Holding

The land was part of the town planning scheme reserved as open space for public use, and the respondents were not owners in possession; the suit for injunction was dismissed.

Summary

The Municipal Corporation, Ludhiana notified a Town Planning Scheme under Section 192(2) of the Punjab Municipal Act, 1911, which incorporated land belonging to the deceased Rajinder Kaur. She objected, and the scheme was modified to reserve 25% of the area, including 3.16 kanals, as open space for a public park. After the scheme attained finality, her sons claimed ownership of the park land and sued for a perpetual injunction to restrain the corporation from taking possession. The trial court dismissed the suit, holding the land was a public open space; the first appellate court reversed, granting the injunction; the High Court upheld that reversal. The Supreme Court, after examining the scheme, the Deputy Commissioner’s report, and documentary evidence, held that the land formed part of the town planning scheme reserved for public use and the respondents were not owners in possession. Consequently, the appeals were allowed, the High Court and first appellate judgments were set aside, and the trial court order dismissing the suit was restored.

Issues considered

Whether the 3.16 kanals of land left as open space in the town planning scheme is part of the public/common area under the Punjab Municipal Act, 1911.
Whether the respondents, as heirs of the original landowner, have a right to claim ownership and obtain an injunction against the Municipal Corporation.
Whether the scheme and the Deputy Commissioner’s report conclusively establish the status of the land as public open space.

Legislation cited

Punjab Municipal Act, 1911s. 192, s. 192(2)

Subjects

Town Planning SchemePublic Open SpaceInjunctionMunicipal CorporationPunjab Municipal ActSection 192PossessionCommon AreaGreen Belt

Judgment

MUNICIPAL CORPORATION, LUDHIANA AND ANR. A
11.
BALINDER BACHAN SINGH (D) BY L,!lS. AND ORS.

APRIL 28, 2004

[R.C. LAHOTI AND ASHOK BHAN, JJ.] B

Municipalities:

Punjab Municipal Act, 1911-Section 192-Town Planning Scheme-
Land belonging to 'R' included therein-8uit land admeasuring 3.16 kanals C
left in the scheme as open space to develop park-Scheme attained finality--
Respondents, the sons of 'R ', claiming to be owners-in possession filed suit
for injunction restraining the appellant-corporation from taking forcible
possession of the suit land-Held, the suit is iiable to be dismissed-
Documentary evidence proved that the suit land was left in the scheme for D
use by residents of the /ocality-lt cannot be said that the suit land did not
form part of the town planning scheme or that the land continued to be
owned by respondents and that they were in exclusive possession thereof

Appellant-Corporation notified a Town Planning Scheme under Section ,
192(2) of the Punjab Municipal Act, 1911. 'R' (since deceased), whose land E
was also included in the scheme, filed objections. The objections were partly
accepted and the scheme was modified as per R's desire. After the scheme
was duly notified by the Government, land was developed as per the scheme.
Roads were carved ou~ sewage as well as other facilities were installed while
the suit land measuring 3 kanals 16 marlas was left as a park for use of the '
inhabitants of that colony. F
But when the scheme had attained finality and steps in pursuance
thereto had been completed, Respondents 1 and 2-the sons of 'R' claiming
that 'R' had no interest or right in the property and that they themselves were
owners-in-possession or the suit 1and, med suit for perpetua1 injunction
0
restraining the appellant from taking forcible possession.

Trial Court dismissed the suit holding that the suit land was left as a '
park in the scheme which was duly developed and was being used as such by
the inhabitants of the locality and that the respondents were not in possession
855 If
856 SUPREME COURT REPORTS [2004] SUPP. 1 S.C.R.

A of the suit land. But in first appeal, the Additional District and Sessions Judge
decreed the suit holding that the respondents were owners in possession of
the suit land and were, therefore, entitled to the injunction as prayed for. High
Court upheld the judgment of the Additional District and Sessions Judge.
Hence the present appeals.

