Civil Writ Petition Nos.8028 and 3984 of 2007 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision:-11.2.2011 The Col. Education Society Sector 17, Gurgaon and another ...Petitioners Versus State of Haryana and others ...Respondents CORAM: HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR Present:- Mr.S.K.S.Bedi, Advocate for the petitioners. Ms.Kirti Singh, Deputy Advocate General, Haryana for respondent Nos.1, 3, 4 and 6. Mr.Rameshwar Malik, Advocate for respondent No.2. M ehinder S ingh S ullar , J. (Oral) As identical questions of law and facts are involved, therefore, I propose to dispose of above indicated writ petitions, by virtue of this common judgment, in order to avoid the repetition. However, the facts, which need a necessary mention for the limited purpose of deciding the core controversy, involved in the instant writ petitions, have been extracted from (1) CWP No.8028 of 2007 titled as “The Col. Education Society Vs. State of Haryana and others” in this context. 2. The contour of the facts, culminating in the commencement, relevant for disposal of the present writ petitions and emanating from the record, is that petitioner-The Col. Education Society (for brevity “the petitioner-society”) is running an Institution under the name and style of Gyan Devi Senior Secondary Public School, Sukhrali, situated in Sector 17, Gurgaon. The respondents claimed that the petitioner-society raised un-authorized and illegal constructions in the controlled area in complete violations of the provisions of the Government of India Gazette Notification dated 22.5.2001 issued under sections 3 and 7 of the Works of Civil Writ Petition Nos.8028 and 3984 of 2007 2 Defence Act, 1903 (for short “the Defence Act”) by the Ministry of Defence; provisions of The Punjab Scheduled Roads and Controlled Areas Restriction of Unregulated Development Act, 1963 (hereinafter to be referred as “Act No.41 of 1963”) and the Haryana Municipal Act, 1973 (for brevity “the M.C.Act”) etc. 3. Exhibiting a great concern of violations of the provisions of Act No.41 of 1963, a Division Bench of this Court in case United Riceland Ltd. v. State of Haryana and others, 1998 (1) PLJ 462, inter-alia ruled as under :- “The doctrine of prospective over-ruling cannot be invoked for nullifying the actions taken by the respondents. However, in view of the statement made by the learned Advocate General in the light of the observations made by the Court, we direct the Government to bring about suitable amendment in the 1963 Act to provide for constitution of a Tribunal to deal with and examine the cases involving constructions made upto 28.4.1995 in violation of 1963 Act along scheduled roads and otherwise. Such Tribunal shall be headed by a retired Judge of the High Court and include among others an officer of the rank of Chief Engineer (serving or retied) having special knowledge about roads and highways. This Tribunal will examine the orders passed for demolition of the properties of the petitioners on the ground of violation of Section 3 etc. of the Act and decide whether or not the impugned constructions should be allowed to stay. The Tribunal will also decide whether the claim of exemption made by some of the petitioners is sustainable or not. Such Tribunal shall also be empowered to hear appeals against the orders which may be passed thereafter for demolition of the constructions made in violation of 1963 Act and the Rules framed thereunder. Till the Tribunal decides the cases involving the constructions raised in violation of 1963 Act and the Rules framed thereunder as interpreted hereinabove, the buildings and constructions made prior to 28.4.1995 shall not be demolished. We hope that appropriate steps for amendment of the Act and constitution of the Tribunal will be taken within a period of six months. The Government shall also amend the 1963 Act so as to provide the substantive punishment to the persons who raised construction in violation of the provisions of the Act and the Rules. Appropriate amendment may also be made for imposition of deterrent fine on the violators of the 1963 Act and the Rules. However, all remaining encroachments and constructions made on land forming part of the road plan shall be removed by the authorities. All the Courts in Haryana before whom cases involving illegal Civil Writ Petition Nos.8028 and 3984 of 2007 3 encroachments and constructions made in violation of 1963 Act and Rules framed thereunder are pending shall take steps to decide such cases as early as possible by giving them priority in the matter of fixing of dates. Any construction made in future in violation of the provisions of 1963 Act and the Rules framed thereunder shall not only be demolished after following the procedure prescribed by the 1963 Act but the person responsible for such construction shall be prosecuted under the Act. The Government of Haryana should constitute Special Court, in consultation with the High Court, for expeditious disposal of cases involving offences under the 1963 Act. The Government shall also take appropriate administrative action against the official due to whose connivance or negligence illegal constructions may hereafter be raised.” 