CWP No.6646 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.6646 of 2009 Date of Decision:- February 25, 2010 Harcharan Singh Bhatti ...Petitioner VERSUS State of Punjab and Another. ...Respondents CORAM: HON'BLE MR. JUSTICE M.M.KUMAR HON'BLE MR. JUSTICE JITENDRA CHAUHAN Present: Mr.R.L.Sharma, Advocate for the petitioner. Mr.Suvir Sehgal, Addl. AG, Punjab for respondent No.1. Mr.Anand Chhibar, Advocate for respondent No.2. 1. To be referred to the Reporter or not? Yes 2. Whether the judgment should be reported in the Digest? Yes ***** M.M.KUMAR, J. The instant petition filed under Article 226 is directed against order dated 29.1.2009 (Annexure P-8) passed by the Executive Officer, Amritsar Improvement Trust-respondent No.2 (for brevity 'Improvement Trust'). The order has been passed in pursuance of direction issued by a Division Bench of this Court on 5.11.2008 in CWP No.18952 of 2008. Brief facts of the case which are necessary for disposal of the instant petition are that the Improvement Trust issued a notification under Section 36 of the Punjab Town Improvement Act, 1922 (for brevity 'the Act') for execution of a scheme known as 340 Acres Development CWP No.6646 of 2009 -2- Scheme. The notification was published on 23.12.1994 in the Punjabi Daily-'Ajit'. The Improvement Trust had invited objection to the Scheme from the general public within a period of 30 days. The claim of the petitioner is that there is a cluster of factories-cum-residences, showrooms on both sides of the G.T. Road where the scheme is to be executed. A total 1400 feet front area is adjacent to the G.T.Road which include the area belonging to the petitioner. Accordingly, the petitioner filed objection on 23.12.1999 along with many others before the Improvement Trust. The objections were considered on 27.4.1995 and it was decided by the Improvement Trust that the land where buildings are situated along side the G.T. Road, would be adjusted/accommodated in the layout plan. It was further stated that the development and adjustment charges were to be recovered from the occupiers/owners of the building. The aforesaid decision of the Improvement Trust constituted Resolution No.210. Thereafter, the scheme was sent to the Government for sanction, which was accorded on 17.1.1996. The land belonging to the petitioner was excluded from the acquisition. However, the matter was again considered for exemption of the built up building/factories on the G.T. Road by the Improvement Trust in its meeting held on 5.5.1998 vide Resolution No.221. The Engineering Department of the Improvement Trust made a proposal that possession of the building and the built up portion was not required for the execution of the Scheme as the cost of the built up portion was more than Rs.3 crores. However, the Improvement Trust did not take any decision and deferred the same with the observations that details of the built up area be made available. The matter for release of built up area was again considered by the Improvement Trust in its meeting held on 30.3.2000 (Annexure P-1) It was decided that the built up portion was not to be exempted. The aforesaid resolution was kept in abeyance vide fresh Resolution No.67 CWP No.6646 of 2009 -3- passed on 16.5.2000. The Improvement Trust in its meeting held on 20.12.2000 (Annexure P-2) decided that the built up portion should be demolished and it should be developed as a commercial shopping complex to improve the financial health of the Improvement Trust. When the possession of the petitioner was threatened, he filed CWP No.4678 of 2001. The petitioner sought quashing of various notifications and Resolutions and placed reliance on the policy of the State Government dated 18.9.1976. Accordingly, Division Bench of this Court by a detailed order dated 25.2.2002 held as under:- “The matter was thereafter forwarded to the Government and vide notification dated 17.1.1996 (copy Annexure P-9) the State Government accepted the recommendations made by the Improvement Trust leading to the exemption of the petitioners property from acquisition and it was clearly reflected in the layout plan appended with the notification that the recommendations had been duly accepted. It appears that subsequently there was a rethinking on the part of the Improvement Trust and vide Resolution No. 221 dated 5.5.1998, it was resolved that the matter be again placed before the Trust after getting the full details of the layout plans from the Divisional Town Planner showing the location of the exempted area. The Improvement Trust, thereafter, directed the preparation of four alternative layout plans which to be prepared by the Divisional Town Planner, Amritsar and referred to the improvement Trust, vide Annexure P/17. In alternative (i) of the proposals, the land belonging to the petitioners was once again to be exempted but the other three alternatives showed that the petitioners' CWP No.6646 of 2009 -4- land too was needed for acquisition in execution of the proposals. After considering the plans aforesaid, the Improvement Trust in its meeting held on 30.3.2000, passed the following Resolution:- “After considering the entire matter, it has been unanimously decided that the buildings falling in the area of the development scheme cannot be exempted/abandoned from the scheme in view of the provisions of the Punjab Town Improvement Act and the polices guidelines issued by the Govt. from time to time. Therefore, out of the four proposals received form the Divisional Town Planner, layout plan Drawing No. DTP (A) 51/2000 dated 16.03.2000 (Alternative No. 4) is approved unanimously. This layout plan be got sanctioned from the Govt. under Section 43 of the Punjab Town Improvement Act, 1922.” The proposals made vide Annexure P-17, were confirmed by the Trust in its meeting held on 20.12.2000 and were recorded the minutes as per Annexure P-21 of even date. The primary grouse of the petitioners is based on the interpretation of Section 43 of the Act. It has been urged that once a scheme had been sanctioned by the State Government, no modification could be made thereafter without the prior sanction of the State Government and as the exemption granted to the petitioners at the initial stage had been approved by the State Government, the fresh proposals for the acquisition of the petitioners land was wholly unjustified. ---- ---- ---- ----. It is in this CWP No.6646 of 2009 -5- situation that the main argument arises. Section 43 of the Act is reproduced below:- “Alteration of scheme after sanction – A scheme under this Act may be altered by the trust at any time with the prior approval of the Government between its sanction by the State Government and its execution.” The