Dismissed

Banarsi Lal Etc., v. Amritsar Imp. Trust Asr.

Punjab & Haryana HC22 May 2014RSA/3258/1984

Case brief

AI extract

What is this about?

The High Court disposed of an appeal against dismissal of a suit for permanent injunction. The court held that State Government Rules framed under Section 73 of the Punjab Town Improvement Act, 1922 prevail over Trust Rules framed under Section 74. Consequently, the 1975 Rules applied, offering no preferential rights to the appellants, and the appeal was dismissed.

What did the court decide?

The appeal was dismissed as the plaintiffs were not entitled to preferential treatment under the applicable rules.

Banarsi Lal Etc., Vs Amritsar Imp. Trust Asr. — Land Acquisition | Punjab & Haryana HC (2014)

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RSA No.3258 of 1984 (O&M)

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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RSA No.3258 of 1984 (O&M) Date of decision:30.06.2014

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Banarsi Lal and others

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...Appellants

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Versus

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Amritsar Improvement Trust, Amritsar ...Respondent

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CORAM: Hon'ble Mr. Justice Rakesh Kumar Jain

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Present: Mr. J.K.Sibal, Senior Advocate, with Mr. Dhawal Bhandari, Advocate, for the appellants.

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Mr. J.S.Toor, Advocate, for the respondent. *****

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RAKESH KUMAR JAIN, J .

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The plaintiffs are in appeal against the judgment and decree of both the Courts below by which their suit for permanent injunction has been dismissed.

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All the plaintiffs, espousing a common cause, filed suit for permanent injunction to restrain the defendant-Improvement Trust, Amritsar (for short “the Trust”) from putting on sale or in any manner alienating the land forming part of plots no.1, 2, 2-A, 3, 3-A, 4 and 5, outside the Hall Gate, Amritsar, in terms of Section 24 of the Punjab Town Improvement Trust Act, 1922 (for short “the Act”). All the plaintiffs have claimed that

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they are sitting tenants for more than two years on their respective plots over which they have constructed their shops and as per the Scheme, the land underneath their shops has been acquired. As per the Land Disposal Rules of the Trust, the plaintiffs are the 'Local Displaced Persons” and have a preferential right to acquire the plots under their tenancy as it is not required by any other department of the Punjab Government. They have claimed that being the sitting tenants, they are entitled for allotment of the plots at reserved price and since the Trust wanted to sell the plots to the other persons, the suit had to be filed.

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While contesting the suit, the defendant raised objection that the suit for injunction is not maintainable; property in dispute has been duly acquired; there was no obligation on the part of the defendant to allot plots to the plaintiffs, who have no legal right to enforce in the Court of law and are not entitled to the injunction, as prayed for. It was denied that the plaintiffs are the tenants in the plots under the Municipal Committee, Amritsar, as alleged, as the plaintiffs paid merely license fee and not the rent; notice under Section 24 of the Act was duly published, objections were invited, considered by the State Government, while approving the Scheme and notifying the same. The Trust gave notice in writing under Section 45 of the Act, regarding the Nazul land in question, vested in the Municipal Committee, called Municipal Corporation, Amrisar, as of now. It was also pleaded that even if the plaintiffs are proved to be tenants, their case is not covered under the Land Disposal Rules framed by the defendant and also denied that any promise was extended to the plaintiffs to allot the plots to

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them.

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The plaintiffs filed replication and on the pleadings of the parties, following issues were framed:-

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“1. Whether the suit is not maintainable for the reasons given in para 1 of the preliminary objections of written statement?OPD.

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Whether the plaintiffs were tenants of the Municipal Committee, Amritsar now known as Municipal Corporation, Amritsar for a period of 24 years or more before the notification under Section 24 of the Punjab Town Improvement Act?OPP.

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If issue No.2 is proved in affirmative, whether the plaintiffs are entitled to alternative accommodation in the scheme area before the sale of plots by way of public auction and have a preferential right to purchase the plots?OPP.

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Whether the defendant assured the plaintiffs for alternative accommodation as alleged in para 19 of the plaint. If so, to what effect?OPP.

