Green Park Association (Regd.) ... vs Corporation Of Delhi & Another
1999 Latest Caselaw 1119 Del

ORDER

Dr. M.K. Sharma, J.

1. This petition is directed against the order dated 17th August, 1991 passed by the Sub Judge, Ist Class, Delhi in Suit No. 15/1987 disposing of the execution application dated 13.7.1987 together with an application under Section 151 CPC filed by the petitioner herein praying that the respondent/judgment debtor be restrained from making any construction over the plot in question.

2. A suit was filed by the petitioner herein as plaintiff in the year 1979 against the respondents as defendants in which a decree was sought for, for permanent injunction restraining the defendants. In the aforesaid suit a decree was passed on 19.8.1986 directing removal from the suit premises all junks, confiscated material, malba, building material and construction of the Engineering Department, stores of Engineering Department and everything else not connected with the school land and to restore the entire plot of land for purposes of the school only within 60 days from the date of the said order. A contempt application was also filed by the petitioner herein which was, however, dropped at the request of the petitioner when the Divisional Office of the Executive Engineer removed the aforesaid malba etc. from the site and complied with the order. An execution application was filed by the petitioner alleging that after 2.7.1991 the respondents had again started using the construction for the purpose of office of the Executive Engineer of the MCD. It was further alleged that the aforesaid user is for the purpose other than for the purpose of the school and as such the decree is to be enforced and prayed that the immovable properties of the respondent may be attached and appropriate compensation may be awarded. The judgment debtor, however, contested the aforesaid proceedings contending, inter alia, that subsequent to the passing of the decree the respondent by a resolution dated 24.6.1987 changed the nature of the premises through the aforesaid resolution passed by the Standing Committee of the Municipal Corporation of Delhi whereby the lay out plan has been revised and, therefore, the execution application has become instructions in view of change of the resolution and change in the lay out plan. A copy of the aforesaid resolution is on record and is also extracted in the impugned order. It is stated in the said resolution that as per the zonal plan, the site was shown for an existing primary school but as per the Zoning regulations of master plan a minimum area for primary school is 1.5. area for school having 600 students. Therefore, about 0.22 acres of the area at site is in excess of minimum required site and the land use as per the master plan for the area was for residential. It was also stated that municipal offices could be located even in a residential area and, therefore, from the planning point of view there was no objection if 0.22 acres of area was utilised for Municipal Officer's (Executive Engineer's) Site Office as proposed by the Engineering Department. The aforesaid proposal for revision in the lay out plan of Green Park & Extension was placed before the Standing Committee for approval and the Standing Committee approved the said proposal to the effect that the area of primary school be reserved as 1.5 acres in accordance with the provisions of master plan and the additional area of 0.22 acres be earmarked for municipal offices out of the primary school site.

3. It is the stand of the respondent that with the passing of the aforesaid resolution by the competent authority in terms of the DMC Act, nature of the premises in dispute has been changed and thus the decree obtained by the petitioner has become infructuous and the execution application is not maintainable. The Sub-Judge, Ist Class upheld the aforesaid objection of the respondent holding that the decree stands satisfied and that if the petitioner is in any manner aggrieved by the aforesaid resolution the petitioner should challenge the aforesaid resolution by means of a separate suit, if so advised but it cannot file another, execution application for challenging the resolution dated 24.6.87 in the garb of getting the decree executed

4. I have heard the learned counsel appearing for the parties. Counsel appearing for the petitioner submitted that the executing court acted illegally in treating the decree as satisfied. He also submitted that the injunction granted by the trial court remains in force in perpetuity the same having become final and binding on the parties and, therefore, it could not have been held by the Sub-judge that the decree stood satisfied. He also submitted that the subsequent action on the part of the respondent in changing the nature of the premises and revising the lay out plan is illegal and without jurisdiction. In support of his contention, the learned counsel relied upon the decision of the Supreme court in Bhavan Vaja & Ors. Vs. Solanki Hanuji Khodaji Mansang & Anr.

and also the decision in Pt. Chet Ram Vashist (Dead) by Lrs. Vs. M.C.D. 1994 (4) SCALE 695.

