not implemented for
the last more than 30 years and objections filed by the appellant
had not been decided, the said Scheme had lapsed and
Respondent No. 2 had no authority to implement the same. This
contention has not found favour with the High Court. The High
Court took note of the fact that the appellant had earlier filed Civil
Writ No. 226 of 1979 in the said court challenging that very
Scheme. That writ petition along with many other similar writ
petitions, were disposed of holding that the Scheme under
challenge was rightly promulgated after passing an appropriate
Resolution. Matter was remitted to Respondent No. 2 to decide
objections, if any filed by the appellant and others similarly
situated persons, with clear direction that in case the objections
are rejected, the provision of the Scheme shall become final.
13.The High Court further noted that in order to dispose of
objections filed by various individuals, matter was put up before
the Municipal Committee on 9.7.1980. Many objections were
disposed of including Objection Nos. 10 and 11 which were filed
by the Managing Director of the appellant and the appellant
respectively. In so far as objections of the appellant are
concerned, it was ordered that to ascertain length of road left in
the Scheme, measurement be done at the spot. Therefore, the
only dispute which remained was with respect to measurement of
the property at the spot. As such the appellant was not right in
contending that its objections were not disposed of and were still
pending. The High Court also went through the record and
discussed the same. On that basis, the High Court has further
observed that some demarcation was got done by the appellant
from the Revenue Department on the basis of aks – Shajra. In that
report, it was observed that there is no street in Khasra No. 2001,
in which Hotel of the appellant is situated. However, the High
Court chose to discard that Report got prepared by the appellant,
giving following reasons
“The appellant is now placing reliance upon the said
demarcation report to say that there existed no street
which, as per allegation of respondent no. 2 has been
encroached by the appellant. No benefit of that report
can be extended to appellant, as the demarcation was
not done keeping in view the Town Planning Scheme.
Report seems to have been made on wrong facts.
Admittedly in revenue record, the street is not in
existence as the same has been carved out only in the
approved Scheme, which is under challenge.
Thereafter, when notice was sent to the petitioner to
remove encroachment from the street, he again tried
to delay the matter and subsequent thereto, filed the
present writ petition”.
14.On the basis of these facts as recorded by the High Court, it
came to the conclusion that the challenge to the Scheme had
attained finality and the objections were also considered and
taken to logical conclusion. Nothing remained thereafter and it
could not be said that the Scheme had not become final and
cannot be implemented now. To recapitulate in brief, the High
Court has in the impugned order recorded that:
i. The demarcation report seems to be made on
wrong facts and that in the revenue record there was
no street.
ii. It was further wrongly recorded that the earlier
writ petition had been dismissed by the High Court on
16.1.1980.
iii. With regard to the appellate order dated
20.5.1986, it was held that pursuant to the said order,
the Managing Director of the Petitioner “managed to
get a wrong report”, i.e. the demarcation report dated
19.8.1986.
iv. Finally, the High Court held that the Scheme had
attained finality in view of the judgment of the Civil
Court and the appeal had been dismissed as
withdrawn and, therefore, it was not open to the
appellant to say that the Scheme had not become
final and could not be implemented after a period of
30 years.
These are the reasons given by the High Court for dismissing the
writ petition.
15.Before we proceed to record the submissions of the counsel on
either side, we would like to point out the ratio of Yogender Pal
(supra) mention to which has been made in the beginning. As
pointed out above that was a case where the vires of Section 192
(1) (c) of the Punjab Municipal Act were challenged as violative of
Article 14 of the Constitution of India and the appellants therein
succeed in their challenge. Aforesaid provision was held to be
unconstitutional as under this provision, to implement a Scheme
land of the landowner could be taken away without even paying
any compensation. At the same time, it is noteworthy that the
overruling of this provision was made prospective i.e. from the
date of the decision rendered on 15.7.1994.
16.It was noticed in para 29 that various lands had been acquired
for Town Planing Schemes and “in many cases the Schemes have
also been completed.” In view of the said fact, it was held that it
would not be in public interest to unsettle the settled state of
affairs as it would create a total chaos. The court was, therefore,
mindful of the fact that there would be cases where the Schemes
had been implemented and constructions etc. had already been
carried out in terms of the Scheme. Those Schemes which were
already carried out were, thus, protected.
17.It is, in this scenario the moot question which falls for
consideration is as to whether in the present case the Scheme in
question had been finalised or not.
18.When the Scheme in the present case were framed in the year
1975 to implement the same, the Municipal Committee issued
notice to the appellant on 7.6.1978 for demolition of boundary
wall of the hotel and transfer the same to the Committee, which
was required for the road. The appellant challenged the same by
filing the writ petition in the High Court. In fact various Town
Planning Schemes framed by the Municipal Committees of
Amritsar and Bhatinda were the subject matter of challenge
before the High Court by way of various Civil Writ Petitions. These
were disposed of by a common order dated 16.1.1980. It was
made clear that the provisions of the Scheme in so far as they
affect the rights of the writ petitioners, will not be taken to be final
and the said provisions will only become final after the objections
filed by the appellants are considered by the Committees and
disposed of.
19.Thus, a conjoint reading of the judgment in Yogender Pal
(Supra) decided by this Court as well as judgment dated
16.1.1980 by which aforesaid writ petitions were decided by the
High Court would make it clear that in those cases where the
Scheme had been finalised, they remain protected and
Respondent No. 2 shall have right to go ahead with the
implementation of the said Scheme.
