Punjab-Haryana High Court
Municipal Committee vs Gian Chand Parmukh Sant Nirankari ... on 1 February, 2006
Equivalent citations: (2006)144PLR60
Author: Jasbir Singh
Bench: Jasbir Singh
JUDGMENT Jasbir Singh, J.
1. Respondent alongwith Sant Nirankari Mandal, Gobindgarh, upon receipt of a notice Under Section 220 of the Punjab Municipal Act, 1911 (in short the Act), calling upon the Sant Nirankari Mandal to demolish Nirankari Bhawah, filed a suit for permanent injunction with a prayer that the appellant and its administrator be restrained from demolishing the property, in dispute and also not to interfere in the said property. It was case of the respondent-plaintiff that construction was raised about five years back, when an earlier suit filed by the respondent entered into a compromise. Thereafter, even a resolution was passed by the appellant-municipal committee with a recommendation that property, in dispute, be leased out to Sant Nirankari Mandal for a period of 99 years. Under these circumstances, it was alleged that issuance of notice was not as per law. In written statement, the appellant-defendant averred that the land belongs to it and the construction thereon has been made forcibly and without any permission from the municipal committee. Passing of the resolution was not denied. Trial Court, on appraisal of evidence of the parties, framed the following relevant issues:
Whether plaintiff is entitled to injunction prayed for on the grounds mentioned in the plaint? OPP.
2. After contest, the trial Court, came to a conclusion that the land underneath the construction in dispute, was not in the ownership of the respondent. Trial Court, by taking note of provisions of Section 13-A of the Act, came to a conclusion that the vacant plot was being used as a street by residents of the area, it belongs to the municipal committee and construction raised thereon was forcible and without sanction. It was further noticed by the trial Court that before issuance of notice Under Section 220 of the Act. Administrator of the municipal committee had issued notice Under Section 172 and 195 of the Act on 15.7.1996, when unauthorized construction was being raised by the respondent-plaintiff. It was also held that to prove averment that the matter was compromised between the parties, in an earlier suit, neither the plaint, nor order passed in that suit was brought on record, to support that contention, Trial Court has further noticed that notices, which were issued earlier, Under Sections 172 and 195 of the Act, were on record of the Court though those notices were not formally proved on record, the Court took into consideration those documents. Suit was dismissed. Appeal was allowed by the appellate Court below and judgment and decree passed by the trial Court were reversed. Injunction was granted against the appellant municipal committee, not to demolish the construction, in dispute. However, liberty was granted to the appellant to take action as permissible under the law. Hence, this Regular Second Appeal.
3. Counsel appearing on behalf of committee, has vehemently contended that the appellate Court below has gone wrong in reversing the judgment and decree passed by the trial Court, by observing that the property, in dispute (the plot, over which construction has been raised), was not in the ownership of the municipal committee. He has referred to documents on record to say that the appellate Court below has not looked into evidence and has decided to the contrary in a very arbitrary manner. He further argued that the appeal filed by the respondent was not competent as no resolution passed by Sant Nirankari Mandal, which is a registered body, was brought on record. It was further argued that the suit filed, was in a representative capacity, as the permission was not sought from the Court to file the said suit, the same was not maintainable.
4. Arguments raised by counsel for the appellant, were vehemently opposed by counsel, appearing for the respondent. He has stated that as the municipal committee has passed a resolution to lease out this land to Sant Nirankari Mandal for a period of 99 years, the issuance of notice was not justified. He has further argued that the suit was in individual capacity and as such, the same was maintainable. It was further stated that as the notice issued Under Section 220 of the Act was not proper, injunction order, has rightly been granted in favour of the respondent.
5. After hearing counsel for the parties, following substantial questions of law were framed:
(i) Whether finding given by the appellate Court below that the appellant is not owner of the property, in dispute, is contrary to the admission made by the respondent and also evidence on record.
(ii) Whether injunction can be granted in favour of a tress-passer and also in a case where construction has been raised, without getting any building plan sanctioned, under the Act.