B Allowing the appeals and restoring the Trial Court's order, the Court

HELD: 1. Under Section 192 of the Punjab Municipal Act, 1911, the
Municipal Corporation is entitled to draw up a building scheme for the built
area and the town planning scheme for unbuilt area which may among other
things provide for the restriction of the erection or re-erection of buildings,
C the prescription of a building line on either side or both sides of any street
existing or proposed, and the amount of land in such unbuilt area which is to
be utilised for public purposes including the use as public streets. (861-G]

2. For every locality green spaces and green belts have to be provided to
provide lung space to the residents of the locality. A provision for green park
D was made by the Municipal Corporation keeping in view the minimum
requirement to provide open/green space to the residents of the locality. 'R'
herself had submitted a lay out plan which comprised the present suit land.
She had herself agreed to leave 25 per cent of the area under the scheme to
be used by the inhabitants of the locality for common purposes including the
E open space area which is in dispute. The documentary evidence which has
come on record in the form of the original scheme as well as the documents
DI to D38 and the report submitted by the Deputy Commissioner conclusively
show that the suit land measuring 3.16 kanals was left in the scheme to be
used as open space for the use of the residents of the locality.
{86l-H; 862-A, B, C]
F
3. 1. Map attached with the report of the Deputy Commissioner and the
site plan attached with the scheme completely tally with each other. In the
scheme 3.16 kanals of land was left as open space in the centre surrounded
by houses on three sides. The photographs produced also show that the land
is lying vacant and is being used by the inhabitants for common purposes.
G Besides the plots carved out in the scheme were sold by 'R' as well as her
sons including the plaintiffs-respondents. They could not have sold the land
without getting the scheme sanctioned as plots. 1862-DI
3.2. It is well known and judicial notice can be taken of the fact that
residential plots sell at a much higher price than agricultural land. To sell
H the land as plots, a part of the land has to be left to provide for common
MUNICIPAL CORPN. LUDHIANA v. B.B. SINGH [BHAN, J.] 857
purposes such as roads, community centre, schools and parks. Having taken A
advantage of selling the plots in a developed colony and charging a higher
price, which were purchased by the inhabitants with the understanding that
civic amenities including the park were well provided for, the plaintiffs/
respondents cannot be permitted to turn around to claim the land left in the
scheme for being used as a park as their personal pr9perty. [862-E-F)
B
4. In view of the documentary evidence, relian~e cannot be placed upon
the oral testimony of the witnesses who were produced by the plaintiffs-
respondents. It cannot be said that the suit land did not form part of the town
planning scheme or the land continued to be owned by the plaintiffs-
respondents and that they were in exclusive possession thereof. (862-G-H)
c
CIVIL APPEAL JURISDICTION : Civil Appeal No. 15340 of 1996

From the Judgement and Order dated 11.7 .96 of the Punjab and Haryana
High Court in R.S.A No. 2315 of 1998

WITH D

Civil Appeal No. 15341of1996.

Anant Vijay Palli and Ms. Rekha Palli for the Appellants.

M.C. Dhingra for the Respondent Nos. 2 and 3. E
The Judgment of the Court was delivered by

BHAN, J. These appeals are directed against the judgment and order
of the High Court of Punjab and Haryana at Chandigarh dated I Ith July, 1996,
passed in R.S.A. No. 2315 of 1988 whereby the High Court has upheld the 'F
judgment of reversal of the Additional District and Sessions Judge thereby
decreeing the suit filed by the plaintiff-respondent Nos. I and 2 (hereinafter
referred to as the 'respondents').

Civil Appeal No. 15340,of 1996 has been filed by the Municipal
Corporation, Ludhiana and Civil Appeal No. 15341 of 1996 has been filed by G
the inhabitants of the area of the suit land. The facts are taken from Civil
Appeal No. 15340 of 1996.

Municipal Corporation, Ludhiana, (hereinafter referred· to as the
'appellant'), notified a Town Planning Scheme Area No. 6 Part-IIIA, known H
858 SUPREME COURT REPORTS [2004) SUPP. 1 S.C.R.