20.It is the common case of the parties that the High Court had
permitted the appellants and others to file their objections and the
Scheme was to become final only after the objections were
considered by the Committee and disposed of. However, whereas
Respondent No. 2 maintains that the objections of the appellants
were disposed of/ rejected, the appellant argues otherwise and it
is pleaded that the matter remained in limbo without any decision
on its objections. The outcome of the present appeal would
depend upon this aspect.
21.In his endeavour to demonstrate that no final decision was
taken on the objections of the appellant Mr. Nidhesh Gupta,
learned Senior Counsel for the appellant submitted that these
objections were considered on 30.6.1980 and 8.7.1980. A perusal
of the proceedings dated 30.6.1980 makes it clear that it was
decided “that verification be done at the spot and in case there is
any mistake in the plan of the Scheme, the same be got rectified.”
The objection regarding the demarcation was rejected by placing
reliance on Section 192 of the Punjab Municipal Act, 1911, which
permitted land to the extent of 25% to be taken without payment
of compensation and additional 10% to be taken after payment of
compensation.
22.In the proceeding dated 9.7.1980 the claim of the appellant for
compensation was noticed and the said objection was rejected.
However, it was also decided that the plan of Sepal Hotel as
sanctioned by the Municipal Committee would be checked and
after inspecting the spot, survey plan would be corrected in view
of the objection of the objector.
23.In the meantime, Civil Suit No. 386 of 1979 filed by the
appellant herein was also decided. A perusal of the judgment
dated 11.12.1981 in the suit makes it clear that the contention of
the counsel for the appellant herein that the objections had to be
considered, was not disputed by the counsel of the Municipal
Committee and “he conceded that the Scheme framed by the
Municipal Committee has not yet become final.” It was also held
that “it is obvious from copies of resolution that the Municipal
Committee is seized of the objections filed by the plaintiff.”
24.As per Mr. Gupta, this makes it clear that even after the
resolutions of 30.6.1980 and 8.7.1980, the objections of the
plaintiff were, admittedly, yet to be decided and the Scheme had
not yet become final.
25.It is further submitted that since in spite of the aforesaid
orders, the Municipal Committee was seeking to pursue the action
under the Scheme without deciding the objections, another Suit
No. 64 of 23.12.1983 was filed by the appellant herein. After the
suit had been dismissed, the appellate court passed a consent
order dated 20.5.1986 wherein it was agreed that the appeal will
be dismissed as withdrawn and an application for demarcation will
be submitted within a month. The Municipal Committee agreed
that demarcation shall be made in the presence of the parties and
they will not demolish the disputed rooms till the demarcation was
done. The appeal was dismissed as withdrawn in view of the said
statement.
26.Thereafter, a demarcation was done on 19.8.1986. A perusal of
the same makes it clear that it was noticed therein that there was
no street falling in the concerned Khasra number as per the
revenue record and, therefore, the street could not be
demarcated.
27.Mr. Gupta, questioned the correctness of the finding of the
impugned order by making the following submissions:
i. The order dated 16.1.1980 categorically records
that the provisions of the Scheme in so far as they
affect the rights of the petitioners will not be final and
the provisions will only become final after the
objections filed by the appellant are considered by
the committee and disposed of.
ii. A perusal of the proceedings dated 30.6.1980
and 8.7.1980 makes it clear that the objections were
still pending and demarcation etc. had still to be
carried out.
iii. This fact stood admitted in the order dated
11.12.1981 wherein the counsel for the Municipal
Committee had conceded that the Scheme framed
had not yet become final and that the Municiapl
Committee was seized of the objections.
iv. It is submitted that after the aforesaid date, the
only progress was the report dated 19.8.1986, as per
which report the demarcation of the street could not
be done since there was no street as per the revenue
record. Assuming there was an error in the said
demarcation, at best a fresh demarcation could have
been ordered. In any event, it could not be said that
the Scheme had been finalised, as recorded by the
High Court.
v. A perusal of the order passed by the appellate
court dated 20.5.1986 also makes it absolutely clear
that it was agreed that there will no demolition till the
demarcation was done. Accordingly, without any
demarcation having admittedly been done thereafter,
there was no question of the Scheme having become
final.
vi. That the aforesaid facts are further reinforced for
a consideration of the agenda item dated 27.12.1995,
pursuant to the judgment of this court. A perusal of
the resolution makes it clear that the Municipal
Committee had “decided that the Schemes which are
pending are hereby dropped by the Municipal Council,
Bathinda and the office is directed to act accordingly.”
Thus, all pending Schemes stand dropped as per the
aforesaid resolution.
28.Per contra, Mr. Mahabir Singh, learned Senior Counsel
appearing for Municipal Corporation, Bhatinda (Respondent No. 2)
submitted that the judgment in the case of Yogender Pal had no
applicability as the law declared therein was made prospective by
observing that it would not be in public interest to unsettle the
settled state of affairs. It was, thus, a case of prospective
overruling. He further submitted that as per the judgment dated
16.1.1980 of the High Court, the provisions of the Scheme were
not to become final unless the objections filed by the appellants
are disposed of by the Committee. A fortiorari, the Scheme was to
attain finality if the objections were to be rejected and that was
specially observed by the High Court. Countering the submissions
that the objections had not been decided/ rejected Mr. Mahabir
Singh argued that these objections were specifically rejected by
the Municipal Committee way back on 30.6.1980 and on 9.7.1980.
