LUCKNOW IMPROVEMENT TRUST Vs. CH MOHD SADDIQ

JUDGEMENT

(1.) This is the defendant's appeal from the judgment and decree, dated 8th May 1945, of Shri Data Ram Misra, Civil Judge, Maliahabad, Lncknow.

(2.) Sheikh Mohammad Sadiq, his brother Mohammad Baqar, his sister Malka Begam and his mother Fahima Begam are the plaintiffs in this suit. They claimed ownership of two plots of land ABCD and EFGH marked as properties Nos. 1 and 2 in the plan attached to the decree. It appears that the two plots are 101 feet 9 inches x 57 feet and 89 feet 6 inches x 57 feet. The plot marked as property No. 1 is situated to the north of Marris Market, Lucknow, and the other plot marked as property No. 2 is to the south of the Marris Market. The plaintiffs said that in 1983 the defendant, Lucknow Improvement Trust, framed a scheme called "Marris Market Extension Scheme" which comprised only a 20 feet strip of land marked ABPQ and EPXY, but under Section 36, U. P. Town Improvement Act the entire properties Nos. 1 and 2 were notified for acquisition. On plaintiffs' protest the defendant offered to release all land except the strip of 20 feet from both the properties on condition that the strip was given free of cost, bat the plaintiffs did not agree thereto. The scheme was eventually dropped. In 1996 the defendant framed another scheme called "Revised Marris Market Extension Scheme" and published a notification under Section 36, Town Improvement Act in respect of the whole of, properties NOS. l and 2. The plaintiffs again objected and the resolution No. 7702, dated 24th April 1937, of the Trust was that the plaintiffs should transfer 20 feet strip of land to the defendant and should build on the rest of the property according to their plan and in accordance with this resolution the scheme was sent to Local Government for sanction. The plaintiffs said that the resolution bad not been communicated to them, but they came to know of it shortly before they filed the suit and they communicated their full acceptance to the defendant; that the terms of the resolution were always acceptable to them, but no chance was given to them to comply with it. The plain-tiffs contended that the revised scheme does not fall within any of the types of schemes under Section 24, U. P. Town Improvement Act, VIII [8] of 1919. According to them, the extension of' the market, which already belongs to the defendant, is not a purpose under the Act and so the proceedings for acquisition are ultra Vires. They further contended that even if the action taken for acquisition is legal then the acquisition of portions exceeding the strip of 20 feet is neither necessary for nor affected by the execution of the scheme and the acquisition of the excess portion is also against the resolution of the Trust passed in 1937. It was contended that for this reason the defendant was Liable to be restrained by injunction. The plaintiffs, therefore, prayed: (1) for issue of injunction restraining the defendant from proceeding with proceedings to acquire and take possession of (a) the entire properties 1 and 2, or (b) those portions in excess of 20 feet shown by letters QPCD, HGXY and (2) ordering defendant to take back the requisition sent to the Deputy Commissioner, Lucknow, for proceedings.

(3.) The defendant admitted that the plaintiffs are owners of the properties Nos. 1 and 2 and that a scheme was framed in 1932 bat it was abandoned. They alleged that the present revised scheme was framed in 1936, that in the public interest it was considered necessary to acquire the whole of properties l and 2 and later on in 1944 Resolution No. 9998 was also passed to that effect, that only a portion of the property could not be acquired that the Local Government had sanctioned the scheme and this sanction was notified under Section 42 of the Act and, as the Local Government is the sole judge of the validity of the scheme, it could not be challenged. It was further contended that the scheme framed was a combination of several types providing inter alia for housing accommodation for Khatiks carrying on business in Marris Market which itself was constructed under a housing accommodation scheme under Sections 24 (g) and 31, Town Improvement Act. It was further stated that the scheme provided for improvement of sanitation by removal of a public latrine situated within the area of the scheme and for roads and parking place far cars etc. all purposes under Clauses (a), (j), (k), (d), (o) and (p) of Section 23 of the Act and that in effect the scheme was really a second vegetable Sellers' House Accommodation Scheme. The defendant further contended that Section 56 (d), Specific Belief Act, applied and, further, the suit having been filed after commencement of the acquisition proceedings, injunction could not be granted. It was alleged that the Local Government was a necessary party to the suit. The following issues were accordingly framed :