A as Sampuran Colony, Model Gram, Ludhiana, duly framed under Section
192(2) of the Punjab Municipal Act, 1911 (for short 'the Act'). Sampuran
Singh is the father of Respondent Nos. 1 (D) through Lrs. and 2, and husband
of Smt. Rajinder Kaur. In the Scheme, the land of Smt. Rajinder Kaur, (since
deceased) respondent No. 3 and mother of the respondents was also included.
Notice was. published in the newspapers inviting objections to the proposed
B scheme. Shrimati Rajinder Kaur raised certain objections in which she wanted
certain changes and adjustments to be made in the scheme. Executive Officer
of the appellant vide letter dated 79th June, 1968 called upon Smt. Rajinder
Kaur to come to his office on 5th July, 1968 for considerations of the objections
filed by her. Taking into consideration the objections filed and having heard
C the objector the scheme was approved with certain modifications. She had
agreed to leave 25 per cent of the land for common purposes such as roads
and parks. She gave her own design for earmarking plots and shopping area.
The Local Government Department, Punjab in exercise of its power under
Section 192 of the Act, accorded sanction to the Town Planning Scheme
approved and submitted by the Municipal Corporation. After the scheme was
D duly notified by the Government, the public land along with other land was
developed by the appellant as per scheme. Roads were carved out, sewage
as well as water facilities were installed and the suit land, i.e., 3 kanals 16
marlas which was to form a green park, was also developed. The dispute in
these appeals pertain to land measuring 3 kanals 16 marlas which was reserved
E under the scheme as open space to develop a park to provide lung space to
the inhabitants of the locality.

In the year 1976, when the scheme had attained finality and steps in
pursuance thereto had been completed, plaintiff-respondents Nos. l and 2
who are. none other than the sons of the Smt. Rajinder Kaur, instituted the
F present suit claiming themselves to be in possession ofthe suit.land measuring
3 kanals 16 marlas and alleging that the appellants were bent upon taking
forcible· possession of the suit land, filed the suit for perpetual injunction
,.
restraining the appellants from taking forcible possession of the same.

Appellants filed their written statement stating that the suit land had
G already been developed as a park as per the Town Planning_ Scheme and was
being used as such by the inhabitants of the locality. It was asserted that
before developing the area, statement of~wnership was prepared according
to which Rajinder Kaur, Respondent No. 3 was recorded as owner of the suit
\and. The cultivating possession of the· plaintiffs over the suit land was
H denied. It was alleged that the Town Planning Scheme of the area was notified
MUNICIPAL CORPN. LUDHIANA v.B.B. SINGH [BHAN, J.] 859

and the plaintiffs-respondents did not raise any objection and after the A
sanction of the Town Planning Scheme possession was taken by the
Corporation of the common areas for development as per scheme. Roads and
park were developed as per scheme wh~ch were being used as such by the
inhabitants. On the pleadings of the parties the trial court framed the following
issues:
B
"l. Whether the plaintiff is entitlea to the injunction as prayed for?
OPP.
2. Whether the suit has become infructuous as alleged? OPD.
3. Relief."
c
After taking into consideration the evidence produced by the parties,
the trial Court concluded that the suit land was left as a park in the scheme
which was duly developed and was being used as such by the inhabitants
of the locality. It was held that the respondents were not in possession of
the suit land. Accordingly, the suit filed by the plaintiffs-respondents was D
dismissed.

Aggrieved against the order of the trial court, respondents filed an
appeal which came up for hearing before the Additional District and Sessions
Judge, Ludhiana, and was accepted. It was held that the respondents were
owners in possession of the suit land and, therefore, they were entitled. to the E
injunction, prayed for.