He further submitted that this rejection was never challenged by
the appellant. Instead he preferred a civil suit for permanent
injunction which was, however, dismissed on 4.11.1985. A reading
of this order would reveal that the objections were duly
considered by the Committee and the same were dismissed. Even
appeal was filed against this judgment and decree of the trial
court but the appellant withdrew the same and, therefore, finding
of the trial court that objections were rejected had become final.
His further plea was that these are pure finding of facts which
have been arrived at against the appellant who has dragged on
the matter for last 30 years after successfully encroaching upon
the land which was duly carved under Town Planning Scheme for
public street. He further submitted that the appellant had
suppressed all these proceedings including filing of Civil Writ No.
19812 of 1996 which was subsequently withdrawn by him.
29.We have given our anxious thought to the aforesaid
submissions of learned Counsel for the parties. It is a common
case of the parties that the judgment in Yogender Pal (Supra) is
prospective i.e from the date of judgment which is 15.7.1994. It is
also a common case of the parties that the Scheme in question
was framed much earlier. Thus, as pointed out above, the only
issue is as to whether the Scheme had attained finality and
answer to this question depends upon another issue viz. whether
objections of the appellant to the Scheme were disposed of by
Respondent No. 2 or not, in compliance with directions dated
19.6.1980 of the High Court.
30.It is borne from the record that these objections were duly
considered on 30.6.1980 and 8.7.1980. In the proceedings of
30.6.1980 objections of the appellant regarding demarcation were
rejected. At the same time it was decided that verification be done
at the spot and in case there is any mistake in the plan of the
Scheme, the same be got rectified. It was so done. Thereafter,
matter came up before the Committee on 9.7.1980 and after
considering the entire matter the Committee specifically rejected
the objections of the appellant. Operative portion of the minutes
of the meeting dated 30.6.1980 as well as 9.7.1980 are as under:
“ Minutes of the Meeting dated 30.6.1980:
Shri Som Chand Katia, Writ Petitioner No. 226/79 is
present. He has stated that his total land measuring
31550 sq. yards is covered under the Scheme and his
land to the extent of 35% has been taken under the
Scheme and some of his land thus goes waste. The
objector has been asked to get the demarcation of
the total land at the spot and produce the plan in the
office of Municipal Committee by 7.7.1980 and should
also get the spot inspection of the land so that in spot
inspection it could be verified as to how much of his
land falls under the Scheme. In case any area more
than 25% of his total land comes under the park/
road, the same may be adjusted. The objector has
stated that he is not ready to give any land for road or
park without compensation. Thus objection of the
objector is rejected because under Section 192 of the
Punjab Municipal Act, 1911 land to the extent of 25%
without payment of compensation and an additional
10% with payment of compensation can be taken for
the purpose or roads and parks under the proposed
Town Planning Scheme.”
Minutes of the Meeting dated 9.7.1980
“As per decision dated 30.6.1980, the objector Shri
Som Chand Katia was required to get the
measurement of his land at the spot. He has produced
a photostat copy of revenue record relating to Khasra
No. 2001 which has been attested by Halqa Patwari.
As per the same, their total area in the Scheme comes
to 44300 sq. yards. The plea of objector is that the
Sepal Hotel whose area is 12750 sq. yards has
different out of the total area and the land for roads
and parks be taken out of the remaining area as per
law. But he should be given compensation of the same
as well. On perusal of record, it is found that sanction
of building plan of Sepal Hotel has also been given to
them who were the original owners of total land.
Therefore, the Sepal Hotel had also been adjusted in
the Scheme. Therefore, the Sepal Hotel had also been
adjusted in the Scheme. Therefore, it is decided that
the plot of Sepal Hotel cannot be treated to be
different from the land belonging to the said family
under the purposes of Scheme and in this way out of
total ownership land, the land under the road and
parks does not form more than 25% which is as per
law, therefore, this objection is rejected.
Therefore, in this objection, the objector has written
that the length of road joining the 30' x 40' wide
roads has been shown to be 224 under the Scheme
whereas the sport the same is 275. therefore, it is
decided that plan of the Sepal Hotel as sanctioned by
Municipal Committee be checked at the spot and
after inspecting the spot survey plan be got corrected
in view of the above objection of objector.”
31. It is clear from the above that objections were specifically
rejected. Only thing which the Municipal Committee wanted was
to check the plan of Sepal Hotel as sanctioned by the Municipal
Committee at the spot and after inspecting the spot the survey
plan be corrected. It is also clear from the above that main
objection was for payment of compensation which was rejected on
the ground that the land under the road and the parks does not
form more than 25% and, therefore, in view of Section 192 of the
Act no compensation was payable.
32.Learned Senior Counsel for the respondent is right in his
submission that these orders were not challenged. Instead, the
appellant filed Civil Suit No. 614 of 1983. However, this suit was
dismissed by the trial court. The appellant preferred appeal there
against. This appeal was dismissed as withdrawn. It was the
contention of the appellant that this appeal was withdrawn in view
of consent order dated 20.5.1986 wherein it was agreed that an
application for demarcation will be submitted within a month and
demarcation shall be made in the presence of the parties and till
then respondent shall not demolish the disputed rooms. However,
from this the appellant cannot be allowed to contend that
objections had not been decided. The at the most, issue of
demarcation was to be settled as the appellant was raising this
issue time and again. However, it is accepted by the appellant
itself that demarcation was done on 19.8.1986.
33.From the aforesaid, we cannot agree with the contention of the
appellant that objections of the appellant were still pending. At
the same time it becomes clear that the only issue which
remained was about the demarcation and demarcation was also
carried out and the Patwari submitted his Report dated 19.8.1986.
