CR No. 8353 of 2010 (O&M) IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CR No. 8353 of 2010 (O&M) Date of decision:- 24.12.2010 Smt. Poonam ......Petitioner vs. The District Town Planner, Karnal ......Respondent CORAM:- HON'BLE MR. JUSTICE HEMANT GUPTA Present: - Mr. V. Ramsarup, Advocate, for the petitioner. Mr. Aman Chaudhary, Addl. AG, Haryana. HEMANT GUPTA, J (ORAL) Plaintiff-petitioner has filed a suit for permanent injunction for restraining the defendant from interfering into the peaceful possession of the plaintiff. It is the case of the petitioner that she has purchased part of the land measuring 21 bighas and 15 biswas vide a registered sale deed dated 11.6.2010 and that the plaintiff is in possession of the suit land since the date of purchase and has constructed the temple on the said land and that they are worshiping in the said temple. The plaintiff has also built a path for egress and ingress to the land in dispute for her own use. It is further pleaded that previously the owner namely, M/s Mission Flora India Limited, Karnal made the land in dispute uneven, but the plaintiff levelled land and has raised construction in some portion of the land and that the defendant has no right title or interest in the suit but the defendant is threatening to demolish the construction raised by the petitioner. Such suit was accompanied with an application to grant ad interim injunction as well. 1 CR No. 8353 of 2010 (O&M) On behalf of the defendant, it was asserted that the temple was raised a day before filing of the suit and that the passage made in the area is for development of unauthorized colony and not for the egress and ingress of the land for the own use of the plaintiff. It was pointed out that the process of laying roads is in violation of Section 7(ii) of the Haryana Development and Regulation of Urban Areas Act, 1975 (for short ' the 1975 Act') and the construction of the temple as well as the roads is also in violation of the Section 6 and 7 (i) of Punjab Schedule Roads and Unregulated Development Act, 1963 (for short 'the 1963 Act'). Though, learned trial Court granted ad interim injunction in favour of the petitioner but the learned first Appellate Court accepted the appeal and set aside the order of the learned trial Court on 11.10.2010. It was found that as per notification dated 10.9.1971, the Town and Country Planning Department, Haryana has notified the controlled area for the District Karnal. The area as mentioned in the Schedule of the notification shows that the land in dispute situated around Municipal Town of Karnal is part of controlled area, therefore, the petitioner is not entitled to ad interim injunction as the construction activities undertaken by the plaintiff are in contravention of the conditions laid down in such notification. Learned counsel for the petitioner has relied upon a Full Bench judgment of this Court in CWP No. 8011 of 1999 decided on 12.12.2007, titled as “M/s Shiva Ice Factory vs. State of Haryana and others”, wherein it has been held that the notification under the provisions of the 1963 Act is not applicable to an area which is included in the municipal limits. Learned counsel for the petitioner argued that the M/s Mission Flora India Limited has been granted permission for the change of land for use, therefore, the 2 CR No. 8353 of 2010 (O&M) provisions of the 1963 Act are not applicable in respect of the land purchased by the petitioner. Mr. Chaudhary has pointed out that the Full Bench has not noticed the insertion of Section 203 C of the Haryana Municipal Act, 1973 (for short the “1973 Act”) inserted vide the Haryana Act No.1 of 2001. By virtue of the said Section, it has been explicitly made clear that controlled area as declared under the 1963 Act would be deemed to be controlled area under the Haryana Municipal Act, 1973 as well. It is, thus, contended that since the statutory provisions as contained in Section 203 C inserted by the Haryana Act No. 1 of 2001 has not been noticed in the judgment relied upon by the Petitioner, therefore, the said judgment does not lay down any binding precedent. It is also pointed out that the Full Bench judgment of this Court has been stayed by the Hon'ble Supreme Court in Special Leave Petition No.21651 of 2009 vide the order dated 25.1.2009 as well. Having heard learned counsel for the parties, I am unable to agree with the arguments raised by learned counsel for the petitioner. It is not the case of the petitioner that the M/s Mission Flora India Limited, the vendor of the petitioner was granted the change of the land use. A perusal of the written statement produced by learned counsel for the petitioner shows that it is averred that the vendor has sought change of land use on 28.8.1995 but it is not mentioned in the written statement that the permission to change of land use was granted to the vendor of the plaintiff. In the written statement, the Final Development Plan for the year 2021-AD, Karnal has been appended and the site purchased by the plaintiff is shown in red. The said site is not permissible for development and construction of colony. It is also pleaded that the plaintiff is bent upon 3 CR No. 8353 of 2010 (O&M) to deceive even God by making mockery of temple by placing an idol without following the ritual of Sthapna and Pran Pratishtha of the idol. Thus, the plaintiff has even attacked religious feelings of the followers of sect. In view of the said facts, the arguments raised by learned counsel for the petitioner that the vendor was granted permission to land use is not tenable. Though, the Full Bench judgment in M/s Shiva Ice Factory vs. State of Haryana and others supports the arguments raised by learned counsel for the petitioner but the fact remains that the Full Bench