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Whether the act of defendant in putting the plots under possession of the plaintiffs to sale without first offering them for sale to the plaintiff is ultra vires and illegal beyond its powers, as

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alleged?OPP.

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Whether any notice was necessary to be given to the defendant trust before filing the suit. If so, what is the effect of non-serving the notice?OPP.

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Whether the suit is bad for multifariousness?OPD.

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Whether the Civil Courts have no jurisdiction to try the present suit?OPD.

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Whether the Civil Courts have no jurisdiction to try the present suit?OPD.

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Whether the plaintiffs are entitled to the injunction prayed for? If so to what terms?OPP.

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Relief.”

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In support of their case, the plaintiffs examined PW1 B.S.Canno, Excise and Taxation Officer, Amritsar, PW2 Davinder Mohan, Clerk, Industrial Department, PW3 Harbans Lal, Retired Municipal employee, PW4 Des Raj Duggal, PW5 Tilak Raj, Clerk, M.C., PW6 Charan Dass, PW7 Om Parkash, PW8 Som Nath, PW9 Natha Singh Bhatia, Banarsi Dass, Bhola Nath and Gurdial Singh were examined as PW10, PW11 and PW12.

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On the other hand, the defendant-Trust examined DW1 Manjit Singh, S.O. alone. Documents Ex.P1 is rent note, P2 and P3 are rent receipts, P4 is rent note, P5 to P29 are the rent receipts, PW2/1 is Registration Certificate, PW11/A is rent note, PW11/B is plan, PW11/C is affidavit, PW11/D is plan, PW11/E is letter, PW11/F is publication,

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PW11/G is also publication, PW12/A to PW12/E are receipts, PW12/F is rent note, PW12/J is plan, PW12/K to PW12/N are rent notes, PW12/A to PW12/G are receipts, PW12/H is rent note, PW/U is plan, Ex.D1 is layout plan and Ex.D2 is the copy of letter dated 11.11.1977.

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The Trial Court dismissed the suit holding that the plaintiffs are not entitled to the relief prayed in the suit and for the alternative accommodation, they were also not found to have any right to compel the defendant-Trust for allotment of plots as the Land Disposal Rules were not applicable to them.

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In their appeal before the lower Appellate Court, the plaintiffs had urged that there case is governed by the Amritsar Improvement Trust Land Disposal Rules, 1951 (here-in-after referred to as the “1951 Rules”) and not by the Utilization of Land and Allotment of Plots by Improvement Trust Rules, 1975 (here-in-after referred to as the “1975 Rules”). According to the plaintiffs, they are “Local Displaced Persons” as defined under Section 2(b) of the 1951 Rules and are entitled to preference in terms of Rule 6 of the 1951 Rules. However, the lower Appellate Court rejected the contention of the plaintiffs and held that the 1975 Rules shall have precedence over the 1951 Rules and dismissed the appeal.

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Aggrieved against the judgment and decree of both the Courts below, the plaintiffs have filed this appeal in which their dispossession was stayed as far back as on 21.12.1984. Thereafter, the appeal was admitted on 10.04.1985 with stay to continue till the hearing of the appeal.

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During the pendency of the appeal, the plaintiffs-appellants

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filed miscellaneous application bearing CM-3294-C-2008 in order to place on record substantial questions of law involved in the appeal, which read as

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under:-

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“1. Whether the Courts below have erred in Law in not applying the provisions of `the Amritsar Improvement Trust Land Disposal Rules, 1951 to the case of the appellants as under the same, they were clearly entitled to be allotted the plots?

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Whether the new rules namely `Utilization of Land and Allotment of Plots by Improvement Trust Rules, 1975 have wrongly been applied by the Courts below as they do not repeal/modify the 1951 Rules?

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Whether the Courts below have erred in law in ignoring the evidence showing that the appellants were in occupation for more than 25 years as tenants of the Municipal Committee prior to notification of the scheme and were given assurance regarding allotment of plots under the scheme by the then Chairman of the Improvement Trust, Amritsar?

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Whether the Courts below have misread the documentary evidence placed on record?”

