CWP No.13007 of 2010.doc - 1 – HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** CWP No.13007 of 2010 Date of Decision: 26.07.2010 **** Sanjay Aggarwal . . . Petitioner VS. State of Punjab and others . . . Respondents **** CORAM : HON’BLE MR.JUSTICE SURYA KANT **** 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? **** Present: Mr. Vivek Singla, Advocate for the petitioner ***** SURYA KANT J. (ORAL) (1). The petitioner seeks quashing of the order dated 04.06.2010 (Annexure P7) as well as Clause (4) of the letter dated 23.04.2007 (Annexure P2), whereby his building plan was earlier approved. (2). The petitioner claims to be joint owner of a plot bearing No.88 in Sunny Enclave, NAC Zirakpur, which is measuring 85.77 sq.yards and was a part of agricultural land when purchased vide registered Sale Deed dated 18.12.2006, a copy whereof has been handed over by learned counsel for the petitioner during the course of hearing. (3). The petitioner proposed to construct a Shop-Cum- Flat (SCF) on the said piece of land and he along with his co-owners submitted the building plans CWP No.13007 of 2010.doc - 2 – accordingly. The said building plan was duly approved by the Municipal Committee, Zirakpur vide letter dated 23.04.2007 (Annexure P2), inter alia, subject to the following conditions:- xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx 1. You will construct the building as per the site plan and you will not violate any of building bye laws of the Municipal Committee. xxx xxx xxx xxx xxx 4. The Site Plan of the building and copy of approval is being sent along with this. The period of approval is one year. If the construction is not completed within one year, then the approval would be deemed to be cancelled without any further notice. (Emphasis applied) xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx (4). The petitioner admittedly did not raise any construction within the validity period of one year. (5). Meanwhile, the Government of Punjab vide its Notification dated 13.11.2009 [published in the Official Gazette on 15.01.2010 (Annexure P6)], notified the Master Plan of the Zirakpur Municipal area in exercise of its statutory powers under Section 70 of the Punjab Regional and Town Planning and Development, 1995 (in short, ‘the 1995 CWP No.13007 of 2010.doc - 3 – Act’) as amended vide Act of 2006, whereby, the entire area where the subject plot is located has been admittedly notified as “Residential Zone”. (6). As the petitioner wanted to construct commercial buildings only, his request for the renewal of the earlier site plan and/or to permit him to raise commercial construction has been declined by the Municipal Council vide the impugned order dated 4 th June, 2010 (Annexure P7). (7). Aggrieved, the petitioner has approached this Court. (8). It is urged that in view of Section 189 of the Punjab Municipal Act, 1911, (in short, ‘1911 Act’), once the site plan earlier submitted by the petitioner was sanctioned there is no authority vested with the Municipal Committee to restrict the validity of the sanctioned site plan for a period of one year only. Reliance is placed upon a decision of this Court in Rajinder Garg Vs. Municipal Committee, Patiala and another 1989(1) PLR 415 as well as a Division Bench decision of the Delhi High Court in Rajeshwar Parshad and others vs. Municipal Corporation of Delhi and others AIR 1991 Delhi 71. (9). I have heard learned counsel for the petitioner at some length and perused the records. CWP No.13007 of 2010.doc - 4 – (10). In my considered view no case to interfere with the impugned order is made out by this Court in exercise of its writ jurisdiction. (11). The 1995 Act has been promulgated to regulate the development and usage of the land in a planned manner by preparation of Regional Plans and Master Plans and implementation thereof by the Urban Development Authorities. Part-IV of the 1995 Act lays down complete procedure for the preparation and notification of the Master Plan of an area after inviting public objections and consideration thereof by the State Government. After it is prepared and approved, the State Government notifies the Master Plan with the consent of the Municipal Committee/Municipal Council falling within that area and thereafter no construction in violation of the provisions of the Master Plan can be raised. The presence of penal clauses emphasizes the mandatory nature of these provisions. (12). Section 79 and 80 of the 1995 Act read as follows:- xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx 79. Use and development of land to be in conformity with Master Plan. – After the coming into operation of any Master Plan in any area, no person shall use or permit to be used any CWP No.13007 of 2010.doc - 5 – land or carry out any development in that area otherwise than in conformity with such Master Plan: Provided that the Competent Authority may allow the continuance of any use of any land, for a period not exceeding ten years, upon such terms and conditions as may be provided by regulations made in this behalf, for the purpose and to the extent, for and to which it was being used on the date on which such a Master Plan came into operation. 