Aggrieved against the aforesaid order, the Municipal Corporation filed ,
an appeal in the High Court being Regular Second Appeal No. 2315 of 1988. ·
The inhabitants of the locality, who are the appellants in Civil Appeal No.
15341 of 1996, filed an application under Order 1 Rule 10 seeking impleadment .F
which was rejected. Learned Single Judge affirmed the finding of the first
appellate court. It was held that the finding recorded by the first appellate
court regarding possession was a finding of fact which could not be interfered
with in the second appeal. One of the reasons which persuaded the learned
single Judge to come to this conclusion, was that the sanctioned scheme and
the site plan attached fo the sanctioned scheme, w~re not brought on record. G

Aggrieved against the aforesaid order of the learned single Judge, the
present appeals have been filed.

Plaintiffs-respondents produced six witnesses including Shri H.L. Sethi,
H
860 SUPREME COURT REPORTS [2004] SUPP. I S.C.R.

A PW2 who was appointed as Local Commissioner to inspect the premises. He
inspected the premises and reported that there is no park in the property in
dispute. Other five witnesses, i.e., PWI and PW3 to PW6 supported the
allegations made by the plaintiffs-respondents. In rebuttal the appellant also
produced six witnesses and documents DI to D38 showing that the town
planning scheme was prepared at the behest of Rajinder Kaur, mother of the
B plaintiffs-respondents and was developed as per scheme, but, the sanctioned
scheme or its site plan were not brought on record.

This Court on 18th November, 2003, being of the opinion that the
controversy could not be effectively adjudicated without the scheme, directed
C the learned counsel for the appellants to make available the original records
containing the scheme for the perusal of the Court. In the interest of justice
and for an effective decision of the ca5e, the Court also directed the Deputy
Commissioner, Ludhiana, to carry out an inspection of the land covered by
the Scheme known as Sampuran Colony, Model Gram, Ludhiana, (Planning
Scheme Area No. 6 Part-IIIA} and submit a report as to the status of occupancy
D of the plots carved out in the sanctioned scheme and also the status of land
admeasuring 3 .16 Kanals left in the scheme as open space.

In compliance with the above-said directions of this Court, the Deputy
Commissioner personally went to the spot and inspected the same on 31st
December, 2003 in the presence of the appellant-corporation, represented by
E Shri Harjinder Singh, PCS, Joint Commissioner, Municipal Corporation,
Ludhiana and Shri P.K. Garg, Municipal Town Planner, Ludhiana and
respondents represented through S/Shri Jatinder Bachan Singh Grewal and
Satinder Sampuran Singh Grewal. Apart from these Shri Kuldip Singh, PCS,
Sub Divisional Magistrate, Ludhiana (West), Shri Hamel( Singh, Divisional
F Town Planner, Ludhiana, Shri Ajay Kumar, Tehsildar Ludhiana (West) and
some other prominent persons of the area were also present at the time of the
inspection. Deputy Commissioner sent his report to this Court vide
communication No. 470/DCR dated 9.1.2004. He attached a plan of the Sampuran
Colony along with his report. In all there are 39 plots. Except three plots which
are vacant, construction has been put up on all other plots. As per report and
G the attached plan the suit land is an open space lying in the centre of the
scheme without any sort of structure on it. Few photographs showing that
the suit land was vacant, were also attached. A copy of the report was
supplied to the learned counsel for both the parties. Learned counsel for the
respondents filed his objection to the report.
H
MUNICIPAL CORPN. LUDHIANA v.B.B. SINGH [BHAN, J.] 861
Learned counsel for the parties have been heard at length. A
We have perused the oral testimony of the witnesses produced by the
respective parties. We have also perused the scheme which was finally
approved by the State of Punjab under Section 192 of the Act as well as the
other attending documents (Ex. D-1 to 0-38) pertaining to the submission of
the scheme, objections filed by Rajinder Kaur and her statement agreeing to B
leave 25 per cent of the area for common purposes. We have also seen the
plan which was prepared at the time of the approval of the scheme as well
as the report of the Deputy Commissioner along with the site plan attached
with it.

