CWP No. 9917 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No. 9917 of 2008 Date of decision: 11.11.2011 The Defence Colony Residents Society (Registered), Jalandhar ......PETITIONER VERSUS State of Punjab and others ….. RESPONDENTS CORAM:HON’BLE MR.JUSTICE RANJAN GOGOI, CHIEF JUSTICE HON’BLE MR. JUSTICE AUGUSTINE GEORGE MASIH Present: Mr. Rohit Sud, Advocate, for the petitioner. Mr. R.S. Khosla, Addl. A.G. Punjab. Mr. Amit Sethi, Advocate, for respondents No. 2 to 4. Mr. Rajiv Atma Ram, Sr. Advocate, with Mr. Saurabh Arora, Advocate, for respondent No. 5. *** AUGUSTINE GEORGE MASIH, J. This Public Interest Litigation has been preferred by the residents of the Defence Colony Area of Jalandhar through the Defence Colony Residents Society (Registered) alleging that the sanction has been granted by respondents No. 1 to 4 to M/s Radhey CWP No. 9917 of 2008 2 Buildwell Private Limited-respondent No. 5 to construct a multiplex building/shopping mall on Cantt. Road, Jalandhar, a residential area, which is surrounded by residential houses and is not permissible. It is the contention of the petitioners that the sanction, which has been granted to respondent No. 5, could not be issued despite it being on a non-scheme area since this area is primarily a residential area and across the Cantt. Road, also it is only an institutional area where no commercial activity is being carried out nor can it be permitted. The Cantt. Road has not been declared a commercial road and, therefore, the sanction granted cannot be sustained. M/s Radhey Buildwell Private Limited-Respondent No. 5, vide application No. 1137 dated 19.02.2007, applied for sanction of building plan on the plot owned by it for setting up a shopping mall. On consideration of the application of respondent No. 5, the same was recommended to the Government for technical approval on 20.03.2007. The same was considered by the Chief Town Planner, Department of Local Government and vide letter dated 12.08.2007 addressed to the Commissioner, Municipal Corporation, Jalandhar- respondent No. 2 conveyed that it is not advisable to allow the proposed commercial construction on the site in question as the site was adjoining to the Defence Colony, which is a Development Scheme and the houses on the road are residential and no commercial construction has been approved on this stretch of road. This communication, on receipt by the Municipal Corporation, CWP No. 9917 of 2008 3 Jalandhar, was forwarded to respondent No. 5 by the Municipal Town Planner who conveyed that the approval for commercial activity cannot be granted on the plot. On receipt of this communication from the Municipal Corporation, Jalandhar, respondent No. 5 submitted a letter dated 23.08.2007 stating therein that the proposed commercial complex is situated on Cantt. Road, which is a non-scheme area with other institutional buildings like college, school buildings existing in the area. The back side of the site is adjoining defence colony area, which does not face it and there is no direct approach to the site from the defence colony side. On this representation, the comments were sought by the Chief Town Planner, Department of Local Government, Punjab, vide his letter dated 06.09.2007, from the Municipal Corporation, Jalandhar. In response thereto, the Joint Commissioner, Municipal Corporation, Jalandhar, vide his letter dated 19.09.2007, confirmed the facts as stated by respondent No. 3 that the plot does not fall under any scheme and thus, it is in a non- scheme area. No entry or exit of the site is shown in the map towards the road on the defence colony plots and the approach of the site is shown towards the Cantt. Road side. Thereafter, the Chief Town Planner, Department of Local Government, Punjab, addressed a letter dated 28.11.2007 to the Commissioner, Municipal Corporation, Jalandhar requesting therein that a specific report be sent with clear-cut recommendations, whether commercial building on the site in question should be permitted or not as per ground CWP No. 9917 of 2008 4 situation so that the matter could be reconsidered by the Government. In response to this letter, reply was sent the same day by the Commissioner, Municipal Corporation, Jalandhar, giving the earlier details and further stating that there is no hesitation to pass the map as commercial. On the basis of this response, technical clearance was granted by the Government on 07.12.2007 and relying thereon, the Sub-Committee of the Municipal Corporation, Jalandhar, considered the application dated 19.02.2007 submitted by respondent No. 5 for approval of the building plan and granted sanction on 14.02.2008. Letter dated 15.02.2008 communicating the sanction along with the terms and conditions, which respondent No. 5 was required to comply with, was issued by the Commissioner, Municipal Corporation, Jalandhar. The petitioner, in this writ petition, has proceeded on the assumption that letter dated 28.11.2007 addressed by the Commissioner, Municipal Corporation, Jalandhar, to the Chief Town Planner, Department of Local Government, Punjab, was the sanction granted to respondent No. 5 and, therefore, challenged the same through the present writ petition. It was alleged that the construction had been started by respondent No. 5 and, therefore, prayed for the stay. The case came up for hearing before this Court on 30.05.2008 when this Court directed respondent No. 5 not to effect construction on the site in question and respondents No. 1 to 4 to ensure that no such construction activity is carried out on the site in question. CWP No. 9917 of 2008 5 Reply to the writ petition has been filed by the respondents. Respondent No. 1-State of Punjab has submitted in its reply that there are two types of areas/colonies within the municipal boundary; (a) the colonies/areas, which have been developed under any law of the State such