IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No. 14404 of 2006 & connected cases Date of Decision: December 14, 2010 Suresh Kumar Juneja ...Petitioner Versus State of Haryana and others ...Respondents CORAM: HON'BLE MR JUSTICE M.M. KUMAR HON'BLE MS JUSTICE RITU BAHRI Present: For the Petitioner(s): Mr. Puneet Bali, Advocate, (in CWP No. 14404 of 2006) Mr. J.P. Sharma, Advocate, (in CWP No. 9504 of 1989) None in CWP No. 11284 of 1989 & CWP No. 1106 of 1991 For the Respondents: Mr. R.K.S. Brar, Addl. AG, Haryana. 1. To be referred to the Reporters or not? Yes 2. Whether the judgment should be reported in the Digest? Yes M.M. KUMAR, J. 1. This judgment shall dispose of a bunch of four petitions* because common question of law and facts are involved. However, the facts are being referred from CWP No. 14404 of 2006. The petitioner in this petition filed under Article 226 of the Constitution has challenged Memo. No. STP(E)1891, dated 21.6.2006 (P-2), issued by the Director, Town and Country Planning, Haryana- respondent No. 2 making it mandatory to obtain 'No Objection Certificate' before registration of documents. Challenge has also been made to Section 7-A of the Haryana Development and C.W.P. No. 14404 of 2006 & connected cases Regulation of Urban Areas Act, 1975 (for brevity, 'the Act') being ultra vires Section 17 and other provisions of the Registration Act, 1908 (for brevity, 'the Registration Act'). Still further a direction has been sought to the Tehsildar, Ballabgarh-respondent No. 4 to register the sale deed dated 28.8.2006 (P-1). 2. Brief facts of the case are that the petitioner entered into an agreement to sell in respect of land measuring 75 square yards, with one Shri Tarun Mehndiratta son of Shri G.D. Mehndiratta, resident of House No. 232, Sector 15, Tehsil and District Faridabad. It has been submitted that the petitioner is not only desirous to purchase the aforesaid land measuring 75 square yards but he is also interested to purchase land of about two-three acres in the same Tehsil and Village i.e. Mauja Ranhera, Tehsil Ballabgarh, District Faridabad. After purchasing stamp papers, he presented the sale deed dated 28.8.2006 (P-1) before the Tehsildar, Ballabgarh-respondent No. 4, who refused to register the same. He was informed that on 21.6.2006, the Director, Town and Country Planning, Haryana-respondent No. 2 issued instructions to the District Town Planner (Enforcement), Faridabad, stipulating that it is mandatory to obtain 'No Objection Certificate' and present the same at the time of registration of documents. In fact, the Chief Minister, Haryana, held a meeting with the Deputy Commissioners/ Superintendents of Police on 12.2.2006 and it was decided that 'No Objection Certificate' be made mandatory at the time of registration of sale of lands in 'urban areas' as defined/notified under the Act so as to prevent un-authorised colonisation at the initial stage. In pursuance of the said decision, the Financial Commissioner and Principal Secretary to Government Haryana, Department of Revenue and Disaster Management, also issued a letter dated 28.4.2006, 2 C.W.P. No. 14404 of 2006 & connected cases containing Point No. 5(iii) of the minutes of the said meeting, which reads thus: "C.M. directed that NOC be made mandatory at the time of registration to prevent unauthorized colonies, but at the same time, Deputy Commissioners should ensure that no properties are sold on GPA. The format of NOC as proposed in agenda papers was discussed and approved with the modification that it would be applicable to both sellers and buyers." 3. It is pertinent to mention here that the Act is applicable to all 'urban areas' in the State of Haryana. In the 'Statement of Objects and Reasons' of the Act, it has been mentioned that it seeks to regulate the use of land in order to prevent the ill-planned and haphazard urbanisation in or around towns in the State of Haryana. The definition of ‘Urban Area’ has been given in Section 2(o) of the Act, which reads thus:- "2(o). "urban area" means any area of land within the limits of a municipal area or notified area or the Faridabad Complex or situate within five kilometers of the limits thereof, or any other area where, in the opinion of the Government, there is a potential for building activities and the Government by means of a notification declares." 4. The petitioner has placed on record a circular dated 28.7.2005 (P-3), issued under Section 2(o) of the Act, declaring certain villages in Tehsil Ballabgarh as ‘urban areas’, which also include village Ranhera. 5. At this stage it is pertinent to mention here that after obtaining 3 C.W.P. No. 14404 of 2006 & connected cases the assent of the President of India on 24.5.1989, vide notification dated 9.6.1989 (R-1), the legislature of the State of Haryana made amendments in the Act, inter alia, inserting Section 7-A, which reads thus: "7-A. Registration of certain documents.