CIVIL WRIT PETITION NO.21608 OF 2008 :{ 1 }: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: APRIL 07, 2011 Generous Realtors Pvt. Ltd., New Delhi .....Petitioner VERSUS State of Haryana and others ....Respondents CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? PRESENT: Mr. Ashok Aggarwal, Sr.Advocate with Mr. Naveen S. Bhardwaj, Advocate & Mr. Mukul Aggarwal, Advocate, for the petitioner. Ms. Shruti Jain, AAG, Haryana, for the State. Mr. Ashish Aggarwal, Advocate, for respondent No.4. **** RANJIT SINGH, J. The grievance made in these two Civil Writ Petition Nos.21608 of 2008 and 1445 of 2009 Generous Realtors Pvt. Ltd., New Delhi Vs. State of Haryana and others) primarily is for setting-aside the order dated 3.11.2008, Annexure P-11 (in Civil Writ Petition No.21608 of 2008). Through this order, representation filed by the petitioner for realigning 75 meter wide sector road between CIVIL WRIT PETITION NO.21608 OF 2008 :{ 2 }: Sectors 114 and 115 has been rejected. The petitioner, thus, has prayed for a direction to respondent Nos.1 to 3 to modify the tentative sectoral plan for Gurgaon Manesar Urban Complex 2021 A.D. as prepared by the drawing dated 23.4.2007, in which 75 meters wide sub arterial road is statedly provided contrary to final development plan. Plea further is that the proposed alignment alongwith the existing road as made in a manner would curtail connectivity of the road in area of Delhi. The petitioner, therefore, would seek direction for the respondents to reconsider the providing of road as per the final development plan, taking into consideration the alignment proposed by the District Town Planner, Gurgaon, through his letter dated 25.5.2007. In the second Civil Writ Petition No.1445 of 2009 filed by the same petitioner, an additional prayer is made for cancelling the memo dated 31.12.2008 (Annexure P-16), whereby a letter of intent is issued to respondent Nos.4 and 5, which is stated to be contrary to the final development plan. In this writ petition, further prayer is made for directing the respondents to re-consider the provision of road as per the final development plan. Initially, the basis of challenge in both the petitions was that final development plan was not open to be changed, once it had been approved. The emphasis was that the final development plan, which was approved, was changed to change the alignment of the road dividing Sectors 114 and 115, which could not be legally done. During the course of hearing, there was a marked shift in the stand taken by the counsel for the petitioner. Ultimately, the counsel CIVIL WRIT PETITION NO.21608 OF 2008 :{ 3 }: pleaded that the development plan could be changed but only by an authority who is competent and after following the procedure prescribed under the Punjab Scheduled Roads and Controlled Area Restriction of Unregulated Development Act, 1963 (hereinafter referred to as “Act 1963”). The counsel ultimately pleaded that even the development plans could be changed but for doing so, a proper procedure was required to be followed and such an order could only be passed by a competent authority after affording opportunity of hearing to different affected persons. Ultimately, the case as projected was that the development plan after approval was changed without following the procedure required under the Act 1963 and by an authority which was not competent to do so. The submissions on these lines were made for number of days, basing the argument that the development plan, after its due approval, has been changed, which could not be done in the manner it was so changed. Mr.Ashok Aggarwal, learned senior counsel appearing for the petitioner, indeed was forthright in conceding that if there was no change in the development plan, then whole edifice of his case would fall and so also the various assertions/allegations made in the petitions regarding the malafides etc. The factual position turned out to be different when it was pointed out by counsel for the respondents. It was clearly revealed that development plan had not been changed in any manner. The facts in Civil Writ Petition No.21608 of 2008, as pleaded by the petitioner, seeking change in the alignment of the road noticed in brief are as under. CIVIL WRIT PETITION NO.21608 OF 2008 :{ 4 }: The petitioner Company is an owner of 7.85 acres of land falling in rectangle Nos.27 and 28 in Village Bajghera, District Gurgaon. It is stated that the respondents had published a draft development plan on 11.7.2006 as per the drawing dated 27.7.2005. Final development plan was published on 5.2.2007 as per the drawing dated 14.11.2006. Copies of these draft and final development plans are annexed as Annexures P-3 and P-4. It is pointed out that road marked and shown as V-2 (d) in the development plan starting from Najafgarh in Delhi and passing through village Bajghera was in existence even before the publication of the development plan. This road was considered as inter-State road for connecting Delhi with Haryana. As per the petitioner, this road was shown in the draft development plan and was intended to be retained as part of internal circulation pattern in the sectoral plan of these sectors. It is pleaded that District Town Planner, Gurgaon, realised this mistake, when he was marking the site for community facilities in group of sectors comprising Sector Nos.109, 111, 112, 113, 114 and 115. Plea is that final development plan of Gurgaon Manesar Urban Complex was not accepted mainly on the ground that this proposal affected the land of certain influential persons. The proposed alignment, as was recommended by respondent No.3 through his letter dated 25.5.2007 (Annexure P-6) was not taken into consideration while finalising the alignment of the road in sectoral plan. In this background, it is pleaded that if the State Government wants to make any amendment in the existing provision or to deviate from any proposal made in the final published development plan, it CIVIL WRIT PETITION NO.21608 OF 2008 :{ 5 }: has to again notify a draft development plan containing such proposals/amendments for inviting objections from general public. The petitioner had served a notice under Right to Information Act for supply of information as to whether the Government of N.C.T Delhi has proposed any change in the alignment of the road. In response, the petitioner was told that there is no such approval for change. The petitioner then submitted a representation to the respondents on 5.6.2007. When the same was not being decided, the petitioner filed Civil Writ Petition No.15940 of 2007 before this Court. This writ petition was disposed of on 19.9.2008, directing respondent Nos.1 to 3 to decide and dispose of the representation filed by the petitioner. The respondents have rejected the representation of the petitioner on 3.11.2008 on various grounds and accordingly the petitioner has filed the present writ petition to contest the same on the ground that this has been done in violation of the statutory provisions and without considering the fact that the road alignment now proposed would lead to a dead end and would have no connectivity and contiguity in the territory of Delhi, besides being contrary to the final development plan. Subsequently, the petitioner has filed second writ petition to make the prayer as already noticed. The State as well as added respondent No.4 have filed written statements. Both State and respondent No.4 have contested the issues raised in the petitions. In its reply, the State has taken a categorical stand to the effect that the contention of the petitioner is wrong as the alignment of the sector road has been drawn in the CIVIL WRIT PETITION NO.21608 OF 2008 :{ 6 }: sectoral plan strictly as per the notification FDP-GMUC-2021 i.e. final development plan. This position was reiterated while filing response to earlier writ petition filed by the petitioner i.e. Civil Writ Petition No.15940 of 2007, which was disposed on 19.9.2008. The right of the petitioner to file the present petition, thus, is contested. It is also pointed out that the petitioner had mislead this Court by suppressing the facts. As per the reply, the petitioner had become a legal owner of the land in dispute on 19.12.2006 whereas the notification of draft development plan of Gurgaon-Manesar was issued on 11.7.2006 and the final plan was issued on 5.2.2007 with the drawings No.DTP(G)- 1520/2006 dated 14.11.2006. The petitioner has purchased this land being fully aware of the fact that the land falls within the non- confirming use and also was coming within the alignment of 75 meters wide road as per the provision made in the draft development plan and also the final development plan. This fact is not disclosed by the petitioner in the petitions. The petitioner, thus, is attributed motive of ill intention. Plea is that the petitioner was not eligible to file objections under the provisions of sub-section (4) of Section 5 of Act 1963. In the reply, it is also emphasized that the petitioner had made frivolous allegations against the respondents for changing the alignment of the road on the sectoral plan as was notified in the final development plan of Gurgaon-Manesar Urban Complex 2021. The respondents, thus, would plead that these petitions deserve to be dismissed with heavy costs. The respondents in the reply would also contest the averments made in the petition that the present 75 meters wide road CIVIL WRIT PETITION NO.21608 OF 2008 :{ 7 }: would have no connectivity with Delhi. It is