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2003 Supreme(P&H) 1114
PUNJAB & HARYANA HIGH COURT
N.K.Sud, J.
Municipal Committee, Through Its Secretary
Versus
Moti Ram
Regular Second Appeal No. 2694 of 1982,
Decided On : AUGUST 13, 2003
The main legal point established in the judgment is that encroachment on plots reserved for a Municipal Park, as per the provisions of the Haryana Municipal Act, 1973, influenced the court's decision in favor of the Municipal Committee.
Headnote:
Municipal Committee - Property Dispute - Haryana Municipal Act, 1973, Section 181, Section 61 - The court discussed the provisions of the Haryana Municipal Act, 1973, particularly Section 181 regarding encroachment on municipal lands and Section 61 regarding property vested in the Committee. The interpretation of these provisions influenced the court's decision in favor of the Municipal Committee.
Fact of the Case:
The respondents filed a suit for permanent injunction against the Municipal Committee to prevent the demolition of their house constructed on plots within the municipal limits. The Municipal Committee claimed that the land on which encroachment had been made fell in plots reserved for a Municipal Park.
Finding of the Court:
The trial court found in favor of the Municipal Committee, stating that the respondents could not be granted injunction as they had encroached upon plots reserved for a Municipal Park. The lower Appellate Court, however, allowed the appeal, stating that the Municipal Committee could not ask for demolition without compensation.
Issues: The main issue was whether the respondents could seek an injunction restraining the Municipal Committee from ordering the removal of encroachment on specific plots.
Ratio Decidendi: The court held that the respondents had encroached upon plots reserved for a Municipal Park, and their construction could not be said to have been made as per the sanction of the Municipal Committee. The lower Appellate Court's findings were deemed erroneous and not based on the record.
Final Decision: The appeal was allowed, the order of the lower Appellate Court was set aside, and the suit of the plaintiff respondents was dismissed.
N.K.Sud, J.
1. Municipal Committee, Sirsa has filed this second appeal against the order of the Additional District Judge, Sirsa, dated 14,9.1982 whereby the appeal of the respondent-plaintiffs against the judgment and decree passed by the Senior Sub Judge, Sirsa, dated 4.4.1981 has been allowed,
2. Respondents Moti Ram, Kanshi Ram and Prem Chand filed a suit for permanent injunction restraining the defendant-Municipal Committee from demolishing any portion of the house constructed by them on plot Nos. 44, 44-A and 47-A in the area known as Subhash Colony within the limits of the appellant-Municipal Committee in pursuance of its show cause notice dated 22.9.1976 (Exhibit P3). Respondents claim to have purchased the said plots through two sale deeds. The purchase through sale deed dated 1.8.1975 was in respect of plot N0.44-A (half portion) and plot No. 47-A from one Darshan Lal son of Parkash Chand. The second sale deed dated 11.7.1975 was in respect of plot No. 44-A (half portion) and plot No. 44 from one Mam Chand son of Raja Ram. The total area purchased was 378 sq. yards. A site plan for raising construction on the said plots was submitted which was sanctioned on 5.9.1975, a copy of which has been exhibited as Exhibit P1. Construction on an area measuring 54x63 is said to have been raised in accordance with the sanctioned plan. On 28.9.1976, respondents received a notice under Section 181 of the Haryana Municipal Act, 1973 (for short the Act) from the appellant-Municipal Committee informing them that they had encroached upon the municipal lands and that they should remove the encroachment within a period of one week failing which it would be removed at their expense. They considered the notice to be illegal and filed the suit for permanent injunction,
3. The suit was contested by the appellant-Municipal Committee. It was averred that the sanction to raise construction as per Exhibit P1 was subject to the condition that there would be no encroachment on the Municipal land and that in the event of any such encroachment, the permission was to be deemed to have declined. It was further averred that the land on which encroachment had been made fell in plots No. 45 and 46 of Subhash Colony which as per the sanctioned layout plan of the Colony had been kept reserved for a Municipal Park.
4. On the basis of the pleadings of the parties, following issue were framed:-
1. Whether house shown as ABCD on the site plan appended to the plaint was constructed by the plaintiffs as per sanction dated 5.9.1975 of the Municipal Committee, and if not to what effect? OPP
2. Whether the notice served by the defendant Municipal committee on the plaintiffs on 28.9.1976 is illegal and not enforceable? OPP
3. Whether the plaintiff have made encroachment on the land left for Municipal Park falling in plots No. 45 and 46 and as such the sanction granted stands automatically cancelled? OPD
4. Whether the plaintiffs have no cause of action? OPD
5. Relief.
5. Issues No. 1 and were considered together. The trial Court found that the land is situated in Subhash Colony (also known as Nand Lal Colony) which fell within the area of the Municipal Committee. The layout plan of this colony as approved by the defendant-Municipal Committee is Ex.D1 and was sanctioned in terms of resolution No. 65 dated 30.9.1969 (Exhibit D2). As per this resolution, the sanction was subject to the condition that four plots in the Subhash Colony are left for a Municipal Park. In accordance with this resolution the lay-out plan (Exhibit D1) was submitted in which plots No. 45, 46, 72 and 73 were earmarked for the purpose of the Municipal Park. On Exhibit D1 sanction was recorded on 15.10.1969 in the following terms:-
"Sanctioned vide Resolution No. 65 dated 30.9.1969."
6 The trial Court also perused from the record of the Municipal Committee and found that there was a writing on behalf of the owner agreeing to leave four plots as Municipal Park. It was also noticed as per th
