C.W.P. No. 2896 of 1987 -1- IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH C.W.P. No. 2896 of 1987 Date of decision : October 4, 2008 Brij Lal & others. ................Petitioners Versus State of Punjab & Anr. ........Respondents CORAM : JUSTICE VINOD K. SHARMA. Present : Mr. J.R. Mittal, Sr. Advocate with Mr. Kashmir Singh, Advocate for the petitioners. Mr. R.L. Gupta, Addl. A.G. Punjab. **** 1. Whether Reports of Local Newspapers may be allowed to see the judgment ? 2. To be referred to the Reports or not ? 3. Whether the judgment should be reported in Digest. **** JUSTICE VINOD K. SHARMA The petitioners have challenged the Scheme known as Town Planning Scheme of unbuilt Area No. 9 Part-I, Bathinda by invoking the provisions of the Articles 226/227 of the Constitution of Indian. The petitioners are owners of land com promised in Khasra No. 1990 measuring 6 bighas ( 6000 Square yards) situated at Bathinda as C.W.P. No. 2896 of 1987 -2- shown in the jamabandi for the year 1982-83. The petitioners have claimed that the land of the petitioners is surrounded by residential and commercial buildings and is situated in populated area and its market value is more than Rs. 300/- per square yard. Respondent No.2 made a Town Planning Scheme of unbuilt area known as Scheme No. 9, Part-I Bhatinda, which stands duly sanctioned by the Government. The petitioners claimed that the scheme has been improperly prepared treating the area as unbuilt area as most of the area is under construction as residential and commercial buildings. The petitioners challenged the scheme on the ground that it has not been properly drawn up and sanctioned by the State Government in accordance with law. The petitioners have also denied of equality under law by alleging that the respondents have arbitrarily decided to transfer the area of the petitioners more than warranted by law without touching the land of other similarly situated persons. The petitioners also claimed that the land of the petitioners is being transferred to respondent No.2 without payment of compensation. The writ petition is opposed by respondent No.2 by alleging in the written statement that the area was declared as unbuilt on 16.4.1975 and thereafter provisions of Section 192 of the Punjab Municipal Act, 1911 were complied with. It is the case of the respondent that Administrator of the committee passed order under Section 3(18)(b) to declare the area as unbuilt area and the said orders stand affirmed by the State Government on 21.3.1977. C.W.P. No. 2896 of 1987 -3- The stand of the respondent is that ownership statement was prepared and necessary publications were made in the daily Tribune on 15.11.1977 and 21.11.1977. The objections were invited and the said objections were considered and disposed off. Thereafter the scheme was prepared and final approval was granted on 18.4.1979. It is the case of the respondent that the petitioner never took any steps to get the sale mutated in the revenue record nor raised any objections though opportunity was given. The basic stand of the petitioners is that they would be treated as co-sharer along with other owners and as per the ownership statement the area which is taken for the purposes of Scheme without compensation comes to less than 25%. It is the case of the respondent that holding of entire body of co-sharers was to be taken into consideration and, therefore, it could not be said that there was any violation of Section 192 of the Act. It is also claimed that there are disputed question of facts in the case. The petitioners filed a rejoinder, wherein it was claimed that after the approval of the Scheme in the year 1979, no steps have been taken so far in transferring the area to the Municipal Committee. It is also the case that when the Municipal Committee tried to take forcible possession then the petitioners and other respectable persons made representation to the Municipal Committee, which has not been decided so far. The plea of the respondent that the sale was not got mutated is also denied and it was claimed that mutation was entered in favour of the petitioners in the year 1968 and their names appear in the record of right at the time of C.W.P. No. 2896 of 1987 -4- sanctioning of the scheme. The petitioners claim that Khasra number which petitioners purchased was given new number i.e. 1990-Min. The other pleas raised in the written statement were also controverted. Mr. J.R. Mittal, learned senior counsel appearing on behalf of the petitioners made reference to Section 3(18)(b) to contend that the unbuilt area is an area within the Municipal Limit which is declared to be as such as a special meeting of the Committee by resolution confirmed by the