34.Having said so, what we find is that this demarcation report
has altered the position. As per the demarcation Report of the
Patwari, 30 feet road as set out in the Town Planning Scheme does
not exist in the revenue record. Once that be the position, how the
Scheme would be implemented is the poser. The High Court has
remarked that the appellant managed to get a wrong Report. At
the same time, what is the correct position at the site has also not
come on record. In a situation like this, we are of the opinion that
once the High Court observed that there was an error in the
demarcation Report, more appropriate action was to order fresh
demarcation.
35.In view of the above though we reject all the contentions of the
appellant, at the same time we modify the order of the High Court
to the extent that there shall be fresh demarcation done at the
site through Patwari. On the basis of said demarcation, if it is
found that in the revenue record 30 feet road exists, that area will
be clearly demarcated and delineated, and thereafter the Scheme
would be implemented. The aforesaid exercise shall be carried out
within a period of two months from today. The appellant shall be
associated in the exercise of demarcation. Once this demarcation,
is done the parties shall abide by the same.
36.Appeal disposed of in the aforesaid terms.
...….........................J.
[Surinder Singh Nijjar]
…...........................J.
[A.K. Sikri]
New Delhi
April 22, 2014
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4678/ 2014
[Arising out of Special Leave Petition (Civil) No. 12025 of
2006]
M/s. Sepal Hotel Pvt. Ltd. …. Appellant (s)
Versus
State of Punjab & Anr. …. Respondent
Dated;April 22, 2014
A.K. SIKRI, J.
1.Leave granted.
2.The origin of the lis in this appeal can be treated to earlier
proceedings which started sometime in 1970's and culminated in
the judgment of this Court in the case of Yogender Pal & Ors. v.
Municipality, Bhatinda reported in 1994 (5) SCC 709. We would
revert back to the said case with detailed discussion at the
appropriate stage, Suffice it is to mention at the stage that vide
the said judgment this Court declared Section 192 (1) (c) of the
Punjab Municipal Act {This provision conforms to Section 203 (1)
(c) of the Haryana Municipal Act} as void, being violative of Article
14 of the Constitution of India. However, overruling of the said
provision was prospective i.e. from the date of the decision
rendered on 15.7.1994.
3.Coming to the facts of the present case, Shri Som Chand Katia
and Shri Vijay Katia were original owners of land measuring 44
bighas 6 biswas comprised in Khasra No. 2001 situated at
Bhatinda. Out of the said land a part comprising of 255 fts x 450
fts was licensed to the appellant for construction of a 3 Star Hotel
on 15.7.1974. The appellant applied for grant of layout plan for
the construction of a hotel, which was granted by the Municipal
Committee. After the receipt of the layout plan the appellant
herein constructed the hotel on the said land. Since then the hotel
has been in existence and running its business therefrom. The
total area of the hotel was covered by a boundary wall and is in
possession of the appellant herein.
4.The Municipal Committee framed a new Scheme i.e Town
Planning Scheme No. 2, Part I, in the year 1975. This Scheme was
sanctioned by the State Government. As per the said Scheme, a
part of the land covered by the Appellant's hotel was required for
the construction/widening of the road. The Municipal Committee
issued a notice dated 7.6.1978 to the appellant herein directing
the appellant to demolish the boundary wall of the hotel and
transfer that part of the land to the Municipal Committee.
Apprehending an action at the behest of the Municipal Committee,
the appellant filed a suit for grant of injunction against execution
of the aforesaid notice. The Counsel for the Committee appeared
and gave an undertaking not to demolish the boundary wall and
based on this statement the said suit was withdrawn on
5.12.1979. However, the Municipal Committee again threatened
to demolish the boundary wall, thereby impelling the appellant to
file another suit, being No. 386 dated 18.12.1979. This suit was
decreed on 11.12.1981 with an observation that Town Planning
Scheme qua the appellant having not finalised, therefore, the land
belonging to the appellant could not vest in the Municipal
Committee.
5.At the same time, the appellant also challenged the vires of
Section 192 (1) (c) of the Municipal Act by way of a Writ Petition
No. 226 of 1979. The said Writ Petition was disposed of by a
Division Bench of Punjab and Haryana High Court on 16.1.1980
alongwith other connected matters whereby it directed the
Committee to consider the objections of affected landowners
under the provisions of Section 192 (1) (c) of the Act which would
be filed within 12 weeks before the Committee and the Committee
would then proceed to consider the said objection and dispose
them of within three months. Thereafter, it could make a
recommendation to the Government in accordance with provisions
of Section 192 of the Act. It was made clear that till the objections
are decided, the rights of the landowners would not be affected.
However, it was stated that if the objections were rejected the
provisions of Scheme shall become final and shall be forwarded to
the State Government for amending the Scheme in accordance
with law.
6.As per the directions, the appellant filed its objections before the
Municipal Committee, stating therein that as per the
measurement at the spot, the road which starts from 40 feet wide
Namdev Road and proposes to connect 30 feet wide road at the
end of the hotel boundary and which passes through Khasra No.
2001 is at a distance of 275 feet but was wrongly shown in the
Scheme at 224 feet. So, it was requested that the said
discrepancy in the Scheme be corrected so that there is no
dispute. The above objections of the appellant were considered by
the Municipal Committee and a Resolution No. 306 dated 9.7.1980
was passed. The relevant portion concerning the objections of the
petitioner in Item No. 11 is as under:
“Item No. 11:
Vide this objection, the objector had stated that for
joining the 30 feet and 40 feet wide road, the length
of the road has been shown as per the Scheme as 224
feet whereas at the spot the length is 275 feet.