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The plaintiffs filed application bearing CM-7728-C-2013 under

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Order 41 Rule 27 CPC for adducing additional evidence. Notice in the application was issued to which reply is filed and the application is also being decided with the main appeal.

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In this application, the plaintiffs have urged that they wanted to produce on record the evidence that the Trust has abandoned the original scheme a few years ago. They wanted to produce on record application filed by Rajeev Khanna under the Right to Information Act, 2005 (Annexure A), letter addressed by the Trust to the Municipal Corporation, Amritsar (Annexure B), letter addressed by Municipal Corporation, Amritsar to Rajeev Khanna (Annexure C), letter by Municipal Corporation, Amritsar to Rajeev Khanna under the Right to Information Act, 2005 (Annexure D) and the plan of the area (Annexure E). All these documents are official documents and are not coming from the possession of the plaintiffs, therefore, in order to effectively adjudicate the lis between the parties, the application deserves to be allowed.

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Accordingly, the application is allowed and the additional evidence filed along with it is taken on record.

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The plaintiffs-appellants have also filed application bearing CM-6446-47-C of 2014 for exemption from filing certified copies of Annexures B, C & D and permission to place their translation on record. Applications are supported by affidavit and are, thus, allowed.

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Learned counsel for the appellants has submitted that though as many as four questions of law were framed and placed on record by way of an application but the basic issue involved in this appeal is as to “whether

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the case of the plaintiffs would be governed by the 1951 Rules or the 1975 Rules?”

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Learned counsel for the appellants has submitted that there is no implied repeal of the 1951 Rules by the 1975 Rules as according to him, there is no express or at least clear and maximum indication to that effect. In this regard, he has relied upon a judgment of the Supreme Court in the case of Municipal Corporation of Delhi v. Shiv Shanker, 1971(1) Supreme Court Cases 442 and referred to para 5 of the said judgment, which reads as under:-

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“The general principles governing implied repeal appear to us to have long since been settled. The difficulty is normally experienced in their application to a given case. From the passage quoted by Kapur J., from the unreported Bench decision in Raj' Kumar's case (supra) upholding the implied repeal of the Adulteration Act by the Fruit Order it seems to us that the Division Bench did not correctly and fully grasp them. We accordingly, consider it proper to broadly restate the general rule. It was laid in Paine v. State (1) that when two Acts are inconsistent or repugnant the later will be read as having impliedly repealed the earlier. As the legislature must be presumed in deference to the rule of law to intend to enact consistent and harmonious body of laws, a subsequent legislation may not be too readily presumed

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to effectuate a repeal of existing statutory laws in the absence of express or at least clear and unambiguous indication to that effect. This is essential in the interest of certainty and consistency in the laws which the citizens are enjoined and expected to. obey. The legislature, which may generally be presumed to know the existing law, is not expected to intend to create confusion by its omission to express its intent to repeal in clear terms. The courts, therefore, as a rule, lean against implying a repeal unless the two provisions are so plainly repugnant to each other that they cannot stand together and it is not possible on any reasonable hypothesis to give effect to both at the same time. The repeal must, if not express, flow from necessary implication as the only intendment. The provisions must be wholly incompatible with each other so that the two provisions operating together would lead to absurd consequences, which intention could not reasonably be imputed to the legislature. It is only when a consistent body of law cannot be maintained without abrogation of the previous law that the plea of implied repeal should be sustained. To determine if a later statutory provision repeals by implication an earlier one it is accordingly necessary to closely scrutinize and consider the true

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meaning and effect both of the earlier and the later statute. Until this is done it cannot be satisfactorily ascertained if any fatal inconsistency exists between them.”

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It is further submitted that Sections 73 and 74 of the Act, are the enabling provisions empowering framing of the relevant Rules. As far as Section 73 of the Act, is concerned, it only talks of framing of Rules for the guidance of Improvement Trusts in Punjab, for the purpose of brining out the purposes of the Act, in terms of which 1975 Rules were framed, whereas Section 74 of the Act, empowers the Trust to frame Rules for its internal governance though with the prior consent of the Government under which 1951 Rules were framed. It is further submitted that 1975 Rules have not repealed the 1951 Rules and, therefore, the plaintiffs are entitled to the plots in dispute in terms of Rule 6 of the 1951 Rules, being the 'Local Displaced Persons' as defined in Rule 2(b) of the 1951 Rules.

