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Judgment
N.K. Kapoor, J.—This is plaintiffs Regular Second Appeal whereby the suit for declaration and permanent prohibitory injunction seeking permission to raise construction over the plot purchased by him from Gram Panchayat Mani Majra-predecessor-in-intest of notified area committee has been declined by both the Courts below.
Briefly put, the plaintiff filed a suit for declaration, recovery of damages and for permanent injunction alleging that Gram Panchayat, Mani Majra, auctioned block of some plots out of its land on Old Ropar road, Mani Majra. Plot No. 1 was purchased by Ram Saran Dass etc. and plot No. 2 was purchased by Bansi Ram alias Bansi Lal vide a registered sale deed. Possession of plot No. 2 too was delivered to Bansi Ram before the registration of the sale deed. Said Bansi Ram filed an application on August 15, 1973 for permission to erect the building thereupon. Shri K.P. Bhalla, Sarpanch of the Gram Panchayat, granted permission on August 17, 1973.
It is further alleged that Bansi Ram, however, did not raise any construction and sold the same with possession in favour of the plaintiff vide sale deed dated May 6, 1983. It has further been alleged that Shri Ram Saran Dass etc. owners of plot No. 1 which adjoins plot No. 2 of the plaintiff, applied for sanction of the building plan and were allowed to raise construction thereupon. Presently, a shop exists on this plot i.e. plot No. 1.
Plaintiff with a view to seek permission from the notified area committee for raising construction over the plot purchased by him filed an application accompanied by a fee of Rs. 100/- as required. The notified area committee despite many reminders did not inform the plaintiff as to whether his plan has been approved or not. It is only on 17.1.1985 i.e. almost after two years that the plaintiff was informed that the plan could not be sanctioned as plot No. 2 forms part of natural water way/nala. The plaintiff contested this claim of the respondent served notice u/s 49 of the Punjab Municipal Act, 1911 but despite this he did not receive any communication from the committee. Hence this suit. Besides seeking declaration and injunction, the plaintiff claimed damages at the rate of Rs. 4,000/- per month w.e.f. 1.1.1984. However, on his own, the plaintiff relinquished his claim for damages to the tune of Rs. 60,000/- and this way claimed a sum of Rs. 1,000/- only.
The defendants put in appearance, filed written statement and resisted the suit by raising preliminary objections that the suit is not maintainable in the present form, that the suit has not been properly valued for the purposes of court fee and jurisdiction and that the plaint does not disclose any cause of action. On merits, it was pleaded that the plaintiff be directed to prove the sale deed executed by erstwhile Sarpanch of the village Shri Kanti Parkash Bhalla on 17.8.1973 in favour of Bansi Ram, vendor of the plaintiff. It was further pleaded that the water-course/nala is in existence from the time immemorial and as such no construction can be raised over plot No. 2, purchased by the plaintiff. In the same breath it has been alleged that plot No. 2 abuts water way/nala. As regards permission granted to Ram Saran Dass, owner of plot No. 1, it was stated that this plot did not come over the said water way/nala. Receipt of notice u/s 49 of the Municipal Act was admitted. Other averments made in the plaint were denied.
On the pleadings of the parties, following issues were framed :-
(1) Whether the plaintiff is entitled to the relief as prayed for ? OPP.
(2) Whether the plaintiff is entitled to the recovery of the damages ? If so, to what amount? OPP.
(3) Whether the suit is not maintainable in view of the preliminary objections ? OPD.
The following additional issues were framed on 4.2.1986.
(4-A) Whether the plaintiff is the owner in possession of the plot in dispute ? OPP.
(4-B) If issue No. 1 is proved, whether Bansi Ram and thereafter plaintiff are the bona fide purchasers of the plot in dispute ? OPP.
(4-C) What is the effect of non-sanction of the building plan upto 2 months from the date of its submission ? OPP.
(5) Relief.
The trial Court examined issue Nos. 4-A and 4-B together. After appraising the evidence led by the parties, the Court came to the conclusion that the plaintiff is owner in possession of the plot in dispute. Consequently, both these issues were decided in favour of the plaintiff.
The trial Court decided issue No. 3 in favour of the defendants and against the plaintiff holding that the suit is not maintainable in view of the preliminary objection. Issue No. 4-C too was decided against the plaintiff. Taking up issues No. 1 and 2 together, the trial Court came to the conclusion that the plaintiff had successfully proved the rate of rent of the shop of Ram Saran Dass (22''x11'') which is on monthly rent of Rs. 2,000/-. The trial Court further came to the conclusion that the plaintiff who intended to construct three floors upon the site, if permitted to raise, such constructed portion is likely to give monthly return at the rate of Rs. 4,000/-. It has further been observed by the Court that the defendant failed to lead any evidence in respect of this issue. Despite this conclusion, the trial Court declined to grant this relief on account of its finding under issue No. 3. Resultantly, the suit of the plaintiff was dismissed.