Therefore, it was decided that the plan of the Sepal
Hotel, which has been sanctioned by the Municipal
Committee be checked at the site and after inspecting
the site as per the objections raised by the objector,
the survey plan of the one part be corrected. The
aforesaid resolution was signed by Shri Gopal Singh,
President, Municpal Committee, Bathinda, Mukhtiar
Singh, Divisional Town Planner, Bathinda and Shri L.D.
Gupta, Executive Officer, Municipal Committee,
Bathinda.
7.As per the appellant, after passing of the above Resolution
dated 9.7.1980, no further action was taken by the Municipal
Committee to amend the Scheme nor any communication was
received by the appellant conveying its decision by the Municipal
Committee with regard to the objections.
8.In the meantime, the suit bearing no. 386 of 1979 was decreed
on 11.12.1981, wherein it was observed by the learned Senior
Sub-Judge that the Town Planning Scheme qua the appellant had
not become final and, therefore, the subject land cannot vest in
the Municipal Committee and the disputed land on which
construction exists cannot be said to belong to the Municipal
Committee.
9.The appellant filed another Civil Suit bearing no. 641/ 1983
against the Municipal Committee for permanent injunction not to
demolish four rooms, which are in the premises of the hotel itself.
However, the said suit was dismissed and the appellant herein
filed an appeal before the learned District Judge, Bhatinda, which
was withdrawn upon the statements of the Counsel for the
parties. It was agreed that demarcation of the disputed rooms be
made in the presence of the parties to verify as to whether the
same are part of the street or not. The demarcation of the
disputed rooms was to be made in the presence of the parties.
Municipal Committee was restrained to demolish the rooms till
demarcation is completed.
10.Pursuant to the above order, Shri Hem Raj, Patwari, Halqua
carried out the demarcation of the disputed rooms and submitted
his report dated 19.8.1986 to the Tehsildar on the basis of which
an order was passed wherein it was held that there exists no
passage or roads in Khasra No. 2001 in the revenue report. In the
meantime, the provisions of Section 192 (1) (c) of the Act were
interpreted by this Court in the case of Yogendra Pal (supra) in
which Section 192 (1) (c) providing vesting of land in the
Municipal Committee was declared ultra vires and, therefore,
these provisions were struck down w.e.f. the judgment i.e.
15.7.1994.
11.However, the matter did not rest there. The appellant received
notice dated 9.9.2003 from the successor of the Municipal
Corporation- Respondent No. 2, directing the appellant to leave
the street within 10 days in terms of the same Town Planning
Scheme No. 2, Part I, framed in the year 1977. The appellant sent
reply dated 16.9.2003 which was followed by another reply dated
27.9.2003. It is the case of the appellant that without considering
these replies, Respondent No. 2 issued notice dated 9.10.2004 to
the appellant under Sections 246 and 246A of the Act seeking to
leave 30 feet street as per the Town Planning Scheme No. 2, Part I,
on or before 13.10.2003. The appellant replied to that notice on
13.10.2004 alleging that the proposed action was illegal and
amounted to the abuse of powers. Immediately thereafter the
appellant also filed the Writ Petition No. 16377 of 2004 on
13.10.2004 in the High Court seeking quashing of the said notice
dated 9.10.2004 and that the Town Planning Scheme No. 2, Part I
be declared as lapsed due to non-implementation. As per the
appellant, this planning Scheme was not implemented even after
30 years of framing and had, therefore, lapsed. However, the
appellant withdrew this writ petition on 30.11.2004 with liberty to
file fresh petitions. Fresh petition No. 19790 of 2004 was filed on
15.12.2004 challenging the said notice dated 9.5.2004. This Writ
Petition has been dismissed by the High Court vide judgment
dated 2.5.2006. That judgment is impugned by filing Special
Leave Petition under Article 136, out of which present appeal
arises.
12.As pointed out above main contention of the appellant before
the High Court was that as the Scheme was not implemented for
the last more than 30 years and objections filed by the appellant
had not been decided, the said Scheme had lapsed and
Respondent No. 2 had no authority to implement the same. This
contention has not found favour with the High Court. The High
Court took note of the fact that the appellant had earlier filed Civil
Writ No. 226 of 1979 in the said court challenging that very
Scheme. That writ petition along with many other similar writ
petitions, were disposed of holding that the Scheme under
challenge was rightly promulgated after passing an appropriate
Resolution. Matter was remitted to Respondent No. 2 to decide
objections, if any filed by the appellant and others similarly
situated persons, with clear direction that in case the objections
are rejected, the provision of the Scheme shall become final.
13.The High Court further noted that in order to dispose of
objections filed by various individuals, matter was put up before
the Municipal Committee on 9.7.1980. Many objections were
disposed of including Objection Nos. 10 and 11 which were filed
by the Managing Director of the appellant and the appellant
respectively. In so far as objections of the appellant are
concerned, it was ordered that to ascertain length of road left in
the Scheme, measurement be done at the spot. Therefore, the
only dispute which remained was with respect to measurement of
the property at the spot. As such the appellant was not right in
contending that its objections were not disposed of and were still
pending. The High Court also went through the record and
discussed the same. On that basis, the High Court has further
observed that some demarcation was got done by the appellant
from the Revenue Department on the basis of aks – Shajra. In that
report, it was observed that there is no street in Khasra No. 2001,
in which Hotel of the appellant is situated. However, the High
Court chose to discard that Report got prepared by the appellant,
giving following reasons
“The appellant is now placing reliance upon the said
demarcation report to say that there existed no street
which, as per allegation of respondent no. 2 has been
encroached by the appellant. No benefit of that report
can be extended to appellant, as the demarcation was
not done keeping in view the Town Planning Scheme.
