Ajit Singh vs Ludhiana Improvement Trust

J.V. Gupta, J.

This judgment will also dispose of Regular Second Appeal No. 1544 of 1985, as both these appeals were decided by the common judgment of the learned Additional District Judge, Ludhiana, dated April 24, 1985.

Both the plaintiffsappellants filed two separate suits inter alia on the grounds that they were the owners and occupiers of the properties. The Improvement Trust served a notice under Section 195 of the Punjab Municipal Act, as authorized under Section 49 of the Punjab Town Improvement Act, for the demolition of the houses. According to the plaintiffs, the said notices were illegal, void and liable to be set aside on the ground that the houses, in question, were situated in Mohalla Kartar Nagar which was outside the jurisdiction of the defendant Improvement Trust. The area of Kartar Nagar was excluded from the jurisdiction of the Model Town Extention Scheme by the Improvement Trust vide resolution No. 38 dated November 28, 1972. The residents of the Mohalla represented for declaring the street of the Mohalla as a public street on the ground that 85 per cent locality had been constructed. The Municipal Corporation declared the street of th Mohall as a public street vide resolution dated May 7, 1979. Their houses were constructed for more than four years before the filing of the suits 85 per cent construction had been made in Kartar Nagar. The suits were contested by the Improvement Trust on the grounds that no notice was given under Section 98 of the Punjab Town Improvement Act, before the filing of the suits. Moreover, the area, in question, was within the jurisdiction of the Improvement Trust. The constructions were made by the plaintiffs in the month of January, 1981. The notices were issued legally. The learned trial Court came to the conclusion that even if the area of Kartar Nagar fell within the Improvement Scheme even then, the plaintiffs'' houses were constructed many years back and, therefore, the defendant Improvement Trust could not demolish the same. Consequently, their suits were decreed. In appeal,learned Additional District Judge reversed the said finding of the trial Court and held that there was no satisfactory evidence on the record to prove that the houses, in question, were constructed more than six months prior to the issuance of the notices under Section 195 of the Punjab Municipal Act. The learned lower appellate Court also found that Mohalla Kartar Nagar was covered under the Model Town Extention Scheme and it had so been held by the trial Court also. In view of that finding, the appeals were allowed and both the suits were dismissed. Dissatisfied with the same, the plaintiffs have filed this second appeal in this Court.

The learned counsel for the appellants contended that from the resolution dated May 7, 1979, Exhibit P.3, it was amply proved that Mohalla Kartar Nagar did not fall under the Model Town Extention Scheme, as claimed by the defendant Improvement Trust. Moreover, argued the learned counsel, the houses were constructed much earlier as is evident from the documentary evidence; particularly, Exhibit P.5, the notice issued by the Municipal Corporation, Ludhiana, under Section 103(d) of the Punjab Municipal Corporation Act, 1976. According to the learned counsel the said notice is for the assessment of the housetax for the year 197980. Thus, argued the learned counsel, from the said notices, it was quite evident that the houses, in question, existed in April, 1979 in Mohalla Kartar Nagar whereas the notice, Exhibit P.2, under Section 195 of the Punjab Municipal Act was issued on January 23, 1981 much after the expiry of the period of six months of their construction. On the other hand, the learned counsel for the defendantrespondent submitted that Mohalla Kartar Nagar was never excluded from the Extension Scheme and it did form part thereof. Moreover, argued the learned counsel, on the appreciation of the entire evidence on the record, it has been found as a fact by the lower appellate Court that the plaintiffs had failed to prove that they had constructed their houses much before of six months from the date of the notice under Section 195 of the Punjab Municipal Act, and, therefore, no interference was called for in this second appeal.

After hearing the learned counsel for the parties and going through the relevant evidence on the record, I find that the trial Court rightly came to the conclusion that the houses were constructed much prior to the notice under Section 195 of the Punjab Municipal Corporation Act, as is evident from the notice issued by the Corporation for the year 197980, Exhibit P.5. This finding of the trial Court has been reversed in appeal by the lower appellate Court illegally by having a wrong approach to the whole matter. According to the lower appellate Court, it was for the plaintiffs to prove as to when they had constructed the houses and since they had not led any evidence to that effect, it could not be inferred from the notices issued by the Improvement Trust that the houses were constructed in the year 1979. According to it, no evidence had been produced by the plaintiffs that they had purchased the material from which shopkeepers and who were the masons who had constructed their houses. As observed earlier, this approach is wholly wrong and misconceived. There is absolutely no explanation on behalf of the Corporation as to under what circumstances the notice, Exhibit P. 5, for the assessment of the housetax was issued in the year 197980. To say that it was a forged document is without any basis. Thus, the finding of the trial Court in this behalf has been reversed arbitrarily and on surmises and conjectures. That being so, it need not be decided in this appeal as to whether Mohalla Kartar Nagar was covered under the Model Town Extention Scheme or not.

As a result of the above discussion, both the appeals succeed and are allowed. The judgments and decrees of the Court below are set aside and that of the trial Court decreeing the plaintiff''s suits are restored with costs.