Before the lower appellate Court much stress was laid by the appellant with regard to the decision of the trial Court in respect of issue No. 3. Learned counsel for the appellant challenged this finding of the trial Court terming this to be wholly unwarranted. Counsel for the defendants, however, on the other hand, relied upon Section 32 of the Punjab Gram Panchayat Act, 1952, and Section 56 of the Punjab Municipal Act for the proposition that area purchased by the plaintiff forms part of the waterway and even if sold by Gram Panchayat, the same cannot be permitted for raising construction thereupon. Allowing of building construction at the site would not only prove hazardous but would block the natural and normal flow in the waterway. The lower appellate Court agreeing with this contention of the defendant committee found no fault with the finding of the trial Court in respect of issue No. 3. Similarly, the appellate Court too affirmed the finding of the trial Court in respect of issue Nos. 1 and 2 holding that in view of decision under issue No. 3, the plaintiff was not entitled to any damages. Resultantly, the appeal also was dismissed.
The first submission of the learned counsel for the appellant is that both the Courts, in fact, have proceeded on a wrong premises which consequently has led to wholly erroneous findings. Elaborating the counsel urged that Gram Panchayat Mani Majra reclaimed an area of 54"x50'' out of a local nala and thereafter drew a plan to sell the same in plots. Necessary sanction was granted under Rule 8 of the Punjab Village Common Lands (Regulation) Rules, 1964. One plot was sold to Ram Saran Dass etc who got their plan sanctioned and have also raised construction thereupon. The area adjoining this land was admittedly purchased by Bansi Ram by registered sale deed who in turn sold the same to the plaintiff vide sale deed dated 6.5.1983. The learned counsel for the appellant with some amount of vehemence urged that there is not an iota of evidence on record to suggest that the disputed plot forms part of a nala water way. Assuming the plot to be part of a water way, both the courts have examined the matter. This way the judgments of the Courts below are wholly vitiated.
Determination of this fact has material bearing on the point in controversy. A bare perusal of Exhibit P-17 prove the assertion of the plaintiff that the disputed plot is away from nala and so the same cannot be said to be causing any obstruction in the flow of water. It appears that both the Courts were more swayed with the mere assertion of the notified area committee that the plot forms part of a nala/water way and so simply glossed over Exhibit P-17, P-14 and P-15. The Court below have also ignored the factual assertion of the plaintiff that his plot is in line with the one which was purchased by Ram Saran Dass etc. Not only this, as per counsel for the appellant, no such sanctioned plan has seen the light of the day. Thus taking a cumulative view of the matter i.e. (i) notified area committee has allowed Ram Saran Dass etc. to raise construction over plot No. 1; (ii) Plot No. 2 (of the plaintiff) does not form part of any nala/water way; (in) the disputed plot is away from nala as per Exhibit P-17; I am of the view that decision of the Courts below in this regard is unsustainable.
The matter can be examined from another angle also. Gram Panchayat Mani Majra retrieved some area out of a nala which was not being put to any use and so was permitted to be sold by the concerned authority by carving out plots. As many as four plots were carved out. One was sold to Ram Saran Dass etc. and plot No. 2 to Bansi Ram successor-in-interest of the present plaintiff way back in the year 1973. Had it been otherwise i.e. the area which formed part of a water way earlier would not have been allowed by the authorities to be sold in plots nor any sensible bidder/purchaser would have come forward. This totally demolishes the wholly untenable stand of the notified area committee. There does not appear to be much substance in the plea of the defendants that the plot, if permitted to be constructed, would interfere with the building plan of the notified area committee. No such plan has been placed on record nor such a document has been adverted to by the Courts below. Perhaps the proposed plan is still in its infancy.
Besides this, much emphasis has been laid by the Courts with regard to the provisions contained in Section 193 of the Punjab Municipal Act which empowers a committee to sanction or refuse erection or re-erection of a building. There is no material on record by which it could be deduced that the proposed building plan submitted by the plaintiff, in any manner, contravenes the plan of the notified area committee. Denial by the committee to the sanction of the submitted plan is per se discriminatory as owner of plot No. 1 few years from now had already been permitted to raise construction upon the site purchased by him. Not only this he has built a shop which as per the assessment made by the trial court is fetching rent at the rate of Rs. 2,000/- per month. In fact, as per decision of the trial Court, the building intended to be constructed by the plaintiff is likely to fetch him a monthly rent of Rs. 4,000/-. Considerable time has elapsed since the plan for raising construction was submitted by the plaintiff whose application has been declined for no just reason. Plaintiff, indeed, has been penalised by this act of the Committee as the cost of raising the construction has arisen steeply. Finding of the trial Court awarding damages calls for no interference and is accordingly affirmed. Resultantly, I accept the appeal, set aside the judgment and decree of the Courts below and decree the suit of the plaintiff as prayed for with costs. Costs quantified at Rs. 2,000/-.