as Development Scheme framed under the Punjab Town Improvement Act, 1922, Urban Estates developed under the Punjab Urban Estates (Development and Regulation) Act, 1964, Colonies developed under the License given under Punjab Apartments and Property Regulation Act, 1995, Focal Points under the Punjab State Industrial Export Corporation and the Town Planning and Building Schemes framed under Section 275 of the Punjab Municipal Corporation Act, 1976, are known as Scheme Areas and (b) the other areas are termed as Non-Scheme Areas. In the Scheme Areas, land use of the plots/lands is duly defined while sanctioning the relevant scheme and erection/re-erection of buildings in such scheme areas is regulated in accordance with the Schedule of Clauses of the concerned sanctioned scheme. The erection/re- erection of the buildings in the areas other than the Scheme Areas is regulated as per the provisions of the Municipal Building Bye-laws regarding residential, commercial, industrial or institutional buildings. Since the site in question falls in a non-scheme area, Municipal Building Bye-laws would be applicable. Since respondent No. 5 fulfilled the required Bye-Laws, sanction has been granted by the Government to the building plan for commercial purposes. Earlier since the building was shown to be surrounded by the residential CWP No. 9917 of 2008 6 buildings and was adjacent to the Defence Colony, which was developed under the Improvement Trust Scheme, Government deemed it proper to advise, vide letter dated 01.08.2007, not to sanction the commercial plan. However, subsequently when it was brought to the notice of the Government that it is a non-scheme area and was situated on 160' wide main road called the Cantt. Road and there were other institutional and commercial buildings existing on the road, technical clearance was granted by the Government vide letter dated 07.12.2007 subject to compliance of the parameters mentioned therein. It has further been pleaded that the petitioner has not challenged the letter dated 15.02.2008 issued by the Commissioner, Municipal Corporation, Jalandhar, therefore, the writ petition deserved to be dismissed. Respondent No. 4-Municipal Town Planner, Jalandhar has almost towed the same line as respondent No. 1 except stating that the site in question is situated on the Cantt. Road, which is a busy main street of the town, upon which many institutional and commercial buildings are situated such as Khalsa College for Girls, Atwal House Market, St. Joseph's School, North India Section of 7th Adventists School with structure for living quarters and Ruby Nelson Memorial Hospital etc. Respondent No. 1, in its reply, has pleaded that the petition is not within the ambit of the Public Interest Litigation and the President of the Society has sought to settle his personal vendata against respondent No. 5. The plot in dispute was earlier a factory of CWP No. 9917 of 2008 7 one Gopal Singh. It being an industrial plot, its user can be easily changed into commercial. There is no residential house in front of the site of respondent No. 5 and across the road, there are colleges, hospitals and other institutional establishments. It is denied that the plot of the petitioner is situated within the vicinity of the residential area. The contentions, as raised by respondent No. 1, have also been pleaded and put forth by respondent No. 5 in its reply. When the case came up for hearing before this Court on 14.11.2008, upon hearing the learned counsel for the parties, an agreed order was passed by the Court appointing Chief Judicial Magistrate, Jalandhar, as Commissioner, to be assisted by the District Town Planner, Jalandhar to submit a report after proper site inspection on Cantonment Road, Jalandhar, indicating whether and if so the kind of establishments that exist on either side of the said road. This was done in order to facilitate proper adjudication of the matter as to whether the area is residential or commercial or non- scheme mixed use area. The Commissioner submitted his report on 15.12.2008. Paras 3 and 4 of the said report read as follows:- “3. It is hereby submitted that the site in dispute which is situated on the Cantonment Road, Jalandhar, towards the Western side of the site, there is residential house bearing No. 17 and the said house, as per respectables, it was that of one Mangat Singh and CWP No. 9917 of 2008 8 towards the Eastern side, there is a vacant plot. In front of the site in question, a road i.e. towards North is passing and on the north side of the road, there is a small park and the boundary wall of Layallpur Khalsa College for Women is abutting the said small park. K.C.L. Institute of Law has been newly constructed and the building is five storeyed which is by the side of Layallpur Khalsa College for Women towards the east of the said college. The residential houses have been constructed towards the southern side of the site in question and the people are residing therein. 4. Towards the Southern side of the property in question, a residential house No. 18 of the Defence Colony has been constructed. After seeing the site and the establishments on the either side of the property in question, it has been found that the residential houses have been constructed towards the western side and on the southern side of the site in question, whereas on the eastern side, there was a vacant plot. Myself and the District Town Planner along with respectables have seen the establishment on road which is passing in front of the property in question and it was found that the residential houses which are situated in the Defence Colony have been constructed on the side on which the property in question is situated, whereas towards the northern side after K.C.L. Institute of Law, Ruby Nelson Memorial CWP No. 9917 of 2008 9 Hospital has been constructed and thereafter Church