terminology of the aforesaid section is clear and categoric. It postulates that if a scheme has been sanctioned by the State Government, it can only be altered with the prior approval of the State Government and that too within a certain time schedule. Admittedly, the prior approval of the State Government was not taken before the scheme was altered to the petitioner's detriment, although the matter is said to be pending for re-consideration before the Chief Town Planner. In this view of the matter, the two impugned orders (Annexures P-17 and P-21) cannot be sustained. These are accordingly quashed. The respondent-Trust would however be at liberty to take further steps with regard to the petitioner's property, in accordance with law.” (Emphasis supplied) Despite the aforesaid direction issued by this Court, the Improvement Trust had not issued no objection certificate/exemption certificate in respect of his land comprised in Khasra No.3215/1154 and 3213/1153 situated in village Sultanwind. He again filed CWP No.18952 of 2008 which was disposed of by the Division Bench of this court on 5.11.2008 with a direction to the respondent to take cognizance of the legal notice served by the petitioner and to pass a speaking order on the same. It is pursuant to the aforesaid direction that speaking order dated CWP No.6646 of 2009 -6- 29.1.2009 has been passed, which is the subject matter of challenge in the instant proceeding. The Executive Officers of the Improvement Trust has rejected the claim made by the petitioner holding that the decision was taken by it on 30.3.2000 for demolishing the built up area and construction of showroom, commercial shopping complex etc. on that land. It was highlighted that petitioner has 'C' class construction as per the survey plan of the area. The same could not have been exempted as it is not covered by the policy of the Government dated 8.9.1976, which provided for exempting only 'A' class construction. We have heard the learned counsel at a considerable length. It has come on record that the petitioner had earlier filed CWP No.4678 of 2001, where the Resolution No.57 dated 30.3.2000 and Resolution No.292 dated 20.12.2000 were quashed by a Division Bench of this Court. A categorical finding has been recorded by the Division Bench that after the scheme has been sanctioned under Section 42 of the Act on 17.1.1996, no modification could have been made thereafter by the Improvement Trust without the prior sanction of the State Government. It was further found that exemption granted to the petitioner at the initial stage had been approved by the State Government and the fresh proposal seeking acquisition of the petitioner's land was wholly unjustified. The aforesaid view of the Division Bench is discernable from the last 4-5 paras of the judgment dated 25.2.2002 which is guided in preceding paras holding that the stand of respondent was wholly untenable. The scheme had been recommended by the Improvement Trust, which was duly approved by the State Government on 17.1.1996. The Division Bench also held that the mere fact that the word adjustment or accommodation has been used instead the word exemption, was not to make any difference. It was not disputed before the Division Bench that the property belonging to the petitioner had been left outside the CWP No.6646 of 2009 -7- acquisition by the State Government on the recommendation made by the Improvement Trust. It is in the aforesaid circumstances that the Division Bench considered the mandate of Section 43 of the Act and concluded that prior approval of the State Government was not taken before the scheme was altered to the detriment of the petitioner. Accordingly, it set aside the Resolution dated 30.3.2000 and 20.12.2000 (Annexure P-1 and P-2 respectively). The impugned order has rehabilitated the same stand of the Improvement Trust which stood rejected by the Division Bench. Such a course is wholly impermissible. The view of the Division Bench itself is sufficient to quash the impugned order dated 29.1.2009 (Annexure P-8). In addition, we find that the stand taken by the respondent No.2 concerning the construction is wholly untenable because the Hon'ble Supreme Court in the Case of Sube Singh Vs. State of Haryana (2001) 7 SCC 545 has taken the view that classification of construction in 'A', 'B', 'C' is wholly arbitrary and is not sustainable. The aforesaid view has come up for consideration again before the Hon'ble Supreme Court in the case of Hari Ram and another Vs. The State of Haryana and others (Civil Appeal No.5440 of 2000 decided on 11.2.2010). The view of the Hon'ble Supreme Court is discernible from para 20 of the judgment which reads as under:- “The only guideline discernible from the aforesaid letter dated June 26, 1991 is that survey of existing construction should be done before notification is issued under Section 4 of the Land Acquisition Act; that existing factory should not be acquired and it should be released from the proceedings of Section 4 notification and that constructed area of 'A' and 'B' grade should be left out of acquisition. In Sube Singh, this Court has already held that classification on the basis of CWP No.6646 of 2009 -8- nature of construction cannot be validly made and such policy is not based on intelligible differentia and a rational basis germane to the purpose. ------ ------- -------” As a sequel to the above discussion, the impugned order dated 29.1.2009 (Annexure P-8) is quashed. A declaration is given in favour of the petitioner that his property as per the sanctioned scheme stood adjusted/accommodated/exempted from the acquisition. The petitioner is entitled to cost which we quantified at Rs.10,000/-. (M.M.KUMAR) JUDGE February 25, 2010 (JITENDRA CHAUHAN) Vt JUDGE CWP No.6646 of 2009 -9- A reply has been filed on behalf of respondents No. 2 and 3, in which it has been averred (and also argued at the time of the hearing) that the petitioner's property had never been exempted and the recommendation had been made only for the purposes of adjusting or accommodating the property of the petitioners in the lay out scheme. We are of the opinion, however that this stand is wholly untenable as the scheme had been recommended by the Improvement Trust (Annexure P-8) and had been duly approved by the State Government, vide notification Annexure P-9. The mere fact that in the resolutions passed by the Improvement Trust, the word “adjustment” or “accommodation” has been used instead of the word 'exempt' would not make any difference as it is not disputed before us that the petitioners property had been left outside the acquisition by the State Government on the recommendation of the Improvement Trust.