CWP No.13431 of 2010 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No.13431 of 2010 (O&M) Date of decision:15.12.2011 M/s Crown Buildtech Pvt. Ltd. ..... Petitioner Versus State of Haryana and others ..... Respondents CORAM: HON'BLE MR. JUSTICE RAJIVE BHALLA HON'BLE MR. JUSTICE TEJINDER SINGH DHINDSA Present: Mr.Ashok Aggarwal, Senior Advocate with Mr.Lokesh Sinhal, Advocate for the petitioner. Mr.D.D.Gupta, Addl.A.G., Haryana for the State. Ms.Balwinder Kaur, Advocate for respondent No.3. ***** RAJIVE BHALLA, J (Oral). The petitioner prays for issuance of a writ in the nature of certiorari for quashing letter dated 12.09.2007 (Annexure P-10), issued by the Director, Town & Country Planning, Haryana, and to direct the respondents to give benefit of FAR in accordance with order dated 01.12.2006 (Annexure P-6), passed by respondent No.1. A brief reference to the facts of the case would be necessary. The petitioner was issued a licence for development of a commercial complex at 12/7, D.M.Road, Sector-35, Faridabad under the Haryana Development and Regulation of Urban Areas Act, 1975 (for short the 'Act'). The petitioner made an application to the Director Town & Country Planning for allotment of additional FAR of 10% of the total plot area or the area left for the green belt, whichever is less, in CWP No.13431 of 2010 (O&M) -2- accordance with the prevailing practice of respondent No.2. The Director, Town & Country Planning, respondent No2, rejected this application. The petitioner, thereafter, approached the Financial Commissioner and Principal Secretary to Government Haryana, Town & Country Planning, by filing an appeal which was allowed vide order dated 01.12.2006 (Annexure P-6), in the following terms: - “It appears that the Municipal Corporation, Faridabad was not aware of the policy of the government in the Department of Town & Country Planning for grant of benefit of green belt towards FAR. It is only fair to grant similar treatment to all the similarly placed persons keeping in view the proclaimed policy of the Department of Town & Country Planning by giving benefit of FAR to the extent of 10% only of the total site including area falling in green belt and service road, the area under the green belt and service road will be transferred free of cost to the Government. Therefore, a case is made out to grant the benefit of green belt towards FAR to the appellant keeping in view the policy of the Department of Town & Country Planning. Hence the appeal is accepted. Director Town & Country Planning will take necessary action accordingly.” Aggrieved by this order, respondent No.2-Department of Town & Country Planning, Haryana, prepared an office note, which reads as follows: - “7) The above status was submitted by office from NP/85 to 87 and DTCP on NP/88 also submitted a case to Government that since the FAR benefit has already been given in excess of the policy parameters as stated above and hence further relaxation was not recommended. The Section-20 of Urban Areas Act, 1975 provides as under:- 20. Revision- The Government may call for the record of any case pending before, or disposed of by any subordinate authority, for the purpose CWP No.13431 of 2010 (O&M) -3- of satisfying itself as to the legality or propriety of any proceedings or of any order made therein and may pass such order in relation thereto as it may think fit.” Therefore, in view of above powers of Government, the approval of Hon'ble CM may be obtained for modifying the orders of the then FCTCP (CP/59-61) to restrict the FAR benefit as has already been given i.e. 10% of 16000 sq. meters and not 10% of 23749.79 sq. mts. provided in orders dated 1-12-2006 of the then FCTCP. Submitted please.” Before this office note could be approved, the Director, Town & Country Planning, issued letter dated 12.09.2007, ignoring the orders passed by the Financial Commissioner and reiterating its earlier order. The office note was placed before the Chief Minister, with a recommendation that the same may be accepted. The office note prepared by respondent No.2 was approved by the Chief Minister, vide order dated 01.09.2008, thereby setting aside order dated 01.12.2006, passed by the Financial Commissioner. Counsel for the petitioner submits that he confines his prayer, at this stage, to a plea that the Chief Minister has, while exercising powers under Section 20 of the Act, set aside order dated 01.12.2006, passed by the Financial Commissioner, without issuing a notice or affording an opportunity of being heard to the petitioner. It is further submitted that this apart, as the Financial Commissioner has already exercised power of an appellate authority on behalf of the State Government, the Chief Minister has no jurisdiction to exercise power under Section 20 of the Act. CWP No.13431 of 2010 (O&M) -4- Counsel for the State of Haryana is not in a position to point out from the record that any show cause notice was issued or served upon the petitioner, before the Chief Minister approved the recommendation forwarded by the Director, Town & Country Planning, to set aside the order passed by the Financial Commissioner. It is, however, urged that as the licence granted to the petitioner, by the Municipal Committee, was contrary to policies framed by the State, the Director, Town & Country Planning was well within its right to refer the matter to the Chief Minister who has in the exercise of powers of the Government under Section 20 of the Act, passed an order that is legal and valid. We have heard counsel for the parties and perused the order passed by the Chief Minister. The power under Section 20 of the Act, if such power was available, can only be exercised after serving a show cause notice upon the party likely to be adversely affected by any order that may be passed thereunder. Section 20 of the Act, reads as follows:- “20. Revision- The Government may call for the record of any case pending before, or disposed of by any subordinate authority, for the purpose of satisfying itself as to the legality or propriety of any proceedings or of any order made therein and may pass such order in relation thereto as it may think fit.” Section 20 of the Act, confers a plenary power on the Government to call for the record of any case pending before or disposed of by any subordinate authority for satisfying itself as to the CWP No.13431 of 2010 (O&M) -5- legality or propriety of any proceedings or orders made therein. The exercise of power under Section 20 of the Act inhers an adherence to the principles of natural justice particularly where its exercise is likely to adversely effect the rights of a party by setting aside an order that has been passed in its favour. Admittedly, the Financial Commissioner passed order dated 01.12.2006, allowing the appeal filed by the petitioner. The order passed in appeal has been set aside, by the Chief Minister, Haryana, in the exercise of powers under Section 20 of the Act but without serving any notice upon the petitioner calling upon it to show cause why the order passed by the Financial Commissioner may not be set aside. Adherence to principles of natural justice is germane to exercise of quasi judicial powers. Section 20 of the Act confers a quasi judicial power of superintendence and, therefore, inhers an obligation upon the Government to abide by principles of natural justice. We are satisfied that order dated 01.09.2008, passed by the Chief Minister, setting aside order dated 01.12.2006 of the Financial Commissioner, without issuing any show cause notice or grant of an opportunity of hearing to the petitioner, is violative of principles of natural justice and must therefore, be set aside. Consequently, we allow the writ petition, set aside order dated 01.09.2008, passed by the Chief Minister, Haryana, and the order dated 12.09.2007, passed by the Director, Town & Country Planning, ignoring the order of the Financial Commissioner, with liberty to the Department of Town & Country Planning, to seek its remedy in CWP No.13431 of 2010 (O&M) -6- accordance with law after serving a show cause notice upon the petitioner and without prejudice to the rights of parties with respect to factual and legal issues that may arise for adjudication. No order as to costs. [RAJIVE BHALLA] JUDGE 15.12.2011 [TEJINDER SINGH DHINDSA] shamsher JUDGE