5. Counsel for the respondent, however, submitted that the respondent has a site office at the suit land which is looking after the basic needs of the residents of the area concerned. She also submitted that since the respondents have been empowered under the provisions of the Act to make out a lay out plan it also, therefore, has a natural corollary the power to revise and amend such lay out plan and when the respondents taking recourse to the aforesaid power have changed the lay out plan, the same if at all could have been a subject matter in a separate proceeding and could not be challenged in the present proceedings. She also relied upon the decision of this court in Green Park Welfare Association & Ors. Vs. MCD & Ors. .

6. In the light of the aforesaid submissions, I have also perused the records of the case. In the suit filed by the petitioner, a decree was passed for mandatory as well as for perpetual injunction. A copy of the judgment of the trial court decreeing the suit for mandatory and permanent injunction is placed on record. Issue No.1 which was decided by the trial court was in the following terms:-

1. Whether the plot in question is being misused by the defendant? OPP.

Issue No.2 was to the effect that if Issue No.1 is proved, whether the plaintiff is entitled to the relief claimed. The aforesaid issues were decided by the trial court in favour of the petitioner and against the respondents holding that the petitioner is entitled to the injunction as prayed for. It was also held by the trial court that the aforesaid suit land was being misused by the respondent by running an office of the Engineering Department and by dumping Junks, confiscated material, malba, building material and construction of the Engineering Department at the said plot of land.

My attention is also drawn to para 20 of the said judgment whereunder the trial court granted relief to the petitioner to the effect that the defendant corporation would remove from the plot of land all junks, confiscated material, malba, building material and construction of the Engineering Department, stores of Engineering Department and everything else not connected with the school and restore the entire plot of land for the purposes of the school only within 60 days from the order. The aforesaid judgment and decree was passed on 19.8.1986 and the execution application was filed on 13.7.1987 seeking for a relief that the judgment debtors be restrained from making any construction over the plot in question. During the course of arguments strong reliance was placed by the respondent on Resolution No. 782 of the Standing Committee of the Municipal Corporation of Delhi dated 24.6.1987. By the aforesaid resolution, the area of the primary school was reserved as 1.5 acres in accordance with provisions of the master plan and the additional area of 0.22 acres was earmarked for municipal offices out of the primary school site. The lay out plan as earlier approved by the Municipal Corporation of Delhi included an area of 1.72 acres for the primary school site. The aforesaid land was kept reserved for the school on which the said primary school is existing even as of today. The said land was kept apart for the aforesaid purpose while granting approval to the lay out plan. However, the respondent on the aforesaid part of the land had office of the Engineering Department in view of which the aforesaid decree was obtained by the petitioner. Subsequently, however, the respondent sought to change the nature of the premises by revising the lay out plan by exercising powers under Section 313 of the Act. Out of the aforesaid land reserved for the primary school site, an area of 0.22 acres is sought to be carved out for construction of a permanent office of the Executive Engineer. Although the said land as per the master plan of the area is for residential but since the municipal offices could be located in the residential area, therefore, the aforesaid area of .22 was sought to be utilised for municipal office of the Executive Engineers Site Office as proposed by the Engineering Department.

7. The issue, therefore, which arises for my consideration is whether the aforesaid action on the part of the respondent could be said to be legal and valid. It was vehemently submitted by the respondent that the respondents have been vested with the power to make out lay out plan and approve the same and, therefore, as a necessary corollary to the aforesaid power it also has the power to revise and amend the said lay out plan as to change the same to cope with the changing need of the time. In support of her submission, counsel for the respondent relied upon the decision in Greater Kailash Welfare Association's cases (Supra).

8. Learned counsel appearing for the petitioner, however, submitted that the decree passed by the trial court was to have effect in perpetuity and, therefore, the respondent as against whom a decree was passed could not have passed a resolution changing the lay out plan which is non-est in the eye of law. He also submitted that there could not have been any unilateral revision of the lay out plan by the Municipal Corporation of Delhi.