Report seems to have been made on wrong facts.
Admittedly in revenue record, the street is not in
existence as the same has been carved out only in the
approved Scheme, which is under challenge.
Thereafter, when notice was sent to the petitioner to
remove encroachment from the street, he again tried
to delay the matter and subsequent thereto, filed the
present writ petition”.
14.On the basis of these facts as recorded by the High Court, it
came to the conclusion that the challenge to the Scheme had
attained finality and the objections were also considered and
taken to logical conclusion. Nothing remained thereafter and it
could not be said that the Scheme had not become final and
cannot be implemented now. To recapitulate in brief, the High
Court has in the impugned order recorded that:
i. The demarcation report seems to be made on
wrong facts and that in the revenue record there was
no street.
ii. It was further wrongly recorded that the earlier
writ petition had been dismissed by the High Court on
16.1.1980.
iii. With regard to the appellate order dated
20.5.1986, it was held that pursuant to the said order,
the Managing Director of the Petitioner “managed to
get a wrong report”, i.e. the demarcation report dated
19.8.1986.
iv. Finally, the High Court held that the Scheme had
attained finality in view of the judgment of the Civil
Court and the appeal had been dismissed as
withdrawn and, therefore, it was not open to the
appellant to say that the Scheme had not become
final and could not be implemented after a period of
30 years.
These are the reasons given by the High Court for dismissing the
writ petition.
15.Before we proceed to record the submissions of the counsel on
either side, we would like to point out the ratio of Yogender Pal
(supra) mention to which has been made in the beginning. As
pointed out above that was a case where the vires of Section 192
(1) (c) of the Punjab Municipal Act were challenged as violative of
Article 14 of the Constitution of India and the appellants therein
succeed in their challenge. Aforesaid provision was held to be
unconstitutional as under this provision, to implement a Scheme
land of the landowner could be taken away without even paying
any compensation. At the same time, it is noteworthy that the
overruling of this provision was made prospective i.e. from the
date of the decision rendered on 15.7.1994.
16.It was noticed in para 29 that various lands had been acquired
for Town Planing Schemes and “in many cases the Schemes have
also been completed.” In view of the said fact, it was held that it
would not be in public interest to unsettle the settled state of
affairs as it would create a total chaos. The court was, therefore,
mindful of the fact that there would be cases where the Schemes
had been implemented and constructions etc. had already been
carried out in terms of the Scheme. Those Schemes which were
already carried out were, thus, protected.
17.It is, in this scenario the moot question which falls for
consideration is as to whether in the present case the Scheme in
question had been finalised or not.
18.When the Scheme in the present case were framed in the year
1975 to implement the same, the Municipal Committee issued
notice to the appellant on 7.6.1978 for demolition of boundary
wall of the hotel and transfer the same to the Committee, which
was required for the road. The appellant challenged the same by
filing the writ petition in the High Court. In fact various Town
Planning Schemes framed by the Municipal Committees of
Amritsar and Bhatinda were the subject matter of challenge
before the High Court by way of various Civil Writ Petitions. These
were disposed of by a common order dated 16.1.1980. It was
made clear that the provisions of the Scheme in so far as they
affect the rights of the writ petitioners, will not be taken to be final
and the said provisions will only become final after the objections
filed by the appellants are considered by the Committees and
disposed of.
19.Thus, a conjoint reading of the judgment in Yogender Pal
(Supra) decided by this Court as well as judgment dated
16.1.1980 by which aforesaid writ petitions were decided by the
High Court would make it clear that in those cases where the
Scheme had been finalised, they remain protected and
Respondent No. 2 shall have right to go ahead with the
implementation of the said Scheme.
20.It is the common case of the parties that the High Court had
permitted the appellants and others to file their objections and the
Scheme was to become final only after the objections were
considered by the Committee and disposed of. However, whereas
Respondent No. 2 maintains that the objections of the appellants
were disposed of/ rejected, the appellant argues otherwise and it
is pleaded that the matter remained in limbo without any decision
on its objections. The outcome of the present appeal would
depend upon this aspect.
21.In his endeavour to demonstrate that no final decision was
taken on the objections of the appellant Mr. Nidhesh Gupta,
learned Senior Counsel for the appellant submitted that these
objections were considered on 30.6.1980 and 8.7.1980. A perusal
of the proceedings dated 30.6.1980 makes it clear that it was
decided “that verification be done at the spot and in case there is
any mistake in the plan of the Scheme, the same be got rectified.”
The objection regarding the demarcation was rejected by placing
reliance on Section 192 of the Punjab Municipal Act, 1911, which
permitted land to the extent of 25% to be taken without payment
of compensation and additional 10% to be taken after payment of
compensation.
22.In the proceeding dated 9.7.1980 the claim of the appellant for
compensation was noticed and the said objection was rejected.
However, it was also decided that the plan of Sepal Hotel as
sanctioned by the Municipal Committee would be checked and
after inspecting the spot, survey plan would be corrected in view
of the objection of the objector.