was not apprised of the amendments in the statute carried out by the Haryana Act No.1 of 2001, whereby Section 203 C of the Haryana Municipal Act, 1973 has been inserted. Such provisions read as under: - “203 C. Declaration of controlled area :- (1) Notwithstanding anything to the contrary contained in the Punjab Scheduled Roads and Controlled Areas Restriction of Unregulated Development Act, 1963 (Act 41 of 1963), the Director may, with prior approval of the State Government, by notification in the Official Gazette, declare any area within the limits of a municipality to be controlled area. In case any area has already been declared as controlled area by the Director, Town and country Planning, then the same shall be deemed to be the controlled area for the purpose of this Act.” In view of the aforesaid statutory provision incorporated in the Haryana Municipal Act, 1973, reliance placed upon a Full Bench judgment, as mentioned above, is not tenable, as the statutory provisions were not brought to the notice of the Bench. Faced with the situation, learned counsel for the petitioner has raised an argument that the land in dispute is now part of the Municipal 4 CR No. 8353 of 2010 (O&M) Corporation, which has been established by a notification dated 17.3.2010. Since, the land in dispute is the part of the Municipal Corporation, it is only the Commissioner, as defined under Section 2(4) of the Haryana Municipal Corporation Act, 1994 (for short “1994 Act”), who is competent to issue notice for demolition of the construction. The 1994 Act has been amended vide Act No.20 of 2004 when Section 346 has been substituted. The relevant extract of Section 346 reads as under : - “346. Declaration of controlled area – (1) Notwithstanding any law for the time being in force, the Commissioner may, with the previous approval of the Government, by notification, declare the whole or any part of the area within the Corporation to be a controlled area provided that the same has not been declared as controlled area under the Punjab Scheduled Roads and Controlled Areas Restriction of Unregulated Development Act, 1963 (Act 41 of 1963)”. The argument that notice is required to be issued by the Commissioner of Municipal Corporation does not require any serious consideration. The Section 346 of 1994 Act starts with non obstante Clause. The section gives over riding effect to the plans prepared under 1963 Act. By virtue of the said Section, the Commissioner of the Municipal Corporation has jurisdiction to declare the whole or any part of the area within the Corporation to be controlled area provided the same has not been declared as controlled area under the 1963 Act. In terms of the Section 346 of the 1994 Act, the declaration of the controlled area under 1963 Act is valid, if controlled area is not declared under the 1994 Act. Since, the controlled area has been declared under the 1963 Act, therefore, the Town 5 CR No. 8353 of 2010 (O&M) and Country Planner under the aforesaid Act is competent to issue notice to the petitioner for demolition. The provisions of the 1963 Act were examined by learned Single Judge of this Court in 1984 P.L.J, 52 Mahant Ram vs. State of Punjab. The said case arose in relation to the Punjab Municipal Act, 1911, the predecessor Act of the Haryana Municipal Act, 1973. It was held that the 1963 Act was passed to prevent haphazard and sub-standard development along Scheduled roads and in the controlled areas, in the State of Punjab. The object of this Act is not so much to regulate and control the individual buildings in an area where there is no restriction for raising constructions of such buildings. The purpose of the Act is to prevent the growth of slums areas in and around the big towns and cities and colonies in and around the vicinity of towns in Punjab. On the other hand, the Punjab Municipal Act 1911 was not fashioned with this end in view. The said Act was enacted to make better provisions and for the administration of municipalities in Punjab. The provisions regarding the streets and buildings have been enacted but such provisions deals with the maintenance and protection of streets, arrangements of lighting therein. The emphasis under the Act is to see that the buildings constructed conform to the norms prescribed keeping in view the hygienic and sanitary conditions of the areas. The Municipal Committee has the power to prohibit the construction of the buildings in a particular area. The Municipal Act may be the Punjab or the Haryana, are the general statues dealing with the administration of municipalities and maintenance and protection of streets or buildings which prohibits the construction of the buildings in a particular area. However, the 1963 Act, is 6 CR No. 8353 of 2010 (O&M) a special statute regulating and controlling the development of haphazard growth and slums in and around the Scheduled roads and around the urban areas, which has been declared as controlled area. Even in the municipal limits, there exist schedule roads. To say, that Municipal Act will override the Special Statute is not correct. Both the Statutes enacted by State Legislature are required to be construed harmoniously even if they touch the same subject at the same time, though, they do not. The special Act will prevail over the General Statute. The said aspect has been clarified with the insertion of Section 203 C of the Haryana Municipal Act, 1973 and Section 346 of the Haryana Municipal Corporation Act, 1994. Thus, the challenge to the demolition of the construction in violation of the controlled area plan is wholly misconceived. In view of the said fact, I do not find any case is made out for interference in the present contempt petition. Dismissed. (HEMANT GUPTA) JUDGE 24.12.2010 Preeti/Vimal 7