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Civil Writ Petition No.4039 of 1988 Vs. Civil Writ Petition No.4039 of 1988 - Court Judgment

LegalCrystal Citation
CourtPunjab and Haryana High Court
Decided On
AppellantCivil Writ Petition No.4039 of 1988
RespondentCivil Writ Petition No.4039 of 1988
Excerpt:
.....chandigarh cwp nos.4039 & 4884 of 1988 [2].28.4.1988 purportedly under section 172 (2) of the punjab municipal act, 1911 (hereinafter referred to as ‘the act’) calling upon her to demolish a part of the property. the petitioner, on enquiry, found that a portion of her property had been included in the town planning scheme for an un- built area notified on 22.5.1975. the said scheme was framed by the then municipal committee, bhathinda under section 192 of the act and was sanctioned by the state government on 31.12.1976. thereafter, a supplementary town planning scheme was also got sanctioned on 22.1.1983. [4].section 192 (1) (d) of the punjab municipal act, 1911 as was in force at the relevant time, used to empower a municipality to utilize the immovable property for the purpose.....
Judgment:

IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Civil Writ Petition No.4039 of 1988 Date of Decision : July 11, 2013 Parma Wati .....Petitioner versus The Municipality/Municipal Committee & anr.....Respondents CORAM : HON'BLE MR.JUSTICE SURYA KANT.

HON'BLE MR.JUSTICE SURINDER GUPTA.

Present : Mr.J.S.Chahal, Advocate, for the petitioneRs.Mr.Chetan Mittal, Senior Advocate, with Mr.Kunal Mulwani, Advocate, for respondent No.1.

--- 1.

Whether Reporters of Local papers may be allowed to see the judgment?.”

2. To be referred to the Reporters or not?.”

3. Whether the judgment should be reported in the Digest?.

--- Surya Kant, J.

(Oral) This order shall dispose of Civil Writ Petition Nos.4039 and 4884 of 1988 as both these petitions impugn the Town Planning Scheme of un-built area No.2, part-2, sanctioned by the State of Punjab for its development by the then Municipal Committee (not Municipal Corporation).Bhathinda.

COCP Nos.1275 & 1548 of 2007, which have been ordered to be heard alongwith these cases are also being disposed of.

[2].For brevity, the facts are being extracted from CWP No.4039 of 1988.

[3].The petitioner is said to have purchased property bearing H.not B-VII-299 by way of a registered sale deed dated 18.4.1975 from one Amar Singh son of Jassa Singh, who in turn had purchased the same vide registered sale deed dated 27.9.1971.

The petitioner received a notice from the respondent-Municipality dated 27.1.1988 and again dated Kumar Mohinder 2013.07.29 12:11 I attest to the accuracy of this order Chandigarh CWP Nos.4039 & 4884 of 1988 [2].28.4.1988 purportedly under Section 172 (2) of the Punjab Municipal Act, 1911 (hereinafter referred to as ‘the Act’) calling upon her to demolish a part of the property.

The petitioner, on enquiry, found that a portion of her property had been included in the Town Planning Scheme for an un- built area notified on 22.5.1975.

The said Scheme was framed by the then Municipal Committee, Bhathinda under Section 192 of the Act and was sanctioned by the State Government on 31.12.1976.

Thereafter, a supplementary Town Planning Scheme was also got sanctioned on 22.1.1983.

[4].Section 192 (1) (d) of the Punjab Municipal Act, 1911 as was in force at the relevant time, used to empower a Municipality to utilize the immovable property for the purpose of its Town Planning Scheme, without paying any compensation to the affected owneRs.It was in deference to the said provision that the notice served upon the petitioner did not propose payment of any compensation to her.

[5].The aggrieved petitioner has approached this Court and got an ad-interim stay in her favour.

[6].The respondent-Municipal Corporation in its reply- affidavit has maintained that the land in question was in fact a shamlat Patti Mehna and was under its ownership after the inclusion of Gram Panchayat area within the Municipal limits.

It was claimed that the petitioner has encroached upon that land and raised un-authorized construction, hence, she was not entitled to seek any compensation for the land in question.

Her entitlement to claim compensation for the structure was also disputed on the strength of Section 192 of the Act (ibid).As regard to 'public purpose' of acquisition, it is explained that the subject land is required in public interest for the widening Kumar Mohinder 2013.07.29 12:11 I attest to the accuracy of this order Chandigarh CWP Nos.4039 & 4884 of 1988 [3].of Bibiwala road which connects Bhathinda township with the main Highway coming from Patiala side.

[7].The question whether the respondents are entitled to acquire private immovable property in purported exercise of their powers under Section 192 (1)(d) of the Act without payment of compensation, was set at rest and answered by the Supreme Court in the case of Yogendra Pal versus Municipality, Bathinda, 1994 (6) SCC 709.in favour of land owners declaring Section 192 (1)(c) unconstitutional it being violative of Article 300A of the Constitution.

