IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.16532 of 2009 (O&M) Date of decision: 21st December, 2009 M/s Shivam Infratech Private Limited and another … Petitioners Versus Union of India and others … Respondents CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. Ashok Aggarwal, Senior Advocate with Mr. Adarsh Jain, Advocate for the petitioners. Dr. Anmol Rattan Sidhu, Assistant Solicitor General of India with Mr. Onkar Singh Batalavi, Standing Counsel for respondents No.1 to 3. Mr. Sunil Nehra, Sr. Deputy Advocate General, Haryana for respondents No.4 and 7. Mr. Arun Walia, Advocate for respondents No.5 and 6. KANWALJIT SINGH AHLUWALIA, J. (ORAL) By this common order, two writ petitions, viz. amended Civil Writ Petition No.16532 of 2009 titled ‘M/s Shivam Infratech Pvt. Ltd. and another v. Union of India and others’ and Civil Writ Petition No.18173 of 2009 titled ‘Vatika Limited and others v. Union of India and others’ shall be decided together. Petitioners are companies registered under the Companies Act and they are real estate developers and have been granted license by the State of Haryana to develop commercial and residential colonies. The area of activity for the present writ petitions pertains to Khasra No.315, 319, 2482/320/2/1/2/1/1, 2482/320/2/2/1/1, 548/1/1, 308, 318/2, 314/2, 304/2/2 situated in the revenue estate of Shikohpur, Tehsil and District Gurgaon, where they intended to set up residential colonies. To be Civil Writ Petition No.16532 of 2009 (O&M) precise, the dispute pertains to land falling within Khasra No.318/2 and 319. Petitioners have impleaded Union of India through its Secretary, Ministry of Petroleum & Natural Gas; M/s Gas Authority of India Limited (hereinafter referred to as ‘GAIL’) through its Managing Director; State of Haryana through Commissioner and Secretary, Department of Town and Country Planning; Haryana Urban Development Authority and the Director, Town and Country Planning Haryana as respondents, and made a prayer that this Court should issue a writ in the nature of certiorari and quash the action of respondents No.1 and 2, i.e. Ministry of Petroleum & Natural Gas and GAIL to lay gas pipe line in the land owned and possessed by the petitioners, as the same is contrary to minutes of the meeting (Annexure P-1) (reproduced in later part of the judgment) held on 28th May, 2009 and letter issued by the District Town and Country Planning, Gurgaon dated 5th August, 2009 (Annexure P-11). A further prayer made in the writ petition is that a writ in the nature of mandamus be issued directing the respondents to re-route the gas pipe line through the green belt instead of residential sectors, to be specific, from the area demarcated for public utility services. The Planning Commission and Ministry of Petroleum & Natural Gas, in the larger public interest, felt the necessity to provide natural gas through gas pipe line to the entire India by establishing gas pipe line grid. Gas pipe line is to be laid in a phased manner for multiple purposes. The gas pipe line, which is being laid and made subject matter of present writ petition, is to pass through Chainsa – Gurgaon – Jhajjar – Hissar. Needless to say, with the laying of gas pipe line, there will be overall development of this region. It will give impetus to industry and transportation sector, leading to generation of employment and overall prosperity of the State. Not only will it improve the fiscal health of the 2 Civil Writ Petition No.16532 of 2009 (O&M) State, but also swell collection of taxes for the State. Natural gas is to be used for city gas supply to cater to need of domestic customers. It is also likely to change the way of life of the residents around the gas pipe line. Natural gas is an alternative fuel to the present day for petroleum consumption. It is not only environmental friendly, but has got less operational hazards. Use of Compressed Natural Gas (CNG) in Delhi shows that it has curtailed the pollution and this gas is commonly termed as green fuel. Government of India, on 15th September, 2008, issued notification (Annexure A) under Section 3 (1) of [The] Petroleum and Minerals Pipelines (Acquisition of Right of User in Land) Act, 1962 (50 of 1962) (hereinafter referred to as, ‘the 1962 Act’). This notification, as per the statute prescribed, called for interested persons to file their objections within 21 days. As a consequence to the notification (Annexure A) issued on 15th September, 2008, another notification (Annexure B) was issued by the Government of India on 5th February, 2009 under Section 6(1) of the 1962 Act. It was specifically stated in that notification that the objections received from the public to the laying of the gas pipe line have been considered and disallowed