4. As the constructions of the school of petitioner-society, in the controlled area, were without any sanctioned plan, approval, permission of change of land use etc. and in complete violations of the provisions of various acts depicted hereinabove, therefore, the respondents initiated appropriate proceedings against it. 5. What is not disputed here is that the petitioner-society had earlier filed CWP No.12474 of 1998, challenging the initiation of curative/penal proceedings and the vires of Act No.41 of 1963, the Rules framed & notification issued thereunder and notices issued by the authorities. That writ petition came to be disposed of alongwith C.W.P.No.1707 of 1998 and a bunch of other similar writ petitions by a Division Bench of this Court, vide order dated 29.9.2004, the operative part of which is as under:- “Mr.H.L.Tikku, learned Senior Counsel attempted to satisfy us that the provisions as contained in Sections 4 to 7 being mandatory, the impugned notices ultra vires those provisions and as such are void. Having heard him and Mr.Randhir Singh, learned Senior Deputy Advocate General, Haryana representing the Government of Haryana and its authorities including the District Town Planner, Gurgaon, we are of the view that the Petitioners can still agitate all questions which they are raising in these writ petitions, some of which are questions of fact and some according to them are jurisdictional questions, which if raised before the District Town Planner, Gurgaon, he will be duty bound to record his Civil Writ Petition Nos.8028 and 3984 of 2007 4 reasons objectively, notwithstanding whatever has been stated in the pleadings or affidavits of the respondents, which are required to be filed within one month from today. We once again clarify that all questions, whether of fact and/or of jurisdiction including the mandatory nature of the statutory provisions, are required to be gone into by the District Town Planner while considering the replies of the Petitioner. We order accordingly. We also clarify that if the replies of the petitioners are not accepted by the District Town Planner, Gurgaon then it will be open for the Petitioners to redress their grievances before an appropriate forum including before this Court, if any report is submitted by the Monitoring Cell in terms of the direction made by the Supreme Court, and it goes without saying that till that is not done their constructions will not be demolished by the Respondents.” 6. In pursuance of this order, the petitioner-society filed the representation, which was considered and rejected by the District Town Planner, Enforcement, Gurgaon, exercising the powers of Director, Urban Development, Haryana (respondent No.4), in view of the provisions of Act No.41 of 1963 and M.C.Act, by virtue of impugned order dated 18.10.2005 (Annexure P5). 7. Aggrieved by the order (Annexure P5), the petitioner-society filed the appeal, which was dismissed as well, by Justice Iqbal Singh (retired) Chairman, Tribunal Haryana, Chandigarh, by means of impugned order dated 16.4.2007 (Annexure P6). 8. The petitioner-society still did not feel satisfied and filed the instant writ petitions, challenging the impugned orders (Annexures P5 and P6), invoking the provisions of Articles 226 and 227 of the Constitution of India. 9. The case set up by the petitioner-society, in brief in so far as relevant, was that the land, on which the building of its school is situated, was included in the area of Municipal Committee now Municipal Council (for short “M.C.area”) (respondent No.2) in the year 1995. According to it (the petitioner-society) that since the land, on which its building is situated, was included in the MC area, so, the provisions of Act No.41 of 1963 will not be applicable. Thus, the impugned Civil Writ Petition Nos.8028 and 3984 of 2007 5 orders (Annexures P5 and P6) were stated to be illegal and arbitrary. 10. Sequelly, the petitioner-society, in CWP No.3984 of 2007, has also challenged the order dated 7.7.2005 (Annexure P10), by virtue of which, the sanction of site plan was declined by the Executive Officer of the M.C. and order dated 26.6.2006 (Annexure P14), by means of which, its appeal was dismissed by the Deputy Commissioner (respondent No.3). The grounds of challenge of these orders are almost identical as described hereinabove in the first writ petition. Additionally, it was alleged that once the M.C.has accepted the development charges/fees, then it cannot refuse to sanction the site plan of the petitioner- society. It was claimed that as the State Government did not frame any scheme as required under section 203G of the M.C.Act, therefore, the M.C.was required to sanction its site plan for construction of building in this behalf. 