pointed out that this has been so stated without verifying the ground realities. As per the respondents, dialogue in this regard to extend the said road in Delhi portion has already been initiated by State of Haryana with the Delhi Counterpart. Reference is made to feasibility of this road on the basis of Annexure R-4, which is a satellite imagery of 0.6 m. resolution procured from National Remote Sensing Agency, Hyderabad at the time of finalisation of draft development plan. The said sector road has been super imposed on the satellite imagery to clarify the position vis-a-vis to existing revenue Rasta/road which is clearly visible from the said image. A perusal of the said satellite imagery makes it amply clear that 75 meters wide road does not lead to closing its connectivity in Delhi territory and, thus, the contention that this road would become a dead end is stated to be wrong assumption of the petitioner. Refuting the whole basis formulated by the petitioner, it is stated that the alignment, which the petitioner is praying for to be retained, was a mere proposal/exercise forwarded to the Director, Town and Country Planning (respondent No.2) by the office of District Town Planner, Gurgaon (respondent No.3) after the issuance of final development plan and which was never approved by the Director. The alignment, which is maintained, is in accordance with the final development plan, Gurgaon-Manesar Urban Development Plan 2021. It is also pointed out that the petitioner has made the existing revenue rasta as his base for argument as the said revenue rasta is passing through the boundaries of Haryana and since his land is CIVIL WRIT PETITION NO.21608 OF 2008 :{ 8 }: abutting one side of the revenue rasta, the petitioner is insisting to realign the present sector road towards the other side of existing revenue rasta so that his land is saved from the alignment of this Sector road as contained in the development plan. Accordingly, the prayer is made for rejecting the writ petition. In the reply, it is also reiterated with much emphasis that the procedure as given in Section 5 of Act 1963 for final development plan was duly followed. The final development plan was notified in February 2007, after following wider consultative process at District level under the aegis of District Level Committee chaired by the Deputy Commissioner and with all District level officers and local representatives as its members. The recommendations were then considered by the State Level committee chaired by Hon'ble Chief Minister, Haryana and, thus, the plan is in force since February 2007. Most of development activities have already ensued to implement the plan during the last two years. Respondent No.4 has also raised some preliminary objections. The allegation made in the petition that final development plan, Annexure P-4,was changed in any manner, is termed as factually incorrect and against the record. It is emphasized that the road in question is being constructed strictly in accordance with the final development plan. Reference is made to portion of the impugned order, where it is so observed that the road in question is being constructed as per the alignment shown in the final development plan. To find holes in the story projected in the petition, CIVIL WRIT PETITION NO.21608 OF 2008 :{ 9 }: respondent No.4 would point out to the averments made in the earlier writ petition filed by the petitioner where he had taken a totally contrary stand. Reference is made to the contents of Para 3 of Civil Writ Petition No.15940 of 2007, where the petitioner had averred that the road in question dividing Sectors 114 and 115, if constructed as per the final development plan (Annexure P-4) will pass through the land of the petitioner in question and, thus, his grievance in earlier writ petition was that 75 meters wide road be constructed by accepting the subsequent proposal of District Town Planner, Gurgaon and the final development plan be accordingly modified so that his land does not come underneath the road in question. The relevant portion of this averment contained in Para 3 (h) of this writ petition noted above is as under:- “Para 3(h). That in the alignment finalized by the respondents, as per the development plan, the aforesaid road has now been proposed to pass through Killa Nos.1,2,9, 10 and in Rect.No.28 belonging to the petitioner and in Killa Nos.6,15,16,17, 24 and 25 in Rectangle No.29. The Development Plan does not conform to the standards of good planning and as a result the plan would become inoperative.” (emphasis mine) Not only that the petitioner in the earlier writ petition had clearly pleaded that the respondents had prepared the tentative sectoral plan, ignoring the proposal made by District Town Planner, Gurgaon