by the competent authority. Under sub section (4) of section 6 of the 1962 Act, Government of India intended to acquire rights of user in land for laying the gas pipe line. Admittedly, no objections were filed by the petitioners, HUDA and State of Haryana which includes Department of Town and Country Planning Haryana. It is also not disputed that petitioners have been granted license No.258 of 2007 on 19th November, 2007 by the Department of Town and Country Planning, Haryana for developing the land in dispute and other adjoining lands in total area measuring 6 acres for setting up commercial/residential colonies. In addition to the above, a letter of intent for setting up 3 Civil Writ Petition No.16532 of 2009 (O&M) commercial colony over the area measuring 3.66 acres besides the area of 6 acres had also been issued in favour of the petitioner Companies. It is asserted by the petitioners in the present petition that they came to know about laying of the proposed gas pipe line on 23rd January, 2009 and they submitted representation to Chief Administrator, HUDA. The first representation submitted by the petitioners is annexed as Annexure P-6 with the present writ petition. It was pleaded therein that taking into consideration safety, maintenance, operation and planning of infrastructure, it is incumbent that the activities of the respondent GAIL be immediately stopped, as the petitioners have been issued valid licenses by the Director, Town and Country Planning. It was also stated that for re- routing of the gas pipe line, a proposal is enclosed and same be sent to the competent authority nominated by M/s Gas Authority of India Limited. As a follow up of the representation submitted by the petitioners, the Chief Administrator, HUDA (Town Planning Wing), Panchkula, on 8th April, 2009, vide Annexure P-7, forwarded a copy of the representation submitted by the Vice President (Infrastructure) of the Company to the Administrator, HUDA, Gurgaon and District Town Planner, Gurgaon. It is after the petitioners have taken up the case for re-routing of gas pipe line, that they got support from various other developers in Gurgaon city, namely DLF Limited and Bestech Ltd., Orris Limited, Uppal Developers and Luxer Developers. At the initiative of HUDA, the matter was taken up with GAIL for re-routing and a meeting to this effect was held at Manesar Camp, which was attended by the officials of HUDA, Director Town and Country Planning, Haryana, members of GAIL including K.L. Bishnoi competent authority nominated under the 1962 Act. The entire edifice of the petitioners’ case is built around the minutes of the meeting (Annexure P-1) held on 28th May, 2009, which was attended by the various officials, 4 Civil Writ Petition No.16532 of 2009 (O&M) who have been named above. It will be apposite here to reproduce the entire minutes of the meeting: “Minutes of meeting held at Manesar Camp with builders who approached GAIL for re-routing of CJPL pipeline between CH 53 to CH 62. Members presents GAIL Builders HUDA/DTP Mr. M.V.Iyer, DGM (Projects) Mr. U.C. Shrivastava – Vatika Mr. Ved Parkash Mr. A.Kumar CM (PE) Mr. Munish Sharma – Bestech ATP o/o Mr. S.N. Yadav CM (PE) Col. S.K. Deswal DLF DTP (Projects), Gurgaon Mr. K.L. Bishnoi, CA Mr. Kapil Nandu – Bestech Mr. N.L. Arora – Orris Mr. Sunil Srivastava – Uppal Mr. Rakesh Uppal – Luxor Subsequent to meeting held on 25.5.09 at GAIL Corporate office chaired by GM(Project), a follow up meeting held at Manesar Camp on 28.5.2009 for amicably deciding new route agreed to all present members subject to approval of HUDA/DTCP GAIL observed that proposed rerouting involved additional cost to GAIL, the same will be put up to GAIL management to amicably allow the passage of pipeline. It was agreed that a proposal for new corridor will be put up to DTCP within a week time indicating existing route and the proposed route as marked on in map enclosed. For taking the approval of from HUDA/ DTCP Mr.U.C. Shrivastava of Vatika and Mr. Munish Sharma of Bestech and Mr.K.L. Bisnoi, CA GAIL will extend all help. However, if required Mr.Anil Kumar CM(PE) and DGM (Projects) GAIL will Co-ordinate for same.” (Reproduction of Annexure P-1) To pursue the minutes of the meeting held on 28th May, 2009, on the very next day, i.e. 29th May, 2009, M.V. Iyer, DGM (Projects) 5 Civil Writ Petition No.16532 of 2009 (O&M) submitted a proposal (Annexure P-8) to the Director, Town and Country Planning, Haryana, Sector 18, Chandigarh. The subject of Annexure P-8 stated that no objection certificate is required for re-routing of Chainsa – Gurgaon – Jhajjar – Hissar natural gas pipe line of GAIL in Sector 77, 78, 82, 82A, 86, 90, 93 and 95 located at Gurgaon. This letter stated that gas pipe line project is being