- Notwithstanding anything contained in any other law for the time being in force, where any document is required to be registered under the provisions of Section 17 of the Indian Registration Act, 1908, purporting to transfer by way of sale or lease any vacant land having an area of less than one hectare in an urban area as may be notified specifically by the Government from time to time for the purposes of this section, no Registration Officer appointed under the above said Act shall register any such document unless the transferor produces before such Registration Officer a no object certificate issued by the Director or an officer authorized by him in writing in this behalf, to the effect that the said transfer does not contravene any of the provisions of this Act and its rules and such no objection certificate shall be issued within ninety days of the date of receipt of the application for the same: Provided that – (a) if the area of vacant land, which is proposed to be transferred does not exceed one thousand square metres, the above said no objection certificate shall be issued within thirty days of the date of receipt of application by the Director, where - (i) the land is situated in a colony for which a 4 C.W.P. No. 14404 of 2006 & connected cases licence has been issued under Section 3 of this Act; or (ii) the transfer proposed is as a result of family partition, inheritance, succession or partition of joint holdings not with the motive of earning profit; or (iii) the transfer is in furtherance of any scheme sanctioned under any law; (b) if the above said application for grant of no object certificate submitted to the Director or an officer authorized by him in writing in this behalf is not disposed off through an order in writing within the prescribed periods of ninety days or thirty days as described in this section, the no objection certificate shall be deemed to have been granted; (c) all applications for grant of no objection certificates shall be accompanied by the following documents:- (i) title of land; (ii) draft copy of registration deed; (iii) an affidavit to the effect that the site is covered under this Section, if the area of the land does not exceed one thousand square metres.” 6. A bare perusal of Section 7-A of the Act reveals that where any document is required to be registered under the provisions of Section 17 of the Registration Act, purporting to transfer by way of sale or lease any vacant land having an area of less than one hectare in an 'urban area', as may be notified specifically by the Government from time to time, no Registration 5 C.W.P. No. 14404 of 2006 & connected cases Officer appointed under the Act is to register any document unless a 'No Objection Certificate' has been issued by the Director or an officer authorised by him. 7. The petitioner has alleged that by virtue of the Memo. dated 21.6.2006 (P-2) and the provisions of Section 7-A of the Act, no sale deed was being registered within the notified area under Section 2(o) of the Act, whether below one hectare or above the same, for want of 'No Objection Certificate'. According to the petitioners, the officers are misusing the Memo. dated 21.6.2006 (P- 2) as well as Section 7-A of the Act for their own benefit. The petitioner has cited some of the instances where sale deeds have been registered despite the said Memo./ Section, whereas the petitioner and some similarly situated persons were discriminated. The following instances under the jurisdiction of Tehsildar, Ballabgarh, have been cited: : - Sr.No . Registration No. Dated 1. 4397, 4398, 4399, 26.7.2006 2. 4400, 4401, 4402, 4403 26.7.2006 3. 4407 26.7.2006 4. 4788, 4789 3.8.2006 5. 4799 3.8.2006 8. The further grievance of the petitioner is that under Section 7-A of the Act, a 'No Objection Certificate' is required if sale deed to be registered is in respect of a land measuring less than one hectare. However, vide Memo. dated 21.6.2006 (P-2), a complete ban has been imposed on registration of sale deeds regardless of the fact that the land is above one hectare or not. 9. After referring to the provisions of Section 17 of the Registration Act, the petitioner has submitted that there is no requirement of getting any 'No Objection Certificate' from any 6 C.W.P. No. 14404 of 2006 & connected cases person before the registration of a Sale Deed in respect of land measuring less than one hectare. The legislation in relation to registration of documents was incorporated in the year 1908 and without there being any amendment either by the State or by the Centre in the Registration Act, a procedure unknown to the provisions of the Registration Act cannot be inserted by enacting an alien legislation, by the respondent State. On this premise, the petitioner has challenged the vires of Section 7-A of the Act. 10. The stand of the respondents is that the matter is covered by a Division Bench judgment of this Court rendered in the case of Sangeeta Kalra v. State of Haryana, 1994 (3) RRR 153, wherein reference was also made to an earlier Full Bench judgment of this Court rendered in the case of Krishan Chand v. State of Haryana (CWP No. 765 of 1978, decided on 17.3.1978) and another Division Bench judgment rendered in the case of Manohar Singh v. State of Haryana (CWP No. 7656 of 1991, decided on 25.9.1991. It has been pointed out that the main object of the Act as per its preamble is to regulate use of land and to prevent its unplanned and haphazard utilization by developing unauthorised colonies. Section 7 of the Act prohibits transfer of plots in colonies without licence unless there is an exemption. The power under Section 7-A of the Act is guided by the said consideration. In this manner, issuance of Memo. dated 21.6.2006 has been justified. 11. On 17.4.2009, when the matter came up for consideration before the Division Bench, the following pertinent observations were made:- "1. This petition seeks quashing of memo dated 21.6.2006 to the effect that No Objection Certificate be made mandatory at the time of registration of sale of 7 C.W.P. No. 14404 of 2006 & connected cases lands in urban areas notified under the Haryana Development and Regulation of Urban Areas Act, 1975 (the Act). Challenge is also to Section 7A of the Act which incorporates prohibition against registration of any documents purporting to transfer any land having area less than one hectare in a notified urban area unless the NOC is obtained. 