and that the proposed alignment as was recommended by the District Town Planner, Gurgaon, had not been taken into CIVIL WRIT PETITION NO.21608 OF 2008 :{ 10 }: consideration while finalising the road in the development plan. The averment in this regard, as contained in para 3 (f) and 3 (g) of the earlier petition are as under:- “(f) That the respondents have prepared the Tentative Sectoral Plan in the Gurgaon-Manesar Urban Complex- 2021 A.D. for Sector 114 vide drawing No.DTP (G) 1589/207 dated 23.4.2007 ignoring the proposal made by the District Town Planner Gurgaon who had prepared the plan as per the existing structure and taking account of the infrastructure existing at the site. The office of the District Town Planner has taken account of the existing position and has retained the existing situation in the proposed alignment of the aforesaid road. A copy of the letter written by the DTP Gurgaon, respondent No.3 is being attached as Annexure P-5. (g) That the proposed alignment as has been recommended by the District Town Planner, Gurgaon has not been taken into consideration while finalizing the alignment of the road in the Development Plan. The respondents want to carve out Sector 114 in the said revenue estate of village Bajghera. It is, however, that existing alignment was ignored in the development plan. In fact, the development plan only prescribes under usage and finer details are worked out by the sectoral plan.” (emphasis mine) The underlined portion clearly shows that the case set up CIVIL WRIT PETITION NO.21608 OF 2008 :{ 11 }: was that road was finalised in the development plan. Respondent No.4 would also highlight that the petitioner is a subsequent vendee and had purchased this land after finalisation of the final development plan. Reference is made to the registered sale deed dated 19.12.2006, by which date the final development had already been sanctioned. In this context only, it is pointed out that the draft development plan of Gurgaon Manesar Urban Complex 2021 AD was approved vide drawing No.1475/05 dated 27.6.2006 (Annexure P-3) under Section 5(4) of the 1963 Act. Thereafter, 1795 objections were filed by various land owners and other affected persons under Section 5(5) of the 1963 Act and after considering the same, the final development was approved and published on 14.11.2006 (Annexure P-4). It is, thus, stated that sole object of filing this petition is to save the land, which the petitioner had purchased after the finalisation of the development plan. He was not even the owner when the draft development plan was prepared and when the final development plan was published. It is pointed out that the petitioner has not made mention to the date of land purchased by him. It is seen that the whole basis formed by the petitioner in this petition is a letter initiating by District Town Planner, Gurgaon dated 25.5.2007 (Annexure P-6). District Town Planner had submitted project to realign the sector road dividing Sectors 114 and 115. This was only a proposal, which was never approved. Respondent No.4 in his reply has, thus, highlighted the fact that site plan dated 23.4.2007, Annexure P-5, showing the existing sector CIVIL WRIT PETITION NO.21608 OF 2008 :{ 12 }: road, as per the final development plan, is only a proposed alignment. Annexure P-5 is stated to be an unsigned plan and no such site plan was ever signed or approved as sectoral plan. On the other hand, a copy of the signed sectoral plan dated 14.9.1997 is annexed with the reply as Annexure R-5. In the said sectoral plan, no such proposed alignment of the road was depicted. It is accordingly stated that sectoral plan has been prepared in accordance with the final development plan approved and sanctioned on 14.11.2006. Accordingly, prayer is made for dismissing the writ petition. In view of the stand of the respective parties, the crux of the issue was to see if there was any change in the final development plan or not. Learned counsel for the petitioner though raised number of pleas to the effect that the sectoral plan can not be made in violation of the master plan and change done is pleaded to be a colourable exercise of powers. Some allegations of an attempt to over-reach the Court etc. and junior-most person deciding the representation are also made. As already noted, all these considerations would require examination, if it is first found that the final development plan was changed in any manner. If it is found that there has been no change in the final development plan, then there would not be any need to go into all the submissions as made by learned counsel for the petitioner. Copy of the draft development plan is annexed with the petition as Annexure P-3. The draft development plan was prepared CIVIL