State Government or which is notified as such by the State Government. The contention of the learned senior counsel for the petitioners is that Section 3(18)(a) of the Act defines built area which is defined to be the portion of a Municipality of which greater part has been developed as a business or residential area. The contention of the learned senior counsel for the petitioners, therefore, is that the area which falls in the built area cannot be declared to be an unbuilt area by the State Government if the harmonious construction is given to Section 3(18) of the Act read with Section 192 of the Act. The contention of the learned senior counsel for the petitioners is that in the present case the scheme itself is bad in law as in terms of Section 192 of the Punjab Municipal Act the power is given to draw up a building scheme for built up area whereas a Town Planning Scheme can be built up only for unbuilt area. It is also contended by the learned senior counsel for the petitioners that under Section 192 of the Punjab Municipal Act, 1911 not more than 35% of the area can be included in the scheme and more than C.W.P. No. 2896 of 1987 -5- 25% of the area cannot be taken away without payment of compensation. There is force in this contention of the learned senior counsel for the petitioners. The fact that more than 35% of the area of the petitioners has been included is not disputed by the respondent in the written statement. The defence taken is that for purposes of calculation of 25% of the area the total holding of co-sharer is to be taken into consideration. The petitioners are owners of Khasra No. 1990-Min measuring 6 bighas ( 6000 Square yards) and all the co-sharers are the petitioners in this writ petition. Thus, it stands admitted that area in violation of Section 192 of the Act has been included in the Scheme without payment of compensation to the petitioners. It is also the contention of the learned senior counsel for the petitioners that the scheme has not been sanctioned by the State Government as required under Section 190(2)(iii)(4) as no ownership statement has been prepared as required under Section 192 of the Act. Though the respondent No.2 has taken a positive stand that the ownership statement was prepared but nothing has been placed on record in support of this contention. In the written statement it stands admitted that the names of the petitioners does not figure in the ownership statement. The defence of the respondents that the sale in their favour was not mutated stands belied from Annexure P-1 i.e. the jamabandi for the year 1982-83 showing that the land measuring 6 bighas falling in Khasra No. 1990-Min is in the ownership of the petitioners. The action of the respondent in including more than 35% of the land of the petitioners in the scheme is also in violation of Section 192(c) of the Punjab Municipal Act. It is also not in dispute that the C.W.P. No. 2896 of 1987 -6- petitioners have not been paid any compensation by the Municipal Committee. It may be noticed here that though under Section 192(c) of the Punjab Municipal Act 25% of the area can be taken away without payment of compensation. The said provision has been quashed by the Hon'ble Supreme Court in the case of Yogendra Pal and others V. Municipality and another, AIR 1994 Supreme Court 2550 by holding that the provisions different in violation of Article 14 of the Constitution of India. However, the said decision has been made prospective in nature. However, the respondents could not have been included more than 25% of the petitioners land in the scheme. It may also be noticed that though scheme is alleged to have been sanctioned in the year 1979 but has been sanctioned only on 15.3.1983. After the sanction by the State Government it cannot be said that scheme was bad in law. The learned senior counsel for the petitioners contended that present case is covered by the judgment of this Court in CWP No. 4759 of 1983 titled Satya Devi & others Vs. Municipal Committee, Bhantinda & another decided on 3.4.2008. This High Court in the said case has also taken a view and held that the scheme as a whole cannot be said to be bad. This petition is also allowed in the same terms and it is ordered that the respondents shall not transfer or take more than 35% of the plot area of the petitioners for utilisation under the Scheme. The respondents are further directed to pay compensation to the petitioners in accordance with law for the area beyond C.W.P. No. 2896 of 1987 -7- 25% of the plot within two months along with interest @ 6% per annum along with other statutory interest and benefit flowing therefrom. The writ petition is allowed. October 4,2008 (VINOD K. SHRMA) 'SP' JUDGE