11. Levelling a variety of allegations and narrating the sequence of events, in all, the petitioner-society claimed that once the area has fallen within the MC area, then the provisions of Act No.41 of 1963 are not applicable. Thus, the impugned orders are illegal and without jurisdiction. The respondents were stated to have allowed the construction to other similarly situated buildings and thus the plea of discrimination has also been pressed into service. On the basis of aforesaid allegations, the petitioner-society filed the present writ petitions for quashing the impugned orders (Annexures P5, P6, P10 and P14) in the manner indicated here- in-above. 12. The respondents contested the claim of the petitioner-society and respondent No.2 filed its written statement, inter-alia pleading certain preliminary objections of, maintainability of the petitions, locus standi and cause of action of the petitioner-society. It was claimed that the petitioner-society has raised unauthorized constructions in the controlled area in an illegal manner, in complete violations of the provisions of the Defence Act, Act No.41 of 1963 and the M.C. Act. The contesting respondents alleged that since the M.C. has no jurisdiction to Civil Writ Petition Nos.8028 and 3984 of 2007 6 sanction the building plan of the land in question of the petitioner-society without seeking certificate of change of land use, so, the sanction/permission was rightly declined. It will not be out of place to mention here that the contesting respondents have stoutly denied all other allegations contained in the writ petitions and prayed for their dismissal. That is how I am seized of the matter. 13. Assailing the impugned orders, the learned counsel for the petitioner- society, contended with some amount of vehemence that as once the land has fallen in the MC area, then the provisions of Act No.41 of 1963 are not applicable, therefore, the impugned orders (Annexures P5 and P6) (subject matter of CWP No.8028 of 2007) are illegal. The argument is that since the petitioner has already deposited the charges/fees and M.C. is bound to sanction its site plan, so, the impugned orders (Annexures P10 and P14) (subject matter of CWP No.3984 of 2007) are arbitrary. 14. Hailing the impugned orders, on the other hand, the learned counsel for the contesting respondents urged that as the petitioner-society has illegally raised the construction over the controlled area, without any sanction and in violation of the provisions of the Defence Act, Act No.41 of 1963 and the M.C. Act, therefore, the impugned orders were rightly passed and no interference is warranted in this regard. 15. Having heard the learned counsel for the parties, having gone through the record and relevant legal provisions with their valuable help and after bestowal of thoughts over the entire matter, to my mind, there is no merit in the instant writ petitions. 16. Ex facie, the argument of learned counsel for petitioner that since the area has fallen in the MC area, so, the provisions of Act No.41 of 1963 will not be attracted and the impugned orders are thus illegal, is not only devoid of merit but misplaced as well in this context. 17. As is evident from the record that the land in dispute, where the Civil Writ Petition Nos.8028 and 3984 of 2007 7 building of the petitioner-society is situated, was notified as controlled area, by way of notification dated 3.7.1964 under the provisions of Act No.41 of 1963. The petitioner-society is running its school since 1984, initially in a rented accommodation. Subsequently, it purchased the land in question. The final development plan of Gurgaon was published in the year 1996. The District Town Planner (Enforcement) (respondent No.6) had issued show cause notice dated 20.10.1992 to the petitioner-society for complete violations of the provisions depicted hereinabove and afforded opportunity of personal hearing on 3.11.1992, but it did not submit any relevant documents in this regard. Therefore, another order dated 30.11.2005 was passed. As per the provisions of Act No.41 of 1963, no construction can be raised in the controlled area without prior permission of the competent authority. The petitioner-society has illegally raised construction for institutional purposes within the controlled area, without approval or sanction from the competent authority and in violations of the provisions of the indicated Acts. The area of the school falls within the extended municipal limits of Gurgaon. 