WRIT PETITION NO.21608 OF 2008 :{ 13 }: on 22.6.2006 and was published on 11.7.2006. Final development plan was approved on 14.11.2006 and copy thereof is at Annexure P- 4. The same was published on 5.2.2007. The road alignment as shown in the final development plan has clearly been indicated. The reliance by the petitioner on drawing dated 23.4.2007 (Annexure P-5) to press that the proposed alignment was changed, which would take away the land of the petitioner, apparently is factually incorrect. In Annexure P-5, the petitioner has shown the proposed alignment in red colour, which clearly is containing a curve. Existing road has been shown in green colour and the incorrect alignment is shown in the yellow colour. Annexure P-5 is an unsigned document, which was actually the proposal, whereas the signed document has been placed on record by the respondents alongwith the reply. As was pointed out, Annexure P-5 is only a document based on the proposal made by the District Town Planner whereas the signed copy of the proposed road issued on 14.9.2007 has been placed on record as Annexure R-5. The road as depicted in Annexure R-5 would clearly show that 75 meters wide road is as per the approved development plan. It would be immaterial if it is taking into account the existing revenue rasta, which in any event is made part of 75 meters wide road. A perusal of Annexure R-5 would clearly show that the earlier revenue rasta was not straight and was containing bends. The 75 meters wide road, as proposed, is straight and has connectivity with the Delhi portion as well. The fact that the road has been as per the approved development plan has clearly emerged even from the pleadings on record. CIVIL WRIT PETITION NO.21608 OF 2008 :{ 14 }: Annexure P-6 is the copy of the communication initiated by District Town Planner. It is clearly mentioned in this communication that sector dividing road between Sectors 114-115 has been proposed to be slightly realigned alongwith the existing road because this 75 meters road would lead through the Territory of Delhi State and at present there are existing farm houses and it would be difficult to connect this road with Delhi Territory. It is clearly mentioned that hence, slight amendment in the alignment is proposed. It is, thus, clear that the communication Annexure P-6 was only a proposal and not a final development plan. Final development plan had already been approved and published on 5.2.2007. The District Town Planner had then submitted the proposed realignment on 25.5.2007. This proposal was never approved. Even if this proposal was to be approved, this could only have been done after following the due process necessary for changing the final development plan, which had already been approved. The counsel for the petitioner could not contest this position, when pleadings were pointed out. Even the reasons disclosed in the impugned order would clearly show that the petitioner was showing willingness to offer the land under his possession for widening the road. His plea to maintain the existing road, which was revenue rasta for upgrading the same into 75 meters road, dividing Sectors 114 and 115 was rejected on various grounds. It is disclosed in the impugned order that alignment of the existing road is not uniform and hence, it was not feasible to widen it equally on either side of the road. It is also observed that CIVIL WRIT PETITION NO.21608 OF 2008 :{ 15 }: existing road has been retained within the alignment of 75 meters wide sector dividing road of Sectors 114 and 115 except in a small portion where it deviates from straight alignment of 75 meters wide sector road. It is clearly stated in the impugned order that alignment of 75 meters wide sector road is to be maintained as per the alignment shown in the final development plan, which had been notified on 5.2.2007. In this background, it was noticed that number of licence applications have already been received with a requisite security licence fee, and, thus, third party rights have also been created. It was also noticed that the petitioner has not moved any application for land under his possession, which he had purchased after the approval of the final development plan. It is also clearly noticed in the impugned order that proposal for realignment of the road as forwarded by District Town Planner through his communication dated 25.5.2007 (Annexure P-6) was not considered appropriate by the competent authority i.e. District Town and Country Planning. This alignment of the road was as per the sectoral plan and had been approved by the competent authority on 20.3.2008 and hence, the representation of the petitioner was rejected. It is, thus, clear that the petitioner has mainly relied upon the proposal initiated by