Punjab-Haryana High Court
(O&M) Subhash Chander vs Improvement Trust Pathankot And ... on 30 January, 2023
[305] IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
RSA-285-1991
Date of Decision :30.01.2023
SUBHASH CHANDER ...Appellant
versus
IMPROVEMENT TRUST PATHANKOT AND ORS. ....Respondents
Coram : Hon'ble Mr. Justice B.S. Walia
Present : Mr. Vishal Aggarwal, Advocate for the petitioner.
Mr. Kavita Arora, Advocate for the respondents.
***
B.S. Walia, J. (Oral)
[1] Regular Second appeal has been filed against judgment and
decree dated 08.10.1990 passed by the learned Additional District Judge,
Gurdaspur in Civil Appeal No.22/98 in case titled as Subash Chander vs.
Improvement Trust, Pathankot and another upholding the judgment and
decree dated 14.10.1987 passed by the learned Sub Judge Ist Class,
Pathankot vide which the civil suit filed by the appellant/plaintiff for a
decree of permanent injunction for restraining the respondents/
defendants from forcibly dispossessing/dismantling/demolishing the shop
marked as ABCD and shown in red colour in the site plan attached with
the plaint situated in village Saili, Pathankot, unless he was provided
with alternative shop accommodation.
[2] On the pleadings of the parties, the following issues were
framed:-
1. Whether the plaintiff is owner in possession of
the property in dispute? OPP
2. Whether the plaintiff is entitled to the injunction
as requested for ? OPP.
3. Relief.
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RSA-285-1991 [2]
Thereafter,on the basis of the evidence led, qua issue No.1, it was held
that although the appellant/plaintiff had ceased to be owner of the
disputed land/property after its acquisition by the respondents/defendants,
yet the appellant/plaintiff continued to be in possession over the disputed
structure and accordingly, issue No.1 was decided in his favor, qua
possession but against him, regarding ownership.
[3] As regards issue No.2, learned trial Court held that the
compensation in respect of the acquired site having been deposited and
the appellant/plaintiff not having filed appeal against the verdict of the
Court regarding the assessment of the compensation after depositing of
the compensation assessed by the competent Court for the acquisition of
the disputed structure as well as the site covered by the same, the
respondents/defendants-Trust had the right to acquire its possession and
the appellant/plaintiff had no right to remain or continue in possession
over the same and that the respondents/defendants in the circumstances
could not be restrained from taking possession thereof. Accordingly,
issue No.2 was decided against the appellant/plaintiff.
[4] As regards the claim for alternative accommodation before
dispossessing the appellant/plaintiff from the disputed structure, learned
trial Court referred to Section 27 of the Punjab Town Improvement Act,
1922 (for short - " the Act") which is reproduced as under:-
"Any resident house-owner who is likely to be
displaced by the execution of any scheme under this
Act, may apply to the trust to be re-housed, and no
such scheme shall be put into execution until a re-
housing scheme as provided for in Section 26 for the
re-housing of such resident house-owners as may
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RSA-285-1991 [3]
apply under this Section has been completed."
and held that claim would be attracted in terms of Section 27 of the Act
ibid only in case the same pertained to a residential house whereas the
dispute in the instant case was regarding the structure raised for running a
brick kiln and presently, allegedly being used for running a Karyana shop
by the appellant/plaintiff, accordingly, the disputed structure / or
business in the premises in respect thereto was not covered under the law
contained in Section 27 of the Act, therefore, it was not mandatory for
the respondents/defendants to provide the appellant/plaintiff with
alternative accommodation before taking possession of the disputed
property, therefore, the appellant/plaintiff could not be held entitled to
relief of a permanent prohibitory injunction against the
respondents/defendants. Accordingly, case on the issue was decided
against him and in view of the same, the suit was dismissed vide
judgment and decree dated 14.10.1987.
[5] The learned Additional District Judge, Gurdaspur dismissed
the appeal filed by the appellant/plaintiff while affirming the judgment
and decree dated 14.10.1987 passed by the learned Sub Judge, 1st Class,
Pathankot. Learned Additional District Judge, Gurdaspur while relying
upon the provisions of Sections 26 and 27 of the Act ibid held that
rehabilitation was permissible only qua a residential house which had
been acquired for execution of any scheme under the Act, whereas under
Section 26 of the Act it was the sole discretion of the Trust to frame a
rehousing scheme as in the opinion of the Trust was required to be
provided for such persons who had been displaced in execution of any
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RSA-285-1991 [4]
scheme under the Act, unlike the provision of Section 27 of the Act ibid
which could be enforced through a Court, whereas the provision of
Section 26 of the Act could not be enforced through a Court as the
discretion laysolely with the Improvement Trust to frame rehousing
scheme and since the shop in question was being used as a office for a
brick kiln and the appellant/plaintiff had made a reference to the learned
District Judge and got enhanced compensation, the appeal was dismissed.
[6] Learned Counsel for the appellant contended that pursuant to
the decision by the Courts below, it is learnt that the respondents have
taken a decision to release some of the land of the scheme. However,
neither was the said point in issue before the Courts below nor is there
any material in respect thereto on the record. Learned Counsel contends
that in the circumstances he does not press the instant appeal but prays
for liberty to represent to the respondents for consideration of the
appellant's prayer for release of land in accordance with lawas per
scheme if any framed.
[7] Per contra, learned counsel for the respondents-Trust
contends that the sole argument of the appellant/plaintiff is of his not
having been provided with alternative accommodation qua the shop
along with structure which was acquired under the scheme but he had
failed to show any legal right in respect thereto or that Section 27 of the
Act ibid was applicable and the same provided for rehabilitation only in
case of acquisition of residential property whereas admittedly in the
instant case, the acquired premises was a shop structure. Besides, as is
evident from the judgment and decree dated 089.10.1990 passed by the
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RSA-285-1991 [5]
learned Additional District Judge, Gurdaspur, the appellant/plaintiff had
made a reference to the learned District Judge and got enhanced
compensation.
[8] I have considered the submissions of learned counsel for the
parties.
[9] Admittedly, the sole claim of the appellant/plaintiff is for
being rehabilitated pursuant to acquisition of the shop and structure
thereon. However, the appellant on a reference made by him to the
learned District Judgegot enhanced compensation. Learned Counsel,
neither from the pleadings nor by reference to any provision of lawhas
been able to substantiate the claim for rehabilitation. No other point has
been argued.
[10] In the circumstances, no question of law much less
substantial question of law arises for consideration. Accordingly, finding
no merit in the appeal, the same is dismissedbut with the liberty as prayed
for by the learned counsel for the appellant.
(B.S. Walia)
Judge
30.01.2023
'Amit'
Whether speaking/ reasoned : Yes/No
Whether reportable : Yes/No
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