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He has also submitted that Rules are always prospective and in this regard, he has relied upon a judgment of the Supreme Court in the case of Ex-Capt. K.C. Arora and another v. State of Haryana and others, (1984) 3 Supreme Court Cases 281 in which it has been held that “ it is, however, a cardinal principle of construction that every statute is prima facie prospective unless if it is expressly or by necessary implication made to have retrospective effect”.

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Learned counsel for the appellants has further submitted that as per additional evidence brought on record, the scheme has been abandoned

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and, therefore, the defendant has no right to allot the shops to other persons.

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On the other hand, learned counsel for the respondent has submitted that the plaintiffs have no right to the property in dispute as concurrently held by both the Courts below and are governed by the 1975 Rules which has a precedence over the 1951 Rules. In this regard, he has relied upon a Division Bench judgment of this Court in the case of Smt. Sheo Wanti v. State of Punjab and another, 2002(3) R.C.R. (Civil) 262. It is also submitted that the scheme has not been abandoned, as alleged, and the plaintiffs cannot claim allotment of the property in dispute on the basis of the 1951 Rules, which are not applicable to them.

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In rebuttal, learned counsel for the appellants has argued that the judgment in Smt. Sheo Wanti's case (supra) is per incuriam because in the said judgment, the impression has been taken by the Court that, if there is a conflict between the Rules framed by the Improvement Trust and the Government, then the Rules under Section 73 of the Act, shall have an overriding effect. He has also cited a judgment of the Supreme Court in the case of State of U.P. and another v. Synthetics and Chemicals Ltd. and another, 1991(4) SCC 139 to elaborate the principles of “per incuriam”.

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I have heard learned counsel for the parties and perused the record.

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The Trust, vide its resolution no.221 dated 30.09.1974, framed a development scheme for the area measuring approximately 3.66 acres, outside the Hall Gate, Amritsar, under Section 24 read with Section 28(2) of the Act. Notice under Section 36 of the Act in relation to the scheme was

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published. The plaintiffs filed objections but the development scheme was submitted to the State Government and was approved. The case of the plaintiffs is that they are in occupation of the suit plots as tenants under the Municipal Committee, Amritsar and after reconstitution of the Municipal Corporation, Amritsar, they are continuing to be the tenants therein. The area covered under the suit plots is Nazul land, acquired by the Trust. The Trust published a notice in the newspapers “Daily Partap” in its issue dated 24.11.1977 that six suit plots in the scheme would be put to auction on 30.11.1977. It is claimed that As per Rule 6 of the 1951 Rules, being sitting tenants, the plaintiffs have preferential rights to acquire the same and the Trust had no legal authority to auction the said plots. The plaintiffs had claimed that they have built up their shops on the suit plots and are running their business for the last many years, but the defendant's case was that the plaintiffs are not the tenants and are having the status akin to that of the licensee. Since the issue involved in this case is about the applicability of 1951 Rules or the 1975 Rules, it would be, thus, appropriate to reproduce all the relevant Rules, which are as under:-

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1951 Rules

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“2. In these rules, unless there is something repugnant in the subject of context:-

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(b) “Local displaced person” means a person whose

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own property has been acquired by the Trust for the execution of the scheme or who had been a tenant of a

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property under the Scheme for a period of not less than one year or to the first publication of the scheme by the Trust and continued as such till the property was acquired by the Trust and includes a person who is a claimant allotable acquired evacuee property coming within the scheme.”

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“6. (1) The land available for sale may, in the first place, be offered for sale to:-

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(i) Departments of Punjab Government, local authorities and public undertakings, bodies of public utility project, bodies duly registered for public purposes or public, charitable and religious institutions, if any land is reserved for such purposes in the scheme;

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(ii) Local displaced persons in the following order:-

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(a) Owner occupiers and occupier claimants of allotable acquired evacuee properties, in whose favour allotment of such properties has actually been made by the Central Government;

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(b) Absentee landlords;

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(iii) Local displaced persons of other schemes of the Trust to whom a plot could not be given by the Trust in the order specified in clause (ii) above;

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(iv) Members of the Armed Forces who in their own name or in the names of their husbands/wives or dependent children do not own a building or building site in India;

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(v) Registered House building Co-operative Societies of the employees of Punjab Government, local authorities and public undertakings.

