Civil Writ Petition No.5889 of 1999 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.5889 of 1999 Date of Decision:19.04.2011 The Public Health Employees Co-operative House Building Society Ltd. ....petitioner Versus Union of India & ors. .....respondents CORAM: HON'BLE MR.JUSTICE JASBIR SINGH HON'BLE MR.JUSTICE RAKESH KUAMR GARG 1.Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Mr.Sarjit Singh, Senior Advocate with Mr.Amit, Advocate for the petitioner Mr.Kamal Sehgal, Additional Advocate General, Haryana *** RAKESH KUMAR GARG,J: By way of this writ petition, the petitioner-Society has challenged notification dated 17.03.1994 issued under the provisions of Works of Defence Act, 1903(in short 'the Act of 1903'), whereby it has been restrained from raising construction in an area upto 100 mtrs.from the boundary of 11-Field Ordinance Depot. As per the averments, the petitioner-Society purchased 10 acres of land in the revenue estate of Bathinda and decided to carve out plots for its members. The Society also deposited a sum of ` 8 lacs as bank guarantee for development charges. The Society was granted No Objection Certificate in the year 1988 by the competent authority. A licence was also granted by the Department of Housing and Urban Development for establishment of a colony to the Society on 22.04.1988. Civil Writ Petition No.5889 of 1999 2 It is the case of the petitioner that the society was not permitted to raise construction by the respondent authorities on the ground that construction is prohibited within 100 mtrs.of the boundary wall of the 11-Field Ordinance Depot. Faced with this situation, learned counsel for the petitioner-Society filed Civil Writ Petition No.13323 of 1991 before this Court which was disposed of vide judgement dated 24.09.1992, which reads as under: Present: Mr.R.K.Battas,Advocate. Mr.A.S.Tewatia, Advocate. ..... Costs paid. In view of the written statement filed to the effect that neither the land has been acquired nor any provision of law has been pointed out under which the petitioners can be deprived of their land from using the same as they wish to use, its. At this stage, it has been pointed out that the respondents can debar the petitioners from using the land under Section 3 of the works of Defence Act 1983, but the same can be done only after an award has been pronounced. Undisputedly no award under Section 6 of the Act has been pronounced till today. Keeping in view the peculiar facts and circumstances of the case i.e. the respondents have built two posts of Guards for security reasons which is a sensitive subject, we would not like to go into material facts of the nature or the necessity of the Defence Department to Civil Writ Petition No.5889 of 1999 3 keep 100 yards area as no man land, in exercise of writ jurisdiction. However, we grant the respondents three months' time to proceed and pronounce the award in accordance with law. If no award is pronounced within three months. The petitioners will be at liberty to use their land as they wish and the respondents shall be restrained from interfering in the possession of the petitioners except in due course of law. The writ petition stands disposed of accordingly.” The respondents issued impugned notification dated 17.03.1994 under Section 3 of the Act of 1903 prohibiting construction within a distance of 100 mtrs.from the area of 11-Field Ordinance Depot, Bathinda, as per the schedule given in the said notification(Annexure P-5). Since the directions issued by this Court were not complied with, petitioner- Society filed COCP No.153 of 1993 in this Court which was disposed of by passing the following order on 28.03.1995: “Mr. Bhanot has placed on record Award dated 10.3.1995 which has been passed in the case of the petitioner. In view of this Award, the present contempt petition has become infructuous. The contempt petition has become infructuous. The contempt petition was filed in the year 1993 and it is only after such a long delay that Award has been passed. Technically speaking respondents have disobeyed the order passed in Civil Writ Petition No. 13323 of 1991 Civil Writ Petition No.5889 of 1999 4 but considering that the Award has now been passed, it would not serve any purpose if the respondents are proceeded against under the provisions of the contempt of Courts Act. Petitioner, if so advised, shall be entitled to challenge the Award on all possible grounds available to it including that the Award is not inconformity with the order passed in the Civil Writ Pettiion. In the facts and circumstances of the case, I am of the view that the petitioner shall be entitled to costs which are quantified at Rs. 5,000/-. Costs shall be recoverable from Union of India, respondent No. 1 in the writ petition No. 13323 of 1993. 28.3.1995 Sd/- V.K. Jhanji. Judge.” The present petition has been filed by the petitioner- Society challenging the aforesaid notification(P-5) on the ground that a polytechnic institute is in existence adjacent to the boundary of 11-Field Ordinance Depot, wherein the students reside and the construction has been raised and if the said institute can be allowed to exist there was absolutely no basis for prohibiting the petitioner-Society from raising construction on plots by its members. Further challenge has been made to the aforesaid notification on the ground that the petitioner-Society had been granted licence for construction of plots by a competent authority and therefore its members have a right to use its property in a manner it likes and thus their right to enjoy the property has been infringed and, thus the Civil Writ Petition No.5889 of 1999 5 notification is liable to be quashed. Further averment was made in the writ petition that the petitioner-Society was not being paid the compensation as determined by the Award dated 10.03.1995. In response to the notice issued, the respondents filed reply wherein it has been averred that the impugned notification has been issued under Section 