implemented in time bound manner and is targeted to be completed by November/December, 2009. The completion of the project will facilitate transport of natural gas, a green fuel and same will generate electricity/power to the tune of 7000 MW. It further noticed that all necessary statutory obligations were performed by GAIL by issuing a notification under Section 3(1) and section 6(1) of the 1962 Act. They had also notified the competent authority for awarding compensation for acquisition of right of use and the competent authority is in the process of disbursing compensation to all aggrieved persons. The following portion of the request submitted by the DGM (Projects), GAIL is necessary to be reproduced: “On the directives issued by Chief Administrator HUDA office vide CA letter No.CTP/DTP(N)/KM/2471 dated 8.4.09, addressed to Administrator HUDA and DTP Gurgaon, joint meetings were organized at corporate office of GAIL (India) Limited, chaired by General Manager (Projects) of GAIL. Based on above, another meeting was organized by GAIL on 28.5.2009 with all land license holders issued by DTCP, Haryana which has also been attended by Mr.Ved Prakash, ATP, Town Planning Department Gurgaon. A copy of minutes of meeting (MOM) dated 28.5.2009 is enclosed for ready reference. Location of Natural Gas pipeline with existing and proposed duly marked on 2021 urban complex plan along with road section clearly showing the location of pipeline centre at a depth of 2 meters on the road proposed in drawing is enclosed for ready reference. 6 Civil Writ Petition No.16532 of 2009 (O&M) An advance copy is being sent to the administer HUDA Gurgaon with a request to carry out the feasibility study on the proposal to you at the earliest. It may please be noted that by re-routing the Natural Gas pipeline, an extra length of pipe 1.2 kms is likely to be incurred which GAIL authorities are willing to opt sanction from there top management subjected to NOC/ approvals approved by you. As regards norms of minimum 30 meters width area required, subjected to various technical reasons/justifications, GAIL is willing to accommodate in less width area, if allocated on the proposed re-route proposed/attached. You are requested to give NOC for re-routing of Chainsa – Gurgaon – Jhajjar – Hissar Natural Gas Pipeline of GAIL in Sector 77, 78, 82, 82A, 86 90, 93 and 95 located at Gurgaon, so that pipeline at the earliest. Further to the above, we shall be grateful, if an appointment is given on 3.6.2009 or 4.6.2009 for explaining in person for facilitating speedy progress. Thanking you, Yours faithfully, Sd/- (M.V. Iyer) DGM (Projects)” Along with Annexure P-8, a site plan was attached, which shows already planned gas pipe line and re-routing envisaged. The already planned gas pipe line is shown in the black colour and re-routing in the red colour having various bends. What is the effect of the bends, shall be dealt with later. On July 8, 2009 again, GAIL wrote a letter to the Administrator, HUDA stating that regarding the re-routing, a feasibility report has been submitted and the same be sent forthwith to the Director, Town and Country Planning, Haryana/Chief Administrator HUDA for the necessary approval to facilitate issuance of NOC to M/s Gas Authority of India Limited. This communication was further sent by Director, Town and 7 Civil Writ Petition No.16532 of 2009 (O&M) Country Planning, Haryana, Chandigarh to the District Town Planner, Gurgaon vide Annexure P-10. On 5th August, 2009, District Town Planner, Gurgaon communicated to GAIL that the proposed route of gas pipe line should be through the green belt as shown in the red colour on the copy of master plan and sought alignment to be demarcated on the copy of sajra plan. From the pleadings of the petitioners, precise reason as to how the proposal to re-route the gas pipe line fell, cannot be spelt out. However, the respondent GAIL in its written statement, has stated that due to non-issuance of consent by the State of Haryana, GAIL without waiting further has executed and almost completed the work as per the original route. The stand of the respondent GAIL is that since the grant of NOC was causing huge delay, therefore, to protect their interests they had proceeded ahead with execution of the gas pipe line. Dr. Anmol Rattan Sidhu, appearing for the Union of India, has drawn my attention to Annexure R-1, where it has been stated that GAIL, which was executing agency for Government of India, had furnished irrevocable bank guarantee of Rs.20.00 crores or 2% of the project outlay in favour of the Government encashable in case of delay. Therefore, the stance of the respondents is that to protect their financial and commercial interests, they proceeded with the laying of the gas pipe