18. Such thus being the position on record, now the short and significant question, though important, that arises for determination in these petitions is, as to whether the controlled area already notified, by means of notification dated 3.7.1964 under the provisions of Act No.41 of 1963, would cease to be controlled area after inclusion of that area in the M.C. or not ? 19. Having regard to the rival contentions of learned counsel for the parties, to my mind, obvious answer is in the negative and such area will remain a controlled area notwithstanding the fact that subsequently, it was included in the M.C. area 20. As is clear that the land in question was declared as controlled area, by virtue of notification dated 3.7.1964, in view of the provisions of Sections 4 and 5 of Act No.41 of 1963. The petitioner-society is running its school since 1984 initially in a rented accommodation in Gurgaon. Subsequently, it purchased the Civil Writ Petition Nos.8028 and 3984 of 2007 8 land in question, vide registered sale deed dated 26.6.1971 from Fateh Singh, Tara Singh and Om Parkash sons of Rattan Singh and constructed the school building in complete violations of provisions of law in the year 1992 situated in village Sukhrali. 21. As Section 6 of Act No.41 of 1963 postulates that except as provided hereinafter, no person shall erect or re-erect any building or make or extend any excavation or lay out any means of access to a road in a controlled area save in accordance with the plans and the restrictions and conditions referred to in section 5 and with the previous permission of the Director. 22. Sequelly, Section 7 further posits that no land within the controlled area shall, except with the permission of the Director, [and on payment of such conversion charges as may be prescribed by the Government] be used for purposes other than those for which it was used on the date of publication of the notification under sub-section (1) of section 4. 23. Likewise, Section 203 of the M.C.Act deals with the building scheme within its jurisdiction. Section 203C provides that “notwithstanding anything to the contrary contained in Act No.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.” Proviso to this Section envisages that the plans of the areas already declared as controlled areas by the Director, Town and Country Planning and nature of restrictions and conditions made applicable to such controlled areas, may be adopted as such or with the modifications by the Director, with prior approval of the State Government. 24. Similarly, Section 203D of the M.C.Act escalates that no land and building within the controlled area shall, except with the permission of the Civil Writ Petition Nos.8028 and 3984 of 2007 9 Director and on payment of such conversion charges, scrutiny fee and development charges as may be prescribed from time to time, be used for purposes, other than those for which it was used on the date of publication of the notification under sub-section (1) of section 203C. 25. A conjoint reading of these provisions would reveal that once the area has been declared as controlled area, in view of the provisions of Act No.41 of 1963, then, it will remain a controlled area irrespective of the fact that it was subsequently included in MC area. In that eventuality, neither any person shall erect or re-erect any building without prior approval/sanction of the competent authority nor the area can be used for the purposes other than those for which it was used on the date of publication of the notification without prior permission of the Director and on payment of such conversion charges, scrutiny fee and development charges as may be prescribed from time to time. 26. Again, it is not a matter of dispute that the petitioner-society has neither obtained any approval/sanction from the competent authority nor taken any permission of change of land use for the institutional purposes, from the Director. Therefore, in the absence of such approval/sanction, legally, it (petitioner-society) cannot possibly be permitted to raise construction on the land situated in the controlled area. Its subsequent inclusion in the MC area will not change its character, in view of the provisions of section 203C and D of the M.C.Act in this respect. 27. An identical question arose before the Hon'ble Apex Court in case Royal Paradise Hotel (P) Ltd. v. State of Haryana and others (2006) 7 Supreme Court Cases 597. Having considered the relevant provisions of Act No.41 of 1963 and the Municipal Act, it was observed (para 9) as under :- “As regards the alleged inclusion of this area in Karnal Municipality, we find that such a contention was never put forward. Even if subsequently a Municipality Act has been extended, the illegality and violation of the Act cannot be condoned by the authorities under that Act or by any court Civil Writ Petition Nos.8028 and 3984 of 2007 10 administering law and justice and no authority, whether the highway authority or the Municipal Authority, is entitled to reward a person indulging in such illegal activity. Therefore, nothing turns on the point sought to be raised for the first time in this Court by the appellant by way of IA No. 2 of 2005. The plea based on that is hence rejected.” 