CIVIL WRIT PETITION NO. 11369 OF 2008 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. DATE OF DECISION : September 09, 2009. Parties Name Ran Singh ...PETITIONER VERSUS State of Haryana and others ...RESPONDENTS CORAM: HON'BLE MR. JUSTICE JASBIR SINGH PRESENT: Mr. Puneet Bali, Advocate, for the petitioner. Mr. Sanjeev Kaushik,Addl. A.G., Haryana, for the respondents. JASBIR SINGH, J. (oral) ORDER: This writ petition has been filed with a prayer to issue a writ of certiorari, to quash notice dated July 4, 2007 (P-3) directing demoliton of a building, owned by the petitioner, on the ground that it was constructed after the area, wherein it is situated, was declared as a Scheduled Area under the provisions of the Punjab Scheduled Roads and Controlled Area Restriction of Unregulated Development Act, 1963, (in short the Act), (as applicable in Haryana). Further challenge is to the order dated May 22, 2008,(P-9) vide which appeal, filed by the petitioner, was dismissed. Facts are not in dispute. Petitioner is owner in possession of CIVIL WRIT PETITION NO. 11369 OF 2008 -2- the land falling in Khatauni No. 38/34, Khasra No. 7//20/1/2, situated in the revenue estate of Bilaspur, tehsil and district Gurgaon, as per Jamabandi for the year 2003. It is case of the petitioner that in the above said land, he had constructed a building before the area was declared as a Scheduled Area under provisions of the Act. It is not disputed by counsel for the parties that Notification to declare area in question as Scheduled/Controlled area was issued on August 5, 2005. Through out before the competent authority and also before the appellate Court, it was case of the petitioner that he had raised the construction before issuance of the notification, mentioned above. This plea was specifically taken before the Appellate Tribunal by raising the following argument: “That only submission of the Ld. Counsel for the appellant is that Hotel was constructed prior to the area was declared as controlled area and the impugned order is non-speaking and order has been passed in a stereo typed manner.” The Appellate Authority rejected above said contention raised by the petitioner by observing as under: “It is the case of the appellant in para No. 2 of the grounds of appeal stated that “Moreover construction of the appellant was raised for purpose subservient to agriculture and it can be used for shop also. There is no evidence on the record to show that any agriculture activity is being carried out in the site in dispute. However, (in)copy of Khasra Girdawari Annexure P- 5, there is entry of Hotel in the area 6.19 for the period 12-10- 2003 to 20-10-07. Therefore, the appellant cannot go out of his CIVIL WRIT PETITION NO. 11369 OF 2008 -3- pleadings taken in the grounds of appeal. It is not the case of the appellant he has constructed a hotel. I, therefore, find that the appellant has not come to this Tribunal with clean hands and argument of the appellant is contrary to his stand. Moreover, Ld. Counsel for the appellant has placed on record copy of AKS SHAJRA. This document does not depict any construction much less for agriculture purposes or of a Hotel. It only shows the location of the land abutting National Highway No. 8 going from Delhi to Jaipur. Therefore, it does not help the appellant at all. Second submission of the appellant is that order is non-speaking and passed in a stereo typed manner. No doubt the order is on a printed proforma but it does not make the order illegal. The notice was for contravention of Section 3 of the Act which relates to erection or re-erection of any building or make or extend any excavation or lay out any means of access to a road within one hundred meters of either side of the road reservation of a bye-pass or express way or within thirty meters on either side of the road reservation of any scheduled road not being bye pass or express way. National Highway No. 8 is a scheduled road and the appellant has taken access to his land without seeking prior permission from the competent authority under the Act. He is proved to have contravened the provisions of Section 3 of the Act. I, accordingly, find no merit in the appeal and dismiss the same. However, the appellant is at liberty to apply for change of land use from the Director, Town and Country Planning, CIVIL WRIT PETITION NO. 11369 OF 2008 -4- Haryana, if so advised.” For recording the findings, mentioned above, the Appellate Authority has not dealt with the issue in a proper manner. Appeal of the petitioner was dismissed on the ground that he has taken a stand that the building in question was constructed for agricultural purposes, whereas at the spot, it is being used as a Hotel. Be that as it may, disputed fact that as to when this building was constructed, it was necessary for the Tribunal to look into the same and decide it. To say that the building was constructed before issuance of the Notification in year 2005, counsel for the petitioner has made reference to the entries made in the Jamabandi for the year 2002- 03 (P1). Perusal thereof indicates that there is no mention regarding construction existing on the Khasra numbers, mentioned above. However, perusal of the order, passed by the Tribunal, indicates that existence of construction is mentioned in Khasra Girdawaris entries for the years 2003 to 2007. Simply, by looking at the entries in the Khasra Girdawari, a finding cannot be given whether a building, which exists at the spot, when notice was issued under the provisions of the Act, was constructed before issuance of the Notification in the year 2005 or not. Furthermore, no finding can be given as to whether after issuance of the Notification, any alteration was made by the petitioner, in the building in question, which otherwise was prohibited under the Act. To give finding on this issue, it is necessary to collect some more evidence. In view of facts, mentioned above, order dated May 22, 2008, (P-9) passed by the Appellate Authority is set aside and the matter is CIVIL WRIT PETITION NO. 11369 OF 2008 -5- remitted to the Appellate Tribunal to decide the appeal, filed by the petitioner, afresh. Both the parties be provided an opportunity to lead evidence to prove their case and only thereafter finding be given as to whether the building in question was constructed before issuance of the Notification or otherwise and thereafter necessary orders be passed. Parties are directed to appear before the appellate Tribunal on October 14, 2009. Till such time appeal is decided, no coercive action shall be initiated against the petitioner. ( Jasbir Singh ) Judge September 09, 2009. DKC