23.In the meantime, Civil Suit No. 386 of 1979 filed by the
appellant herein was also decided. A perusal of the judgment
dated 11.12.1981 in the suit makes it clear that the contention of
the counsel for the appellant herein that the objections had to be
considered, was not disputed by the counsel of the Municipal
Committee and “he conceded that the Scheme framed by the
Municipal Committee has not yet become final.” It was also held
that “it is obvious from copies of resolution that the Municipal
Committee is seized of the objections filed by the plaintiff.”
24.As per Mr. Gupta, this makes it clear that even after the
resolutions of 30.6.1980 and 8.7.1980, the objections of the
plaintiff were, admittedly, yet to be decided and the Scheme had
not yet become final.
25.It is further submitted that since in spite of the aforesaid
orders, the Municipal Committee was seeking to pursue the action
under the Scheme without deciding the objections, another Suit
No. 64 of 23.12.1983 was filed by the appellant herein. After the
suit had been dismissed, the appellate court passed a consent
order dated 20.5.1986 wherein it was agreed that the appeal will
be dismissed as withdrawn and an application for demarcation will
be submitted within a month. The Municipal Committee agreed
that demarcation shall be made in the presence of the parties and
they will not demolish the disputed rooms till the demarcation was
done. The appeal was dismissed as withdrawn in view of the said
statement.
26.Thereafter, a demarcation was done on 19.8.1986. A perusal of
the same makes it clear that it was noticed therein that there was
no street falling in the concerned Khasra number as per the
revenue record and, therefore, the street could not be
demarcated.
27.Mr. Gupta, questioned the correctness of the finding of the
impugned order by making the following submissions:
i. The order dated 16.1.1980 categorically records
that the provisions of the Scheme in so far as they
affect the rights of the petitioners will not be final and
the provisions will only become final after the
objections filed by the appellant are considered by
the committee and disposed of.
ii. A perusal of the proceedings dated 30.6.1980
and 8.7.1980 makes it clear that the objections were
still pending and demarcation etc. had still to be
carried out.
iii. This fact stood admitted in the order dated
11.12.1981 wherein the counsel for the Municipal
Committee had conceded that the Scheme framed
had not yet become final and that the Municiapl
Committee was seized of the objections.
iv. It is submitted that after the aforesaid date, the
only progress was the report dated 19.8.1986, as per
which report the demarcation of the street could not
be done since there was no street as per the revenue
record. Assuming there was an error in the said
demarcation, at best a fresh demarcation could have
been ordered. In any event, it could not be said that
the Scheme had been finalised, as recorded by the
High Court.
v. A perusal of the order passed by the appellate
court dated 20.5.1986 also makes it absolutely clear
that it was agreed that there will no demolition till the
demarcation was done. Accordingly, without any
demarcation having admittedly been done thereafter,
there was no question of the Scheme having become
final.
vi. That the aforesaid facts are further reinforced for
a consideration of the agenda item dated 27.12.1995,
pursuant to the judgment of this court. A perusal of
the resolution makes it clear that the Municipal
Committee had “decided that the Schemes which are
pending are hereby dropped by the Municipal Council,
Bathinda and the office is directed to act accordingly.”
Thus, all pending Schemes stand dropped as per the
aforesaid resolution.
28.Per contra, Mr. Mahabir Singh, learned Senior Counsel
appearing for Municipal Corporation, Bhatinda (Respondent No. 2)
submitted that the judgment in the case of Yogender Pal had no
applicability as the law declared therein was made prospective by
observing that it would not be in public interest to unsettle the
settled state of affairs. It was, thus, a case of prospective
overruling. He further submitted that as per the judgment dated
16.1.1980 of the High Court, the provisions of the Scheme were
not to become final unless the objections filed by the appellants
are disposed of by the Committee. A fortiorari, the Scheme was to
attain finality if the objections were to be rejected and that was
specially observed by the High Court. Countering the submissions
that the objections had not been decided/ rejected Mr. Mahabir
Singh argued that these objections were specifically rejected by
the Municipal Committee way back on 30.6.1980 and on 9.7.1980.
He further submitted that this rejection was never challenged by
the appellant. Instead he preferred a civil suit for permanent
injunction which was, however, dismissed on 4.11.1985. A reading
of this order would reveal that the objections were duly
considered by the Committee and the same were dismissed. Even
appeal was filed against this judgment and decree of the trial
court but the appellant withdrew the same and, therefore, finding
of the trial court that objections were rejected had become final.
His further plea was that these are pure finding of facts which
have been arrived at against the appellant who has dragged on
the matter for last 30 years after successfully encroaching upon
the land which was duly carved under Town Planning Scheme for
public street. He further submitted that the appellant had
suppressed all these proceedings including filing of Civil Writ No.
19812 of 1996 which was subsequently withdrawn by him.
29.We have given our anxious thought to the aforesaid
submissions of learned Counsel for the parties. It is a common
case of the parties that the judgment in Yogender Pal (Supra) is
prospective i.e from the date of judgment which is 15.7.1994. It is
also a common case of the parties that the Scheme in question
was framed much earlier. Thus, as pointed out above, the only
issue is as to whether the Scheme had attained finality and
answer to this question depends upon another issue viz. whether
objections of the appellant to the Scheme were disposed of by
Respondent No. 2 or not, in compliance with directions dated
19.6.1980 of the High Court.