9. In Bhavan Vaja and Others (Supra) the Supreme Court has held that although it is true that an executing court cannot go behind the decree under execution but at the same time it does not mean that it has no duty to find out the true effect of 'that decree. It was further held that for construing a decree it could and in appropriate cases it ought to take into consideration the pleadings as well as the proceedings leading upto the decree and in order to find out the meaning of the words employed in a decree, the court often has to ascertain the circumstances under which these words came to be used. The aforesaid principle of law laid down by the Supreme Court is relevant when the observation of the executing court to the effect that the decree stood satisfied, is noticed. The executing court in the present case held that the decree stood satisfied, because of the revision in the lay out plan and such revision has given rise to fresh cause of action and, therefore, no execution application was maintainable. The trial court in the aforesaid decree categorically held that the land in question was being misused by the defendant and, therefore, it was held that the plaintiff was entitled to the relief as claimed for and also in that context issued injunction directing the respondent to remove from the plot of land all the malba etc. and to restore the entire plot of land for the purpose of school. When the pleadings are read in context of the aforesaid decree passed, it is apparent that the trial court held that the respondent could not have utilised the aforesaid land for the purpose of office for which it sought to use the suit land. The land was earmarked and approved in the lay out plan for the purpose of primary school site. The said plan was approved by the corporation and it passed a resolution approving the said plan.

10. In Chet Ram Vs. MCD (Supra) it was held by the Supreme Court that the two rights, namely, ownership and management are distinct and different rules and of management are distinct and different rights and that in a case of transfer of right of management the ownership continues with the person to whom the property belongs and the local authority only gets rights to manage it. It was further held tht the corporation as custodian of civil amenities and services may claim and that would be proper as well, to permit the Corporation to regulate, manage, supervise and look after such amenities but whether such a provision can entitle a corporation to claim that such property should be transferred to it free of cost appears to be fraught with insurmountable difficulties. It was in specific words held that the law did not appear to be in favour of the Corporation although public purpose is, no doubt, a very important consideration and private interest has to be sacrificed for the welfare of the society. But when the appellant was willing to reserve the two plots for park and schools then he was not acting against public interest but it could not be stretched to create a right and title in favour of a local body which almost would be entitled to manage and supervise only. In the aforesaid the Supreme Court also noticed the provisions of Section 313 of the D.M.C. Act. After referring to the provisions of the said section in the said chapter, it was held that there was no provision in the said chapter or any other provision in the Act which provides that any space reserved for any open space or park shall vest in the Corporation and that even a private street could be declared to be a public on the request of the owners of the building and then only in vests in the Corporation. It was also held that in absence of any provision, therefore, in the Act the open space left for school or park in a private colony could not vest in the Corporation. It was held in the said decision that since no right or interest of the Corporation is created in the land which is set apart for school or park in a private colony, the resolution of the Standing Committee that the area specified in the lay out plan for the park and school shall vest in Corporation free of cost, was not in accordance with law.

11. In view of the aforesaid settled position of law the respondent could not have acquired ownership right over the said 0.22 acres of land which was earmarked only for the use of a primary school, without acquiring the same in accordance with law for its own purpose. All that it has is a right of management and supervision of the amenities to be provided in the said land. The respondents could acquire ownership of the land in accordance with law and thereafter only could proceed to change the land user in the lay out plan and revise the said lay out plan accordingly. In this particular case, the respondents have treated the said land as if it has vested on it and their own land which, however, is not a correct position in view of the decision of the Supreme Court in the case of Chet Ram (Supra). Therefore, the respondent could not have proceeded to deal with the same as if it is the own land of the Corporation and sought to use the same for its own purpose by changing the nature of the same.

12. Section 313 of the act empowers the Commissioner to anction lay out plan but the said power could not be extended to contemplate vesting of the said land for a different purpose to vest in the corporation or to be transferred to it. Sub-section (5) of the said Section indicates that the land which is the subject matter of the lay out plan could not be dealt with by the owner except in conformity with the order of the Standing Committee. In the present case, although a resolution has been passed by the Standing Committee carving out 0.22 acres of land for the purpose of establishment of the Office of the Executive Engineer, the same cannot be given effect to, so long the respondent does not acquire ownership over the said land.

13. In the light of the aforesaid discussion, it is held that the executing court was not justified in holding that the decree stood satisfied and the fresh cause of action has arisen with the change and revision of the lay out plan. The said order being illegal and without jurisdiction is set aside. It is held that the respondent would not be entitled to change the land-user in respect of the said land till it is acquired by the corpora-

tion for its own use in accordance with law and then only the resolution changing the nature of land user, could be given effect to. In terms of the aforesaid order, the petition stands disposed of.