28. In this manner, it is held that the petitioners are not legally entitled to erect or re-erect the construction of any building without prior approval/sanction of the competent authority nor the area can be used for the purpose other than that for which it was used on the date of publication of the notification of controlled area, without prior permission of the Director and on payment of such conversion charges, scrutiny fee and development charges as may be prescribed from time to time. 29. In the wake of the same sequence and for the same indicated reasons, to me, the Executive Officer has rightly declined to sanction the site plan for want of required “No Objection Certificate”, by way of impugned order (Annexure P10), despite the fact that the petitioner-society has deposited the charges/fees. Sequelly, the Deputy Commissioner (Appellate Authority) did not commit any error in dismissing its appeal, by means of impugned order (Annexure P14) in this relevant connection. Therefore, the contrary arguments of the learned counsel for the petitioners “stricto sensu” deserve to be and are hereby repelled under the present set of circumstances and the impugned orders (Annexures P10 and P14) are liable to be and are hereby maintained in this context. 30. Now the next feeble argument of the learned counsel for the petitioner-society that there was no proper publication of the notification declaring the area as controlled area as required under section 4(2) of Act No.41 of 1963, also deserves to be repelled for more than one reason. At the first instance, no material much less cogent, is forth coming on record to show that the Government did not cause the contents of the declaration in two newspapers, particularly when the respondents have stoutly denied the same. Secondly, this question is not res integra and is well settled by the Hon'ble Supreme Court in case Rajinder Singh v. Civil Writ Petition Nos.8028 and 3984 of 2007 11 State of Haryana (2005) 9 SCC 1, wherein it was held that section 4(2) of the Act was not mandatory in the sense that the failure to publish in two newspapers would render the original notification of the declaration issued under section 4(1) non-est. The similar argument, that the area had not been notified and declared as controlled area within the meaning of Act No.41 of 1963, was rejected by Hon'ble Apex Court. 31. The next cosmetic argument of the learned counsel that since many other buildings have already been constructed in the vicinity, so, the M.C. cannot discriminate the petitioner-society in this behalf, is not only devoid of merit but misplaced as well. At the first instance, the petitioner-society has miserably failed to produce the sanctioned site plans of any such building in the vicinity nor other proof in this respect. Assuming for the sake of argument (though not admitted) even if some persons have illegally constructed the buildings in violations of the provisions of Act No.41 of 1963 or the M.C. Act, then it will not grant the licence to the petitioner-society to raise un-authorized constructions in violations of the statutory provisions of law in this regard. 32. There is another aspect of the matter, which can be viewed from a different angle. The representation filed by the petitioner-society in pursuance of the order dated 29.9.2004 of this court was dismissed by the District Town Planner, Enforcement (respondent No.4), by means of impugned order dated 18.10.2005 (Annexure P5). The matter was re-examined by Justice Iqbal Singh (retired) Chairman, Tribunal, Haryana and the appeal filed by the petitioner-society was dismissed as well, by virtue of impugned order (Annexure P6). 33. Meaning thereby, having considered and appreciated the entire relevant material/evidence brought on record by the parties in the right perspective, the Director and the Tribunal have decided the case on merits and recorded the valid reasons in this relevant direction. Such well-articulated and well reasoned orders containing valid reasons cannot legally be interfered with, in exercise of Civil Writ Petition Nos.8028 and 3984 of 2007 12 extraordinary writ jurisdiction of this Court, unless and until, the same are perverse and without jurisdiction. As no such patent illegality or legal infirmity has been pointed out by the learned counsel for the petitioners, therefore, the impugned orders deserve to be and are hereby maintained in the obtaining circumstances of the case. 34. No other legal point, worth consideration, has either been urged or pressed by the learned