Improvement Trust, Bhatinda vs Satinder Kaur

A.L Bahri, J. (Oral)

This appeal is by the defendantImprovement Trust, Bhatinda filed against the judgment and decree of Additional District Judge dated February 20, 1987 allowing the appeal filed by the plaintiff and decreeing the suit in toto. Senior Sub Judge Bhatinda vide his judgment and decree dated April 19, 1986 partly decreed the suit for the grant of permanent injunction restraining the defendant from demolishing portion of the house of the plaintiff which was not mentioned in the report Exh. dated 3rd November, 1984 submitted by D.W. 1, Ajaib Singh Patwari. The suit was dismissed qua the portion of the building which was constructed after notification of the development scheme.

The facts relevant for decision of the appeal are not in dispute. Briefly they are as under : Satinder Kumar, plaintiff purchased house in dispute alongwith Arvinder Kaur on May 14, 1982 by a registered sale deed. The plaintiff moved Municipal Committee Bhatinda for sanction of the plan of the building to be raised on June 29, 1982. Since no order of rejection of the building plan was communicated, it was deemed that the plan was sanctioned. The plaintiff started raising construction as per the plan submitted. The Municipal Committee Bhatinda issued a notice under Section 195 of the Act to the plaintiff regarding construction of the house. This notice was successfully challenged by the plaintiff in Civil Court. Subsequently, the Improvement Trust framed a scheme and notice was published under Section 36 of the Punjab Town Improvement Act on 9th of January, 1984. On December 6, 1984, the Improvement Trust issued notice under Section 195 of the Municipal Act as the plaintiff was still continuing with the construction of the building. This notice was challenged in the present suit being illegal, null and void.

The trial Court partly decreed the suit as already stated above with respect to the construction which had already been raised before December 6, 1984 and restrained the defendant from demolishing such construction. With respect to the construction raised thereafter, the suit was dismissed. The lower appellate Court held that notice issued was otherwise illegal and decreed the suit in its entirety. Two questions have been debated by the learned counsel for the appellant. Firstly, on enforcement of the scheme under the Punjab Town Improvement Act, further construction could not be raised. Secondly, the scheme was sanctioned within three years of the publication of the notice issued under Section 36 of the aforesaid Act and thus notice issued under Section 195 of the Punjab Municipal Act by the Improvement Trust was valid. I find no force in these contentions. Notification/notice under Section 36 of the Punjab Town Improvement Act was issued on January 9, 1984. After sanctioning of the scheme by the Government, notification under Section 42 of the Act was to be published within three years of the notice issued under Section 36 of the Act as provided under proviso to Section 42 which reads as under :

"Provided that no notice in respect of sanction of a scheme shall be issued after the expiry of three years from the date of first publication of notice relating to that scheme under Section 36 in Punjab.

A perusal of the aforesaid provision leaves no doubt that no notice in respect of sanctioning of the Scheme could be issued after the expiry of three years from the date of first publication of the notice relating to the aforesaid scheme under Section 36 of the Act. Learned counsel for the appellant has pointed out that notice under Section 42 of the Act was issued on March 29, 1987. If that is so the notice was obviously invalid and contrary to proviso of Section 42 of the Act (reproduced above).

It is after the scheme is finally sanctioned by issuing notice under Section 42 of the Act that Section 49 of the aforesaid Act would come into play bestowing powers on the Municipal Committee under the different provisions of the Municipal Act including Section 195 of the Municipal Act.

In the present case, the Improvement Trust had no jurisdiction to issue notice under Section 195 of the Municipal Act which was challenged in this suit as there was no valid sanctioned scheme for enforcement. Further construction even after issuing of the notice under Section 36 of the Punjab Town Improvement Act was thus not prohibited. In the present case, when the Municipal Committee had not rejected the plan submitted for sanction for construction of the building within the stipulated period such a plan was deemed to have been sanctioned in law and the plaintiff was entitled to raise construction in accordance therewith, more so when his suit against the Municipal Committee stood decreed.

For the reasons stated above, this appeal fails and is dismissed. There will be no order as to costs.