6. This Court feels that the appellate Court below has committed a grave error while opining in paragraph No. 4 of its judgment that as per admitted position "site in dispute" does not belong to the municipal committee. It is proved on record and not controverted before this Court that even, as per case of the respondent, the plot underneath the construction in dispute was in ownership of the municipal committee. In the plaint, it was specific case of the respondent, as is apparent from the averments made in paragraph Nos. 5 and 9 that the municipal committee/the appellant was owner of the property, in dispute. It was specifically averred and urged that the plot, in dispute, was given to Sant Nirankari Mandal by the municipal committee, on the basis of a compromise, which was entered into between the parties in an earlier suit. It has further been stated that the municipal committee, by passing a resolution, has recommended to the government, to 'lease out plot, in dispute, to Sant Nirankari Mandal, for a period of 99 years. It was further stated that the respondent-plaintiff has raised construction over the site, belonging to the municipal committee, with the full knowledge and in the presence of its officials. Fact that municipal committee is owner of the property, in dispute, was not even controverted before this Court, at the time of arguments. It has also come on record that DW1, Licence Inspector, has brought in Court registers of immovable properties of the municipal committee, wherein it was mentioned that the property, in dispute, is in the ownership of the municipal committee. Under these circumstances, this Court feels that the Court below has gone wrong to say that the municipal committee was not owner of the property, in dispute. Opinion given by the appellate Court below was contrary to the evidence on record.
7. It is further not in dispute that the construction over the plot in dispute, was raised without getting building plans sanctioned from the municipal committee, as is necessary under the provisions of the Act and Rules framed thereunder. Under these circumstances, it is to be seen as to whether injunction can be granted in favour of an encroacher, who has even raised huge construction, contrary to the provisions of law.
8. Their Lordships of Supreme Court in of the appellant. This Court is of the opinion that under these circumstances, injunction, which is an equitable remedy, cannot be granted in favour of the institution, referred to above. Premji Ratansey Shah and Ors. v. Union of India and Ors. 1995(1) Civil Court Cases 1 (S.C.), has held as under:
The question, therefore, is whether an injunction can be issued against the true owner. Issuance of an order of injunction is absolutely a discretionary and equitable relief. In a given set of facts, injunction may be given to protect the possession of the owner or person in lawful possession. It is not mandatory that for mere asking such relief should be given. Injunction is a personal right Under Section 41(j) of the Specific Relief Act, 1963; the plaintiff must have personal interest in the matter. The interest or right not shown to be in existence, cannot be protected by injunction.
5. It is equally settled law that injunction would not be issued against the true owner. Therefore, the Court below have rightly rejected the relief of declaration and injunction in favour of the petitioners who have no interest in the property. Even assuming that they had any possession, their possession is wholly unlawful possession of a trespasser and an injunction cannot be issued in favour of a trespasser or a person who gained unlawful possession, as against the owner.
9. Facts referred to above, clearly shows that an attempt has been made by Sant Nirankari Mandal, to grab property of a public institution, when unauthorized construction was started, immediately notice was sent, despite that construction continued and a huge building came up over the land, which is in the ownership.
10. To the same effect is the ratio of the judgment of a Division Bench of this Court in Wazir Singh v. The Deputy Commissioner, Sangrur and Ors. 2003-2 134 P.L.R. 51, wherein, while dealing with a similar situation, it was held as under:
5. We are of the considered opinion that the petitioner, admittedly, being in unauthorized occupation of the premises of the Municipal Council, cannot be granted any equitable relief. Necessary proceedings under the Punjab Public Premises and Land (Eviction and Rent Recovery) Act, 1973, having been concluded against the petitioner, no relief can now be granted.
11. In view of the facts, mentioned above, this Court feels that the respondent was not entitled to grant of equable relief of injunction, which was wrongly given to him by the appellate Court below.
12. There is also substantial force in argument raised by counsel for the appellant that, as the appeal was not filed before the appellate Court below, by a competent person, the same was required to be dismissed. Record reveals that the notice, under challenge, was sent to Sant Nirankari Mandal, Mandi Gobindgarh, which is a registered body, through Gian Chand, for removal of encroachment. At that time, the present respondent Gian Chand and Sant Nirankari Mandal both, filed the suit, which was dismissed. However, appeal was filed only by Gian Chand and as such the Sant Nirankari Mandal had suffered the judgment and decree passed by the trial Court, against it. Respondent Gian Chand has no independent interest in the property, in dispute. He is acting only as parmukh of the said institution. When appeal was filed, no resolution passed by Sant Nirankari Mandal, a registered body, was placed on record. As that institution has not challenged the dismissal of the suit, this Court feels that the appeal filed by Gian Chand alone was not competent and the same has wrongly been entertained by the appellate Court below.
In view of facts, mentioned above, appeal is allowed, judgment and decree passed by the appellate Court below are set aside and that of the trial Court are upheld.