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Provided that offers for plots from categories under clauses (iv) and (v) mentioned above will be considered only in respect of residential plots.

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(vi) Members of Parliament and Members of Legislative Assembly hailing from Punjab and elected as such from Amritsar District who do not own any building or building site anywhere in India in their own name or in the name of their husband/wife or dependent children provided that each such member shall be entitled to allotment of residential plot only outside the walled city not exceeding in area 1000 square yards and 500 square yards respectively.

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(2) Note more than one plot of land shall be sold to a person covered or more of the categories referred to above.

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(3) Only after the claims of the categories of persons referred to have been dealt with, the remaining plots, if

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any, under the scheme shall be sold by auction or tender.”

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1975 Rules

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“2. Definitions.-- In these rules, unless the context otherwise requires,--

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(a) `Local displaced person' means a person who is the owner of a property acquired by the Trust for the execution of a Scheme and has been such owner for a continuous period of two years immediately before the first publication of the Scheme by the Trust under Section 36 of the Punjab Town Improvement Act, 1922;

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xxx xxx xxx”

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Besides the aforesaid Rules, it is also relevant to refer to Sections 73 and 74 of the Act, which are reproduced as under:-

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“73. Power of State Government to make rules.— (1) In addition to the power conferred by section 64, the State Government may make rules consistent with this Act and applicable to all Trusts or any Trust—

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(i) as to the authority on which money may be paid from the Trust funds;

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(ii) for fixing the fees payable for copies of or extracts from the municipal records furnished to the chairman under section 39;

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(iii) as to the manner of constitution of Trust services,

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the recruitment and the conditions of service of members of such services and the recruitment and conditions of service of other servants of the Trusts;

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(iv) as to the intermediate office or offices (if any) through which correspondence between the Trust and the State Government or servants of the Government shall pass;

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(v) as to the accounts to be kept by the Trust, as to the manner in which such accounts shall be audited and published, and as to the powers of auditors in respect of disallowance and surcharge;

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(vi) as to the authority by whom, the conditions subject to which and the mode in which contracts may be entered into and executed on behalf of the Trust;

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(vii) as to the preparation of estimates of income and expenditure of the Trust and as to the authority by whom and the conditions subject to which such estimates may be sanctioned;

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(viii) as to the returns, statements, and reports to be submitted by Trusts;

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(ix) to prescribe and define the mutual relations to be observed between the Trust and other local

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authorities in any matter in which they are jointly interested;

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(x) for regulating the grant of leave of absence, leave allowances and acting allowance to the officers and servants of the Trust and of the tribunal;

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(xi) for establishing and maintaining a provident or

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annuity fund, for compelling all or any of the officers in the service of the Trust or of the tribunal other than any servant of the Government in respect of whom a contribution is paid under section 94 to contribute to such fund at such rates and subject to such conditions as may be prescribed by such rules and for supplementing such contributions out of the funds of the Trust:

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Provided that a servant of the Government employed as officer or servant of the tribunal shall not be entitled to leave or leave allowances otherwise than as may be prescribed by the conditions of his service under the Government;

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(xii) for determining conditions under which the

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officers and servants of the Trust or of the tribunal, or any of them, shall, on retirement, receive gratuities or compassionate allowances; and the amount of such gratuities and

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compassionate allowances:

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(xiii) generally for the guidance of Trust and public officers in all matters connected with the carrying out of the provisions of this Act;

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(xiv) for regulating the grant of subsidies to Trusts by the State Government, the conditions under which they may be earned or forfeited and the arrangements for their repayment.

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(xv) for regulating any other matter which is required to be or may be prescribed;

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(2) All acts authorized or enjoined under this Act shall be held to be authorized or enjoined subject to such rules.