The offending provision has been, however, struck down prospectively from the date of decision.

It is so explicitly mentioned in para No.30 & 32 of the report as extracted below:- “30.

As held above, the provisions of Section 192 (1) (c) of the Punjab Municipal Act, 1911 and of Section 203 (1) (c) of the Haryana Municipal Act, 1973 are violative of Article 14 of the Constitution.

Hence, the acquisitions of the appellants' land under the respective provisions were bad in law.

The question still remains as to what relief the appellants can be granted.

It is not well settled by the decisions of this Court beginning with I.C.Golak Nath versus State of Punjab, 1967 (2) SLR 76.that the Court can mould the relief to meet the exigencies of the circumstances and also make the law laid down by it prospective in operation.

We are informed that till date the Municipal Committees in both Punjab and Haryana States have similarly Kumar Mohinder 2013.07.29 12:11 I attest to the accuracy of this order Chandigarh CWP Nos.4039 & 4884 of 1988 [4].acquired lands for their respective town planning schemes and in many cases the schemes have also been completed.

It is only some of the land-owners who had approached the Courts and the decisions of the Courts have become final in many of those cases.

It would not, therefore, be in the public interest to unsettle the settled state of affaiRs.It would create total chaos and an unmanageable situation for the Municipal Committees if the said provisions of the respective statutes and the land acquisitions made thereunder are declared void with retrospective effect.

We, therefore, propose to declare that the concerned provisions of the two enactments would be void from the date of this decision.

xx xx xx xx 32.

Hence, while we hold that the provisions of Section 192 (1) (c) of the Punjab Municipal Act, 1911 and of Section 203(1) (c) of the Haryana Municipal Act, 1973 being violative of Article 14 of the Constitution are void with effect from the date of this judgment and set aside the impugned decision of the High Court, we for the reasons already stated, in the peculiar facts of these cases, dismiss the appeals and the writ petition......”

(emphasis applied) Kumar Mohinder 2013.07.29 12:11 I attest to the accuracy of this order Chandigarh CWP Nos.4039 & 4884 of 1988 [5].[8].It would also be apposite to reproduce para 33 of the cited decision, which is to the following effect:- “33.

In the facts and circumstances, however, we direct that the respondent-Municipal Committee in C.A.No.818 of 1986 shall make an ex-gratia payment of Rs.30,000/- to the appellants therein and the respondent- Municipal Committees in each of the C.A.Nos.814-16 of 1986, 2535 of 1981 and C.A.No.3656 if 1987 shall make an ex-gratia payment of Rs.5,000/- to the appellants in the respective appeals....”

[9].It is a fact that the Town Planning Scheme in the instant case was sanctioned firstly in the year 1975 followed by supplementary sanction in the year 1983 and thus, it was much prior to the decision rendered by Supreme Court in Yogender Pal's case (supra).The resultant effect would be that the said Scheme stands saved by virtue of prospective effect given by their Lordships to the dictum in Yogender Pal's case.

Equally important aspect would be to notice that ex-gratia lump-sum compensation was awarded by the Apex Court to the land- owners in Yogender Pal’s case (supra) also.

[10].The petitioner in the instant case claims her entitlement on the basis of registered sale deed executed in the year 1975.

The previous owner also draw title on the basis of registered sale deed of the year 1971.

True it is that the respondent-Municipality has disputed the title of petitioner as, according to it, the subject land vests in the Municipality.

The petitioner, however, is admittedly in possession of the property much before this Court protected her possession during last Kumar Mohinder 2013.07.29 12:11 I attest to the accuracy of this order Chandigarh CWP Nos.4039 & 4884 of 1988 [6].15 yeaRs.[11].Taking into consideration the totality of facts and circumstances, however, without going into the question of title but keeping in view the long possession of the petitioner over the subject property and the fact that she has enjoyed it for commercial purposes for all these long years and also keeping in view the approximate size, i.e, 600 square yards of the property, we are of the considered view that she is entitled to ex-gratia payment which we determine to the tune of Rs.5,50,000/-.

In the connected case, the total area in dispute being less than the area in the instance case, we award ex- gratia payment of Rs.3.00 lacs.

On realization of the aforesaid ex-gratia payments, the respondents shall be entitled to take possession of the acquired property alongwith structures for the purpose of widening of the road.

[12].The writ petitions stand disposed of in the above terMs.[13].Since we have awarded lump sum ex-gratia payment, the parties shall not be entitled to raise title issue before any other Forum.

[14].The respondents are directed to release the ex- gratia payments within a period of three months from the date of receiving a certified copy of this order, failing which the petitioner shall be entitled to interest @ 7% per annum.

[15].Disposed of in above terMs.(SURYA KANT) JUDGE July 11, 2013 (SURINDER GUPTA) Mohinder JUDGE Kumar Mohinder 2013.07.29 12:11 I attest to the accuracy of this order Chandigarh


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