3(1) of the Act of 1903 which empowers the defence authorities to impose restrictions as provided under Section 7-B of the aforesaid Act, and the aforesaid restrictions have been imposed to reduce security hazards to defence installations in the area. It was also stated that Government Polytechnic College was already existing at the time of raising of 11-Field Ordinance Depot and subsequently on completion of raising of the said depot, provisions of Section 3(i) of the Act were invoked imposing restrictions for new constructions either temporary or permanent and accordingly petitioner- Society was restricted from raising construction either temporary or permanent within 100 mtrs. of the depot perimeter/fencing/wall. It may be relevant to point out that vide order dated 07.09.2009 an amount of `13,68,036/- was paid to the petitioner-Society as part payment of compensation and further a sum of ` 6,34,536/- were paid towards full and final settlement of account up to date on 12.01.2010 and in fact no grievance has been raised by the counsel for the petitioner with regard to payment of compensation as per the Award dated 10.03.1995. Thus, it is not in dispute that on the basis of the Award dated 10.03.1995 passed by the respondents, the petitioner-Society is being paid the compensation for restricting the use of enjoyment of its land. In fact, the petitioner-Society has accepted the aforesaid Award and received the compensation as aforesaid, and has challenged the award only to the extent of enhancing the compensation, further. Civil Writ Petition No.5889 of 1999 6 Learned counsel appearing on behalf of the petitioner- Society has vehemently argued that the impugned notification is liable to be quashed as the same infringes upon the rights of the society to use its property in a manner it likes, whereas, no restriction has been imposed in the adjoining polytechnic institute and thus the petitioner-Society has been treated with hostile discrimination. The arguments raised by learned counsel for the petitioner-Society is without any merit. Undisputedly, the polytechnic institute was already existing when the 11-Field Ordinance Depot was raised. Moreover, the impugned notification has been issued by the respondent-authorities to reduce the security hazards to the defence installations. The aforesaid stand taken by the respondents could not be disputed by learned counsel for the petitioner in any manner. Not only this, the power of the respondent-authorities under Section 3 of the Act of 1903 to impose such restrictions as imposed upon the petitioner-Society vide impugned notification is also not disputed. In fact, there is no challenge to the aforesaid provisions of the Act and the power of the authorities to issue such directions. In this view of the matter, no fault can be found with the impugned notification. Faced with this situation, learned counsel for the petitioner-Society has referred to para No.8 of the writ petition, wherein it has been specifically averred that the Field Ordinance Depot of the respondents was raised at the site as a temporary measure and they had given an understanding to the petitioner that the same shall be shifted to some other place. He referred to para No.8 of the written statement to show that the aforesaid averments have not been disputed and, thus, according to the learned counsel for the petitioner-Society, the respondents were duty bound to shift the Ordinance Depot from its present place to some other suitable place so that the restrictions imposed upon the Civil Writ Petition No.5889 of 1999 7 petitioner-Society could be withdrawn. However, learned counsel appearing on behalf of the respondents has refuted the aforesaid argument by referring to sub-ground(iii) of para No.9 of the written statement, wherein it has been specifically mentioned that the Ordinance Depot is to stay at the existing place and is not to be shifted. It is not in dispute that it is for the respondent authorities to satisfy itself as to requirement of its necessity, to impose restrictions on use and enjoyment of the land in the vicinity of any work of defence or any site or other restrictions as may be declared under Section 7. In the case of M/s Travels Star Hotels(India) Ltd.vs.Union of India 2009(4) RCR(Civil)487, a Division Bench of this Court while deciding a somewhat similar situation has observed as under: “It is clear from provisions of section 3 read with section 7 of the Act that on requisite satisfaction being arrived at as to requirement of necessity to impose restrictions on use and enjoyment of the land in the vicinity of any work of defence or of any site or other restrictions as may be declared under Section 7, notification can be issued which is conclusive proof of necessity to keep the land free from buildings and obstructions and to bring into force the restrictions stipulated under Section 7 of the Act. The provisions are not under challenge. The scheme of the said provisions is to bring into force the restrictions forthwith. Enforcement of such restrictions is not dependent on making of any award or making of compensation. Subsequent inaction for failure of duty to determine and pay Civil Writ Petition No.5889 of 1999 8 compensation does not have the effect of annulling the restriction which comes into force as soon as the notification is published. Only right which may survive on account of non compliance of provisions of Section 9 or 12 of the Act, is to make a claim for the compensation. In case of gross delay, if an aggrieved party approaches the Court, the Court can mould the relief to do complete justice. A citizen cannot, however, treat the restrictions placed to be non est nor the notification be lapsed.” In view of the aforesaid settled proposition of law and the above discussion, the arguments raised by learned counsel for the petitioner, is not tenable. No other point is urged. No merits. Dismissed. (JASBIR SINGH) (RAKESH KUMAR GARG) JUDGE JUDGE 19.04.2011 neenu