80. Prohibition of development without permission and without payment of development charge and betterment charge. – After coming into operation of any Master Plan in any area and subject to the other provisions of this Act, no development in respect of, or change of use of, any land shall be undertaken or carried out, in that area - (a) without obtaining the permission in writing as provided for hereinafter; and (b) without obtaining a certificate from the Competent Authority certifying that the development charge or betterment charge as leviable under this Act has been paid or that no such charges are leviable: [Provided that except in the case of development, affecting heritage site or its vicinity, no such permission shall be necessary-] (i) for operational constructions and constructions in the area comprised in the abadi- CWP No.13007 of 2010.doc - 6 – deh of any village falling inside its Lal Lakir or phirni; (ii) for carrying out such works for the maintenance, improvement or other alteration of any building which affect only its interior or which do not materially affect the external appearance of the building; (iii) subject to the provisions of sub-section (2) of Section 73, for the carrying out by the Central Government or the State Government or any local authority - (a) any work required for the maintenance or improvement of a highway, road of public street, being work carried out on laid within the boundaries of such highway, road or public street; (b) any work for the purpose of inspecting, repairing or renewing any drains, sewers, mains, pipes, cables or other apparatus including the breaking open of any street or other land for that purpose; (iv) for the excavations (including wells and tubewells) made in the ordinary course of agricultural operation or for such constructions which are made for agricultural purpose or purposes subservient to agriculture: Provided that such excavation or constructions are situated in the areas in which agriculture is permitted land use as per the Master Plan; CWP No.13007 of 2010.doc - 7 – (v) for the construction of unmetalled roads intended to give access to land solely meant for agricultural purposes.” xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx (13). The petitioner, on the other hand, refers to Section 189 of the 1911 Act, which reads as follows: - xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx 189. Prohibition of building without sanction. – (1) No person shall erect or re-erect or commence to erect or re-erect building without the sanction of the [committee]. [****] (2) Notice of building- Every person who intends to erect or re-erect any building shall give notice in writing to the [committee] of such intention. [(3) Building bye-laws – A Committee shall by bye-law- (a) prescribe the manner in which notice of the intention to erect or re-erect a building shall be given to the committee; (b) require that with every such notice shall be furnished a site plan of the land on which it is intended to erect or re-erect such building, and a plan and specification of the building, of such character and with such details as the bye law may require; (c) where the building appears likely to be used as a factory, require the provision of CWP No.13007 of 2010.doc - 8 – adequate housing accommodation in connection therewith.] (4) Where bye-laws have been framed under this section no notice under sub-section (2) shall be considered to be valid until the information, if any required by such bye-laws has been furnished to the satisfaction of the [committee]. xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx (14). On a plain reading of the afore-stated provision, it is apparent that no building can be erected or re- erected without the sanction of the building plan or an advance notice in writing to the Municipal Committee. The provision further enables the Municipal Committee to frame the building Byelaws prescribing the manner in which notice of the intention to erect or re-erect a building is required to be given along with site plan of the land where building is to be erected or re-erected or as to how the ‘housing accommodation’ in a factory premises is to be provided. In my considered view, the above- stated provision neither impinges upon the provisions of the 1995 Act nor it absolves the petitioner or the land-owners from mandatory compliance of those provisions. (15). It is in furtherance of the provisions of the 1995 Act (which came into force much before the subject plot CWP No.13007 of 2010.doc - 9 – was purchased on 18 th December, 2006 by the petitioner along with his co-owners) that the Master Plan in respect of Zirakpur Municipal Area has been notified by the State Government. (16). Since the provisions of the 1995 Act, reproduced above, expressly prohibit any construction in violation of the Master Plan, no fault can be found with the impugned order. (17). The petitioner cannot draw any help from the cited decisions which are based upon the interpretation of Section 189 of the Punjab Municipal Act, 1911, as no special legislation like the 1995 Act, with overriding effect, was in existence or considered by the Hon’ble Courts while deciding these cases. (18). It may not be out of context to mention that the Punjab Municipal Act, 1911 has been enacted with the object of “making better provision for the administration of Municipalities in Punjab…..” Whereas the legislative object behind the framing of Punjab Regional and Town Planning and Development, 1995 is to make provisions “for better planning and regulating the development and use of land in planning areas……” There is, thus, no overlapping in the fields occupied by the two legislative enactments. Following the principle of CWP No.13007 of 2010.doc - 10 – harmonious interpretation, there can be no room to doubt that the building/site plans to be sanctioned by the Municipality in exercise of its powers under Section 189 of the 1911 Act must conform to the ‘Master Plan’ of the area, if so notified under the 1995 Act. (19). For the reasons afore-stated, I find no merit in the writ petition which is accordingly dismissed. (20). No order as to costs. (SURYA KANT) JUDGE 26.07.2010 vishal shonkar