The Municipal Corporation, as noted earlier, had notified the Town C
; Planning Scheme duly framed under Section 192(2) of the Act. To the said
scheme Rajinder Kaur, mother of the plaintiff-respondent Nos. I and 2 filed
her objections. She had appeared personally before the Building
Superintendent, Municipal Corporation on 5th July, 1968. She projected herself
to be .the owner of the land. The objections filed by her were partly accepted D
and the scheme was modified as per her desire. She had agreed to leave 25
per cent of the land for certain common purposes like roads and park etc.
After due consideration the Local Government Department, Punjab approved
the town planning scheme and sanctioned it under Section 192 of the Act.
The scheme was notified. Public land along with other land was developed
as per scheme. Roads were carved out, sewage as well as other facilities were E
installed and the suit land was left as a park for the use of the inhabitants
of that colony. After the scheme had attained finality in the year 1976, the
present suit was filed by the sons of Rajinder Kaur stating that Rajinder Kaur
had no interest or right in the property and they were the owners in possession
of the land measuring 3 kanals 16 marlas and sought for perpetual injunction p
restraining the appellant from taking forcible possession.

Under Section 192 of the Act the Municipal Corporation is entitled to
draw up a building scheme for the built area and the town planning scheme
for un built area which may among other things provide for the restriction of
the erection or re-erection of buildings, the prescription of a building line on G
either side or both sides of any street existing or proposed, and the amount
of land in such unbuilt area which is to be utilised for public purposes
including the use as public streets.

For every locality green spaces and green belts have to be provided to
H
862 SUPREME COURT REPORTS (2004] SUPP. 1 S.C.R.

A provide lung space to the residents of the locality. A provision for green park
was made by the Municipal Corporation keeping in view the minimum
requirement to provide open/green space to the residents of the locality.
Rajinder Kaur, mother of the plaintiff-respondents herself had submitted a lay
out plan which comprised the present suit land. She had herself agreed to
leave 25 per cent of the area under the scheme to be used by the inhabitants
B of the locality for common purposes including the open space area which is
in dispute. The documentary evidence which has come on record in the form
of the original scheme as well as the documents Dl to D38 and the report
submitted by the Deputy Commissioner conclusively shows that the suit land
measuring 3 .16 kanals was left in the scheme to be used as open space for
C the use of the residents of the locality.
1--
Map attached with the report of the Deputy Commissioner and the site -x_
plan attached with the scheme completely tally with each other. In the scheme
11
3 .16 kanals of land was left as open space in the centre surrounded by houses
on three sides. The photographs produced also show that the land is lying
D vacant and is being used by the inhabitants for common purposes. It may be
noted that the plots carved out in the scheme were sold by Rajinder Kaur as
well as her sons including the plaintiffs-respondents. Rajinder Kaur and
plaintiffs/respondents could not have sold the land without getting the scheme
sanctioned as plots. It is well-known and judicial notice can be taken of the
E fact that residential plots sell at a much higher price than the agricultural land.
To sell the land as plots,. a part of the land has to be left to provide for
common purposes such as roads, community centre, schools and parks.
Having taken advantage of selling the plots in a developed colony and
charging a higher pr~ce; which were purchased by the inhabitants with the
understanding that civic ·amenities including the park were well provided for,
F the plaintiffs/respondents cannot be permitted to tum around to claim the
land left in the scheme for being used as a park as their personal property.

In view of the documentary evidence, reliance cannot be placed upon
the oral testimony of the witnesses who wen( produced by the plaintiffs-
respondents. In our considered view, the land measuring 3.16 kanals was left·
G in the scheme for the use of the residents of the locality. Contentions raised
by the learned counsel for the plaintiffs-respondents that the suit land did no:
form part of the town planning scheme or tht; land continued to be owned
by the plaintiffs-respondents and that they were in exclusive possession
thereof, cannot be accepted.
H
MUNICIPAL CORPN. LUDHIANA v.B.B. SINGH [BHAN, J.] 863
For the reasons stated above, the appeals are allowed. The judgment A
and order of the learned Single Judge of the High Court and that of the first
appellate Court are set aside. The order of the trial court is restored and the
suit filed by the plaintiffs-respondents is dismissed with costs throughout.

B.B.B. Appeals allowed.
B