Public Using Private Property As Dump Doesn't Divest Owner's Possession: Punjab & Haryana HC Restrains Municipality From Changing Nature Of Land

Observing that the use of property by Municipal Corporation as a dump site "has no right to change the nature of the property", the Punjab & Haryana High Court has made it clear that a true owner is not divested from possession of the property even if the garbage is thrown on it by the pubic.The land in question was used by the Municipal Corporation of Ludhiana for dumping site since 15 years and construction to raise portable compactor for the "welfare of general public" had started. Plaintiffs claimed to be the true owner of the property and said the land was never acquired by the Government.Justice Gurbir Singh said, "the possession of the property on the vacant plot always vests with owner and even if the garbage is being thrown on the same by the public, it does not divest the true owner from its possession."The Court further referred to High Court's decision in Bhan Singh vs. Tej Singh, 1997 wherein it was held that mere acts of user such as throwing rubbish does not establish the possession.A reference was also made to Chairman, Indore Vikas Pradhikaran vs. Pure Industrial Coke & Chemicals Ltd. in which the Supreme Court held that the right to property is not only a constitutional right but also a "human right" in line with Article 17 of the Declaration of Human & Civic Rights of 26.08.1789.These observations were made in response to the plea filed by one Bipandeep Kaur and others who claimed the ownership over land which was used by the Municipality for throwing garbage. The petitioners had filed revision petition against judgment passed by Additional Sessions Judge, Ludhiana whereby appeal against the order passed by Civil Judge (Junior Division), Ludhiana, on an application moved by the plaintiffs-petitioners under Order 39 Rule 1 and 2 CPC, for grant of temporary injunction, had been dismissed.The Municipality contended that the land is used for public welfare and not for any commercial use and the petitioners have failed to prove the ownership.After hearing the submissions, the Court noted that plaintiffs are claiming ownership of the suit property on the basis of a copy of "jamabandi" for the year 2007-08.The Court added that the Municipal Corporation has not placed any document on the file to show that the suit property is declared public street or is acquired in any manner. However, it has been submitted that 25% of the area is reserved for common purposes i.e. road, park, street etc., but there is nothing on record as to which portion of the Khasra Number was reserved for the common purposes, noted the Court.The bench considered two questions, (i) whether defendant Municipal Corporation, Ludhiana can use the property, owned by a private party, without acquiring such land and without paying any compensation to the owner? (ii) whether an open plot, without any construction, even if used as a dump, can it be considered that the original owner is ousted from the possession?While answering them it said that, "No document has been placed on file under what circumstances the Khasra Number in question is shortlisted for installation of portable compactor. The defendant Municipal Corporation has not produced any document that property in question is already declared to be a street or public dump."The Court observed that as per provision of Section 45 of the Land Revenue Act, there is presumption in favour of the entries recorded in the record of rights i.e. jamabandi. The defendants are not having any document in their favour and have not been able to demarcate the land and it is not the case of the defendants that the suit property does not fall under the concerned Khasra number.Adding that the defendants cannot make any construction on the suit property till the disposal of the case, the Court said, "the possession of the property on the vacant plot always vests with owner and even if the garbage is being thrown on the same by the public, it does not divest the true owner from its possession."The bench also highlighted that the Corporation cannot say if it is found that suit property is owned by plaintiffs, then they will acquire the land under the Right to Fair Compensation Act, 2013.Consequently, the Court opined that, "plaintiffs are prima facie proved to be the owners of the suit property. The defendants are not having any better title. So, the defendants cannot change the nature of the suit property. The use of property as a dump has no right to change the nature of the property. The defendants have failed to show any provision of law that the plaintiffs can be deprived of the suit land, without acquiring the same, either by the agreement or in accordance with law."Hence, the plea to grant temporary injunction was allowed, stating that the respondent Corporation, its agents, servants, attorneys, assignees, employees etc. are restrained from making a dump over the suit property, as mentioned in the heading of the plaint, till the disposal of the suit.Appearance: Sudeepti Sharma, Advocate...

Public Using Private Property As Dump Doesn't Divest Owner's Possession: Punjab & Haryana HC Restrains Municipality From Changing Nature Of Land

Aiman J. Chishti

Tags