30.It is borne from the record that these objections were duly
considered on 30.6.1980 and 8.7.1980. In the proceedings of
30.6.1980 objections of the appellant regarding demarcation were
rejected. At the same time it was decided that verification be done
at the spot and in case there is any mistake in the plan of the
Scheme, the same be got rectified. It was so done. Thereafter,
matter came up before the Committee on 9.7.1980 and after
considering the entire matter the Committee specifically rejected
the objections of the appellant. Operative portion of the minutes
of the meeting dated 30.6.1980 as well as 9.7.1980 are as under:
“ Minutes of the Meeting dated 30.6.1980:
Shri Som Chand Katia, Writ Petitioner No. 226/79 is
present. He has stated that his total land measuring
31550 sq. yards is covered under the Scheme and his
land to the extent of 35% has been taken under the
Scheme and some of his land thus goes waste. The
objector has been asked to get the demarcation of
the total land at the spot and produce the plan in the
office of Municipal Committee by 7.7.1980 and should
also get the spot inspection of the land so that in spot
inspection it could be verified as to how much of his
land falls under the Scheme. In case any area more
than 25% of his total land comes under the park/
road, the same may be adjusted. The objector has
stated that he is not ready to give any land for road or
park without compensation. Thus objection of the
objector is rejected because under Section 192 of the
Punjab Municipal Act, 1911 land to the extent of 25%
without payment of compensation and an additional
10% with payment of compensation can be taken for
the purpose or roads and parks under the proposed
Town Planning Scheme.”
Minutes of the Meeting dated 9.7.1980
“As per decision dated 30.6.1980, the objector Shri
Som Chand Katia was required to get the
measurement of his land at the spot. He has produced
a photostat copy of revenue record relating to Khasra
No. 2001 which has been attested by Halqa Patwari.
As per the same, their total area in the Scheme comes
to 44300 sq. yards. The plea of objector is that the
Sepal Hotel whose area is 12750 sq. yards has
different out of the total area and the land for roads
and parks be taken out of the remaining area as per
law. But he should be given compensation of the same
as well. On perusal of record, it is found that sanction
of building plan of Sepal Hotel has also been given to
them who were the original owners of total land.
Therefore, the Sepal Hotel had also been adjusted in
the Scheme. Therefore, the Sepal Hotel had also been
adjusted in the Scheme. Therefore, it is decided that
the plot of Sepal Hotel cannot be treated to be
different from the land belonging to the said family
under the purposes of Scheme and in this way out of
total ownership land, the land under the road and
parks does not form more than 25% which is as per
law, therefore, this objection is rejected.
Therefore, in this objection, the objector has written
that the length of road joining the 30' x 40' wide
roads has been shown to be 224 under the Scheme
whereas the sport the same is 275. therefore, it is
decided that plan of the Sepal Hotel as sanctioned by
Municipal Committee be checked at the spot and
after inspecting the spot survey plan be got corrected
in view of the above objection of objector.”
31. It is clear from the above that objections were specifically
rejected. Only thing which the Municipal Committee wanted was
to check the plan of Sepal Hotel as sanctioned by the Municipal
Committee at the spot and after inspecting the spot the survey
plan be corrected. It is also clear from the above that main
objection was for payment of compensation which was rejected on
the ground that the land under the road and the parks does not
form more than 25% and, therefore, in view of Section 192 of the
Act no compensation was payable.
32.Learned Senior Counsel for the respondent is right in his
submission that these orders were not challenged. Instead, the
appellant filed Civil Suit No. 614 of 1983. However, this suit was
dismissed by the trial court. The appellant preferred appeal there
against. This appeal was dismissed as withdrawn. It was the
contention of the appellant that this appeal was withdrawn in view
of consent order dated 20.5.1986 wherein it was agreed that an
application for demarcation will be submitted within a month and
demarcation shall be made in the presence of the parties and till
then respondent shall not demolish the disputed rooms. However,
from this the appellant cannot be allowed to contend that
objections had not been decided. The at the most, issue of
demarcation was to be settled as the appellant was raising this
issue time and again. However, it is accepted by the appellant
itself that demarcation was done on 19.8.1986.
33.From the aforesaid, we cannot agree with the contention of the
appellant that objections of the appellant were still pending. At
the same time it becomes clear that the only issue which
remained was about the demarcation and demarcation was also
carried out and the Patwari submitted his Report dated 19.8.1986.
34.Having said so, what we find is that this demarcation report
has altered the position. As per the demarcation Report of the
Patwari, 30 feet road as set out in the Town Planning Scheme does
not exist in the revenue record. Once that be the position, how the
Scheme would be implemented is the poser. The High Court has
remarked that the appellant managed to get a wrong Report. At
the same time, what is the correct position at the site has also not
come on record. In a situation like this, we are of the opinion that
once the High Court observed that there was an error in the
demarcation Report, more appropriate action was to order fresh
demarcation.
35.In view of the above though we reject all the contentions of the
appellant, at the same time we modify the order of the High Court
to the extent that there shall be fresh demarcation done at the
site through Patwari. On the basis of said demarcation, if it is
found that in the revenue record 30 feet road exists, that area will
be clearly demarcated and delineated, and thereafter the Scheme
would be implemented. The aforesaid exercise shall be carried out
within a period of two months from today. The appellant shall be
associated in the exercise of demarcation. Once this demarcation,
is done the parties shall abide by the same.
36.Appeal disposed of in the aforesaid terms.
...….........................J.
[Surinder Singh Nijjar]
…...........................J.
[A.K. Sikri]
New Delhi
April 22, 2014
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