2. On the last date of hearing, learned counsel for the State submitted that the matter was covered by the judgment of this Court dated 15.10.1993 in CWP No. 9174 of 1989 (Sangeeta Kalra v. State of haryana), wherein reference was made to earlier judgment dated 17.3.1978 of five Judges Bench of this Court in CWP No. 765 of 1978 (Krishan Chand v. The State of Haryana and others) and a judgment of Division Bench of this Court dated 10.5.1979 in CWP No. 7656 of 1991 (Manohar Singh v. The State of Haryana and others). 3. Learned counsel for the petitioner submits that in the earlier judgments, the question of validity of impugned provision and the notification on the ground raised in this petition was not considered. The ground raised is that Section 7A of the Act confers unguided powers for granting or declining NOC and is ultra vires Article 245 of the Constitution. Reliance is placed on the judgment of the Hon'ble Supreme Court in State of Rajasthan and others v. Basant Nahata, (2005) 12 SCC 77, wherein provision of Section 22A of the Registration Act, 1908, as inserted in the Rajasthan Registration Act, was struck down on the ground that restriction of 8 C.W.P. No. 14404 of 2006 & connected cases registerability of power of attorney which was sought to be justified on the ground of public policy was ultra vires the legislative competence and also Article 300A of the Constitution. 4. Question in the present case is whether Section 7A of the Act confers unguided powers upoin the Executive to restrict transaction of sale or there is guidance available in the Scheme of the Statute. The object of the Statute as mentioned in the Preamble is to regulate use of land to prevent unplanned and haphazard utilization in colonies. Section 7 prohibits transfer of plots in colonies without licence unless there is an exemption. There being prohibition against transfer of plots which may result in setting up of unauthorized or haphazard colonies, the question is whether power under Section 7A of the Act is guided by the said consideration. The State Legislation may be referable to Entry 18 of List II and may not be repugnant to the Central Law i.e. the Registration Act. Further question is that notification is beyond the scope of Section 7A of the Act in prohibiting registration of all sales, beyond the categories covered by Section 7A." 12. We have heard learned counsel for the parties. Every State is aiming at planned development of its urban areas so as to avoid any haphazard growth of illegal colonies which may later become wholly un-acceptable. The respondent State of Haryana has long ago enacted an Act in the year 1975 in order to prevent ill- planned and haphazard urbanisation in or around towns in the State of Haryana. The constitutional validity of the Act was challenged 9 C.W.P. No. 14404 of 2006 & connected cases before a Full Bench of this Court in the case of Krishan Chand (supra). The view of the Full Bench was followed and applied by a Division Bench in the case of Sangeeta Kalra (supra). However, the Act was again amended by inserting Section 7-A by notification dated 9.6.1989 (R-1) after the President of India accorded his assent on 24.5.1989. The notification incorporates a non-obstente clause which is to the effect that if any vacant land is sought to be transferred and is less than one hectare, situated in an urban area, as may be notified specifically, then no Registration Officer appointed under the Registration Act, 1907, is to register such a document without ‘No Objection Certificate’ issued by the Director or by an officer authorised by him. The object of the provision is to prevent haphazard and un-planned growth of residential/ commercial colonies. The amendment cannot be considered beyond the legislative competence of the State Legislature and the same is referable to concurrent list Entry 6, List-III of the Seventh Schedule of the Constitution, which provides as under:- “6. Transfer of property other than agricultural land; registration of deeds and documents." 13. It is evident that the State is competent to frame law concerning the land which may include transfer and alienation of non-agricultural land, land improvement and colonization. In order to avoid any controversy based on Entry 6, List-III of the Seventh Schedule, which also deals with “..........registration of deeds and documents”, the respondent State had issued a certificate as per the requirement of Article 254(2) of the Constitution before obtaining the assent of the President. According to the requirement of Article 254(2), the State Government is obliged to give a declaration that the law made by it is in respect of one of the matter 10 C.W.P. No. 14404 of 2006 & connected cases enumerated in the Concurrent List by mentioning Entry/Entries of that list and that it contains provisions or provision which is repugnant to law enacted by the Parliament or existing law. The words "reserved for consideration", appearing in Article 254(2) would indicate that there should be active application of mind by the President to the repugnancy pointed out between the proposed State law and the earlier law made by the Parliament. The State Government is further required to highlight the necessity of having such a law in the State, which is repugnant to a law