line. Though the arguments will be noticed later, but to have the continuity of facts, it will be pertinent to notice that during course of arguments, Dr.Anmol Rattan Sidhu had stated that laying of the gas pipe line started from the both ends, therefore, to change the route in the midway was not feasible. This assertion of Dr.Sidhu has been objected by Mr.Ashok Aggarwal, Senior Advocate, appearing for the petitioners, on the ground that this is nowhere part of the pleadings and has been stated only 8 Civil Writ Petition No.16532 of 2009 (O&M) to sway the Court. Annexure R-2 reveals that out of the total length of 70 km of the gas pipe line, all the gas pipe line has been laid except for a length of 1.25 km, which is to be laid at the disputed area. Time to notice the arguments advanced and the rival submission made. It has been urged that Punjab Scheduled Roads and Controlled Area (Restriction of Unregulated Development) Act, 1963 (hereinafter referred to as, ‘the 1963 Act’) received assent of the President on 22nd November, 1963 and was published in the Punjab Government Gazette (Extraordinary) Legislative Supplement on 13th November, 1963. This Act was enacted with the purpose to control haphazard growth of the urban areas and to regulate development activities pertaining to overall growth of urban planning. Whereas, the Petroleum and Minerals Pipelines (Acquisition of Rights of User in Land) Act, 1962 (50 of 1962) was notified on 7th December, 1962. It is submitted that on 11th July, 2006, Government of Haryana had drawn a draft development plan for Gurgaon Manesar Urban Complex and the final development plan 2021 AD for Gurgaon Manesar Urban Complex was notified on 5th February, 2007, much prior to the issuance of notification under Section 3(1) of the 1962 Act. The notification was issued on 1st April, 2008. It is contended that if any gas pipe line is to be laid, it must be in consonance with the master plan published by the State of Haryana. The master plan has been annexed with the present writ petition as Annexure P-12. Mr. Ashok Aggarwal has taken me through the various provisions of the master plan (Annexure P-12). An explanatory note on the final development plan 2021 AD for the controlled area of Gurgaon – Manesar Urban Complex states that Gurgaon – Manesar Urban Complex is known for automobile industries, modern commercial malls, towers of cyber parks, software development, air port and it is situated at a distance 9 Civil Writ Petition No.16532 of 2009 (O&M) of 4 km from the Indira Gandhi International Airport. Due to software development and its close proximity to Delhi, it has also acquired numerous cyber parks. The master plan was envisaged to accommodate 22 lakh of population. The master plan has divided the proposed land use to following 12 categories: Serial No. Land Use Area (in Hectare) 1 Residential 14930 2 Commercial 1404 3 Industrial 5441 4 Transport and Communication 4231 5 Public Utilities 564 6 Public and Semi public use (Institutional) 1630 7 Open Spaces 2675 8 Special Zone 106 9 Defence Land 633 Total Area 31614 10 Special Economic Zone 4570 11 Existing Town 406 12 Village Abadies 428 Grand Total 37069 For overall purposes, it will be necessary to notice that for public utilities, the master plan has reserved 564 hectare of land in Sectors 100, 101 and 107. The definition clause II (m) defines ‘non- conforming use’ and the same reads as under: “(m) ‘Non-conforming use’ in respect of any land or building in a controlled area means the existing use of such land or building which is contrary to the major land use specified for that part of the area in the development plan;” In Appendix A, ‘Public Utility’ includes gas installation and gas work along with water supply installation including treatment plants, drainage and sanitary installation including disposal works and electric power plants substation etc. Mr. Ashok Aggarwal has further referred to Appendix B to state that for public utilities, sites have been earmarked in the sector site 10 Civil Writ Petition No.16532 of 2009 (O&M) plan. A further reference to VII. (v) Open Spaces of Appendix B states that public utility services, like transmission lines, communication lines, water supply lines in the green belts along the scheduled roads and major roads are the sites approved by the Director, Town and Country Planning, Haryana. It is submitted that once the master plan was notified, it was known to public at large, therefore, anybody who has to carry any activity, at first instance has to obtain no objections from the authority envisaged under the 1963 Act or can only use the area which has been specified for the activity to be carried by any concerned. After having advanced his arguments, Mr.Ashok Aggarwal has formulated the following four questions for consideration of the Court: 1. State legislature, having exclusive plenary jurisdiction to enact laws in respect of entries mentioned in the State List (List – II) of Seventh Schedule, whether any enactment by the Union can denude the State of its powers qua the field exclusively occupied by the State. In other words, whether the 1962 Act is in conflict with the 1963 Act, which received assent of the President, or not, especially with reference to Article 254(2) ? 