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Power of the Trust to make rules. — Every Trust may from time to time with the previous sanction of the State Government make rules consistent with this Act and with any rules made under this Act by the State Government—

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(i) for fixing the amount of security to be furnished by any officer and servant of the Trust from whom it may be deemed expedient to require security;

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(ii) for associating members with the Trust under section 13;

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(iii) for appointing persons (other than trustees and

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persons associated with the Trust under section 13) to be members of committee under section 14;

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(iv) for regulating the delegation of powers or duties of the Trust to committees or to the chairman;

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(v) for the guidance of persons employed by it under this Act;

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(vi) for fixing the fees payable for copies of documents delivered under sub-section (3) of section 36 or under section 75;

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(vii) for the management, use and regulation of dwellings constructed under any scheme under this Act;

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(viii) generally for carrying out the purposes of this

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Act.”

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There is no dispute that if 1951 Rules are to be applied, then as per Rule 6, the land available for sale has to be first offered to the 'Local Displaced Persons' which includes tenants in order of maximum period of tenancy. The plaintiffs, who are claiming themselves to be the tenants over the suit plots, would get the benefit of the preference, but there is no corresponding Rule in 1975 Rules and in case 1975 Rules are to be applied, the plaintiffs would not get any preferential treatment and, thus, the entire controversy has arisen.

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Insofar as the judgments in Municipal Corporation of Delhi's case (supra), State of U.P. and another's case (supra) and in Ex-Capt.

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K.C.Arora's case (supra) are concerned, those have no applicability to the facts and circumstances of this case in view of the fact that the matter has already been decided by a Division Bench of this Court in Smt. Sheo Wanti's case (supra) .

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In Smt. Sheo Wanti's case (supra) , the petitioner had alleged that she had purchased a piece of land measuring 400 square yards. On 08.08.1976, the Ludhiana Improvement Trust issued a Scheme for acquisition of the land. It was actually acquired thereafter and the award was given in the year 1980 and the compensation in lieu thereof was paid to the said petitioner in the year 1981. The petitioner approached this Court after a lapse of 18 years, with the prayer that a writ in the nature of mandamus be issued, directing the respondents to allot her a plot measuring 300 square yards and the said claim was made on the basis that the petitioner falls within the ambit of the 'Local Displaced Person', as defined in the 1975 Rules.

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The petitioner's counsel had argued that the Trust had framed The Ludhiana Improvement Trust Land Disposal Rules, 1964 by which the petitioner's case was covered and not by the Utilization of Land and Allotment of Plots by Improvement Trust Rules, 1975. In this regard, the Division Bench has passed the following order:-

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“9. A perusal of Section 73 of the Punjab Town Improvement Act, 1922 shows that the State Government has been given the powers to make the Rules. The power of the Trust under Section 74 is subservient to the provisions of the Act and the Rules framed by the State Government. In case of a conflict

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between the Rules framed by the Trust and the Government, the Rules under Section 73 shall have an over-riding effect. It is the admitted position that the State Government has framed Rules under Section 73. the Rules framed by the Trust have to conform to the requirements of the Rules framed by the State Government. In case of a conflict, the Rules framed by the State Government have to prevail. Resultantly, the petitioner is not entitled to claim any benefit under the 1964 Rules.”

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Thus, in view of the aforesaid interpretation given by the Division Bench, I do not find any reason to hold that the 1951 Rules would apply in the face of 1975 Rules and as there is no provision similar to that of Rule 6 of the 1951 Rules in the 1975 Rules, the plaintiffs would not be entitled to the relief, as prayed for in the suit, which has rightly declined been by both the Courts below.

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Insofar as the question of existence of the scheme is concerned, the evidence sought to be led by the appellants is not sufficient. However, in any case, the appellants are claiming preferential treatment for the allotment of the plots which is not available to them in view of the Rules which are applicable.

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In view of the aforesaid discussion, I do not find any merit in the present appeal and the same is hereby dismissed.

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(Rakesh Kumar Jain) Judge

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June 30, 2014 vinod*

Banarsi Lal Etc., v. Amritsar Imp. Trust Asr.

Case brief

What is this about?

What did the court decide?

Banarsi Lal Etc., v. Amritsar Imp. Trust Asr.

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