enacted by the Parliament prevailing in a State. The aforesaid expression has been interpreted by Hon’ble the Supreme Court in the case of Kaiser-1- Hind Pvt. Ltd. v. National Textile Corpn. (Maharashtra North) Ltd., (2002) 8 SCC 182, which conclude that the word 'consideration' would manifest that after careful thinking over and due application of mind regarding the necessity of having State law which is repugnant to the law made by the Parliament, the President may grant assent. It is reaffirmed by use of word "assent" in Article 254 (2) which necessarily implies knowledge of the President to the repugnancy between the State law and the earlier law made by the Parliament on the same subject matter and the reasons for grant of such assent. Once all such requirements are fulfilled in respect of the law proposed for the assent of the President then it is not possible to declare the amendment, which has been brought on 9.6.1989 (R-1), as ultra vires unless it is successfully shown that the State Legislature has over-stepped its competence by proving that subject falls in List I of the seventh schedule or the law is otherwise violative of Article 14 or any other provision of the Fundamental Right Chapter. 14. The only argument raised was that the amendment has 11 C.W.P. No. 14404 of 2006 & connected cases been made in contravention of Section 17 of the Registration Act, which is a Parliamentary Act and the same is liable to be declared ultra vires of the Registration Act as well as beyond the competence of the State Legislature. However, that argument stands answered because assessment fulfills all the necessary requirements of Article 254(2) of the Constitution. However, in support In support of the argument reliance has been placed on the judgment of Hon’ble the Supreme Court rendered in the case of State of Rajasthan v. Basant Nahata, (2005) 12 SCC 77. In that case, Section 22-A was incorporated in the Registration Act by the State of Rajasthan arrogating power to the State Government to declare that registration of any document or class of documents is opposed to public policy and also by imposing a restriction on the Registration Officer by refusing to register any such document in respect of which a notification has been issued. Hon’ble the Supreme Court sustained challenge to the constitutional validity of the aforesaid provision on various grounds including the excessive delegation of essential legislative function to the executive and the delegation of power being unguided, uncontrolled and vague. It was further held that public policy is not capable of being given any precise meaning which are vague and uncertain. 15. In the present case none of these considerations would be attracted because the amendment which has been sought to be incorporated by Section 7-A is only regulatory in nature. There is ample statutory guidance available. The area of land for which ‘No Objection Certificate’ requires is specified and the same is not left to the whims and caprices of the executives. Furthermore, there is no complete prohibition but a ‘No Objection Certificate’ is required to be obtained which has a avowed object of avoiding haphazard 12 C.W.P. No. 14404 of 2006 & connected cases growth in respect of the urban area for which notification has been issued. Moreover, the amendment has received the assent of the President, therefore, the question of legislative competence of the State Legislature would not arise, especially when the vires of the Act itself has been upheld by a Full Bench of this Court in Krishan Chand’s case (supra) followed by the Division Benches. Therefore, we are of the view that no right of the petitioners, much less a constitutional right, has been violated. 16. Some controversy was raised with regard to discriminatory treatment by the respondent-State being meted out to the petitioners, by pointing out that title documents in respect of land measuring less than one hectare, situated in notified urban area, have been registered. It is well settled that an individual illegal act would not arm the petitioners with an argument that a mandamus must be issued to compel the State Government to repeat the illegality. For the aforesaid proposition, reliance may be placed on the judgment of Hon’ble the Supreme Court rendered in the case of Bondu Ramaswamy v. Bangalore Development Authority, (2010) 7 SCC 129. Therefore, we do not find any substance in the aforesaid argument raised by the learned counsel for the petitioner(s). 17. As a sequel to the above discussion, Section 7-A of the Act as incorporated by notification dated 9.6.1989 (R-1), is declared as intra-vires and the constitutional validity of the same is upheld. Consequentially, the Memo dated 21.6.2006 (P-2), issued by the Director, Town and Country Planning, Haryana, making mandatory to obtain ‘No Objection Certificate’ in respect of the specified transfer deeds, is also upheld. Accordingly, these petitions fail and the same are dismissed. 13 C.W.P. No. 14404 of 2006 & connected cases 18. A photocopy of this judgment be placed on the file of each of the connected petition. (M.M. KUMAR) JUDGE (RITU BAHRI) December 14, 2010 JUDGE Pkapoor * Sr. No. C.W.P. No. Title 1. 9504 of 1989 Bishan Kumar and others v. State of Haryana and another 2. 11284 of 1989 Anil Kumar and another v. State of Haryana and others 3. 1106 of 1991 Smt. Daya Gupta and others v. State of Haryana and another 4. 14404 of 2006 Suresh Kumar Juneja v. State of Haryana and others (M.M. KUMAR) JUDGE (RITU BAHRI) December 14, 2010 JUDGE Pkapoor 14