2. Whether the Court giving wider scope and amplitude to the language of the entries in the List – I, II and III, considering the object, pith and substance of the 1963 Act and the 1962 act, reconcile and harmonize the provisions of the two acts or not ? 3. Whether the competent authority under the 1962 Act is bound to act in consonance with the Development Plan (Master Plan) (hereinafter referred to as, ‘the Plan’) under the 1963 Act notified or not ? If so, whether the competent authority 11 Civil Writ Petition No.16532 of 2009 (O&M) was not under the legal obligation to seek relaxation under Section 7(a) of the 1963 Act ? 4. Whether the respondent GAIL, having agreed to re-routing of gas pipe line vide Annexure P-1 and having submitted to the jurisdiction of the Director, Town and Country Planning by filing applications (Annexure P-8 and P-9), wriggle out of the same or by its own conduct suffer from promissory estoppel. Mr. Ashok Aggarwal, Senior Advocate, appearing for the petitioners, while dilating questions No.1 and 2, had referred to entry No.53 of List – I, i.e. Union List of the Seventh Schedule of the Constitution of India. The same reads as under: “53. Regulation and development of oil fields and mineral oil resources; petroleum and petroleum products; other liquids and substances declared by Parliament by law to be dangerously inflammable.” To fortify his arguments, he has also referred to entry No.18 in the List II – State List given in the Seventh Schedule of the Constitution of India. Entry No.18 reads as under: “18. Land, that is to say, right in or over land, land tenures including the relation of landlord and tenant, and the collection of rents; transfer and alienation of agricultural land; land improvement and agricultural loans; colonization.” It will be necessary to notice entry No.35 of List – II, i.e. State List, entries No.20 and 42 of List – III, i.e. Concurrent List of the Seventh Schedule of the Constitution of India. These entries are reproduced as under: “List II – State List 35. Works, lands and buildings vested in or in the possession of the State. 12 Civil Writ Petition No.16532 of 2009 (O&M) XXXX XXXX XXXX XXXX List III – Concurrent List 20. Economic and social planning. 42. Acquisition and requisitioning of property.” It has been contended by counsel for the petitioners that the 1963 Act, which received assent of the President on 22nd November, 1963, was enacted with the object to prevent haphazard and sub-standard development along the scheduled roads and in the controlled area of the State of Haryana. As noticed earlier, the Plan was passed on 5th February, 2007. The area from which the gas pipe line is to pass is owned and possessed by the petitioners. In the Plan, this area is earmarked for residential and commercial colony. Notification (Annexure A) dated 15th September, 2008 under Section 3(1) of the 1962 Act was notified after publication of the Development/Master Plan and issuance of the license to the petitioners for development of residential and commercial colonies. Therefore, act of respondent Union of India to lay gas pipe line without permission entrenches upon the exclusive power of the State to plan, develop houses, buildings and lands. Town and Country Planning is domain of the State Government. Counsel for the petitioners has relied upon ‘Central Coalfields Ltd. v. State of M.P. and others’ 1995 (2) SCC 11 to support above noticed contention. A reference has been made to a Division Bench judgment of this Court rendered in ‘Rajinder Prashad v. State of Haryana’ 1996 AIR (Punjab) 102 to highlight object of the 1963 Act. Para 6 of the judgment reads as under: “6. The Act of 1963 has been enacted by the Legislature of the State of Punjab to prevent haphazard and sub-standard development along scheduled roads and in controlled areas in the State of Punjab. This Act received the assent of the President of India on 22nd November, 1963. 13 Civil Writ Petition No.16532 of 2009 (O&M) After the creation of the State of Haryana, with effect from 1.11.1966, the Act has been made applicable to the State of Haryana. Section 2 of Act contains definitions of various terms and phrases used in the Act. Section 4 of the Act of 1963 speaks of declaration of controlled