and School namely North India Section of 7th Adventists with structure for living quarters, whereas after the residential houses in the Defence Colony abutting the main road on which the property in question is situated, a building of St. Joseph's Convent School is existing.” To this report, objections have been filed through additional affidavit on 17.02.2009 by respondent No. 5, wherein it has been alleged that the Commissioner did not intimate respondent No. 5 as to the date/time of the said visit. It was done in the presence of the residents of the Defence Colony alone. The report does not mention the shops, which are available and functioning on Cantt. Road even though in the site plan attached with the report, the shops are shown. On the northern side of the site, M/s K.C.L. Institute of Law, which is a newly constructed five storeyed building by the side of Layyalpur Khalsa College for Women, has been shown. Photographs have been attached with the affidavit to show other commercial activities, which are being carried out in the residential area of the colony and in Atwal Colony (Saundh Complex). Site plan has also been attached with the affidavit. In response to this affidavit, petitioner has also filed an affidavit dated 18.03.2007, wherein it has been mentioned that M/s K.C.L. Institute of Law has been constructed in the existing premises of Khalsa College for Women, which has a common entrance from CWP No. 9917 of 2008 10 the G.T. Road. Besides the commercial activities, photographs have been attached with the affidavit. They are inside the Atwal house locality and not of the Cantt. Road. The other commercial activities are not sanctioned by the Municipal Corporation and are being run illegally. As regards the shop located on the Garha Road, which is a declared commercial road, no objection can be raised. Apart therefrom, the booths, which have been mentioned in the Defence Colony market, are Government approved booths and there are few small shops, Doctors' clinics, which have been shown in the photographs are being run illegally in the residential colony. An affidavit dated 04.05.2009 has also been filed by respondent No. 5 stating therein that the site plan, which was prepared in the year 1963 for Development Scheme of 50 Acres on Cantt Road, Jalandhar (now called Defence Colony) would show that the site in dispute was a factory of Gopal Singh and rest of the land was agricultural land. Layout plan has also been placed on record of the said scheme where the site has been shown as a factory. To which it has been responded by the petitioner vide affidavit dated 20.08.2009 that as per the revenue records of the years 2005 to 2008, the land has been shown as gair abadi land, which cannot be said to be now an industrial area and since the area now is purely a residential and an institutional area, it cannot be converted into the commercial area. Further, Cantt Road has not been declared a commercial road. Reference has been made to the affidavit dated 18.03.2009 filed in this Court by Sh. Bhajan Singh, PSS-I, Under CWP No. 9917 of 2008 11 Secretary, Department of Local Government, Punjab, Chandigarh, according to which, fourteen roads of Jalandhar have been declared as commercial, in which the present road does not find mention. We have heard counsel for the parties, who made their submissions on the basis of the respective pleadings of the parties they represent, referred to above and with their able assistance have gone through the records of the case. Dealing with the preliminary objection, which has been raised by the respondents that it is not a public interest litigation and which has been impugned in the present writ petition, is only an inter- departmental communication, wherein the Commissioner, Municipal Corporation, Jalandhar has, vide his letter dated 28.11.2007, informed the Chief Town Planner, Department of Local Government, Punjab, Chandigarh that there is no hesitation to pass the map as commercial, would not be maintainable and that the sanction letter dated 15.02.2008 communicated by the Commissioner, Municipal Corporation, Jalandhar, has not been impugned, needs to be dealt with by only stating that in a Public Interest Litigation, such technical objections cannot be sustained and accepted. The primary thrust and emphasis of the Court, while dealing with such like cases, is to see that justice is done to all and the basic purpose is to see that by some act or conduct of a person/authority/agency, the public purpose and interest is not defeated/jeopardized. This objection of the respondents does not carry weight and is thus, rejected. CWP No. 9917 of 2008 12 The question, which needs to be answered in this case is, whether a site, which is surrounded by residential houses on their sides, making it primarily a residential area, situated on a road which is not declared as a commercial road and across the road the area is institutional only, could be granted permission to raise a building, which is purely commercial in nature especially when no other commercial activity is being carried out in the area or earlier permitted ? It is apparent from the report of the Local Commissioner that no commercial activity is being carried out in the locality. As per the site plan attached with the report, the side of the road, on which the site in dispute is situated, is purely residential except for one school, which cannot be termed as commercial. On the opposite side of the road also, there is no commercial activity and the area is institutional in nature as there is a College, a Law Institute, a School and a Charitable Hospital. The objection raised by respondent No. 5 to the report of the Local Commissioner, wherein it has been stated that commercial activities are being carried out in the area, to which it has been responded that the said activities are being carried out illegally without the permission of the Municipal Corporation and small booths, which are in the Defence Colony, are approved by the Government and none of them opens on the Cantt Road to which there is no rebuttal. If some illegal activities are being carried out in the area/road, without the sanction of law/authorities, that cannot be CWP No. 9917 of 2008 13 made the basis to claim the same benefit by any party. Equity and discrimination cannot be pleaded and claimed in derogance to law. What was required to be submitted by the Local Commissioner was the report of the activities being carried out on the Cantt. Road., which has been done. The report submitted by the Commissioner is in accordance with and in compliance with the order passed by this Court. In this report it has been stated that no commercial activity was being carried out on the Cantt Road, which is clear also from the site plan attached and thus, this report is accepted. It is not in dispute that wherever the Municipal Corporation and the Government found that on a particular road, commercial activity is being carried out or the area is conducive to the said purpose, that road has been declared a Commercial Road. In Jalandhar, 14 such roads were identified and declared as commercial but Cantt Road does not find mention therein. In such a situation, it cannot be said that respondent No. 5 could have been granted the permission to raise a commercial building in an area, which is primarily residential in nature with a few educational and charitable institutions running near it and that too across the road. It is not in dispute, as is apparent from the site plans placed on record that the area and the road, on which the site in dispute is in existence, is primarily a residential area and obviously, St. Joseph's School, which falls on the side on which the site in dispute is in existence, blends easily with the residential area. The commercial area and commercial activities are totally different and do CWP No. 9917 of 2008 14 not go in tandem with the residential area as the requirements and the effects thereof are totally different. Commercial activities and especially the shopping mall has the potential of creating nuisance if permitted in a residential area, which primarily is a calm and quite place to live in and the purpose is quite different. The serenity of the area is totally disturbed. If such like activities are permitted to be carried out, the basic concept of planning and planned development would be defeated and would create a situation, which would be chaotic. The Court cannot be a party to such chaos and confusion. By now it is well established and accepted norm of planning and planned development that residential, commercial, institutional and industrial sectors/areas should be separately culled out and situated in such a manner that one does not interfere with the other rather each complementing the other in a manner, which would create an atmosphere conducive to the growth and systematic progress of the society, which would be hampered if action of the authorities, as in the present case, is approved. In view of the above, the present petition is allowed. The approval granted to the building plan of respondent No. 5 by the Municipal Corporation, Jalandhar, which has been communicated vide letter dated 15.02.2008, stands quashed. During the course of hearing, this Court had put a question to the respondents as to why different norms have been prescribed for the scheme areas and non-scheme areas with regard to the commercial and residential areas within the municipal limits. CWP No. 9917 of 2008 15 In response thereto, an affidavit dated 18.03.2009 has been filed by the State, wherein it has been mentioned that the Department of Local Government has prepared a proposal for amendment in the norms of commercial buildings and the same have been circulated to the Commissioner of the Municipal Corporations and Regional Deputy Directors for seeking their comments on 29.12.2008 but no decision thereon has been taken as yet. We are of the view that the said proposal with regard to the amendment of the Bye-Laws of the Municipal Corporation needs to be finalized at the earliest, if not done till date and accordingly, direction is issued to do the same within a period of three months. An affidavit dated 30.09.2010 of Sh. H.S.Nanda, IAS, Special Secretary, Local Government Department, Punjab, states that the Local Government decided to make certain amendments in the existing building Bye-Laws and after incorporating the same, prepared a composite Building Bye-Laws called as “Punjab Model Building Bye-Laws, 2010” and circulated to all Urban Local Bodies vide Memo dated 23.04.2010 for taking further necessary action for notification of these Bye-Laws. The relevant extract regarding norms of construction of commercial buildings and Multiplexes in Punjab Model Building Bye-Laws, 2010 was also placed as Annexues R/3 and R/4 respectively along with the said affidavit. Direction is issued to the Urban Local Bodies of Punjab State to take further necessary action for notification of these Bye- Laws, if already not done, within a period of three months. CWP No. 9917 of 2008 16 As is apparent from the affidavits filed by the petitioner and respondent No. 5, there are some commercial activities being carried out in the area in the form of small shops, clinics of doctors etc. in the houses illegally. Direction is issued to the Municipal Commissioner, Municipal Corporation, Jalandhar to look into the same and take action in accordance with law to stop such illegal activities. This exercise be completed within a period of six months. The above directions be carried out within the time stipulated therein from the date of receipt of certified copy of this order. ( RANJAN GOGOI ) (AUGUSTINE GEORGE MASIH ) CHIEF JUSTICE JUDGE November 11, 2011 pj