IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.157 of 2011 (O&M) Date of decision:18.08.2011 Anil Kumar son of Shri Jamna Dass, House No.2, Shakti Nagar, Jattal Road, Panipat. ...Petitioner versus Director, Town and Country Planning, Ayojna Bhawan, Sector 18, Chandigarh, and others. ....Respondents CORAM: HON’BLE MR. JUSTICE K. KANNAN ---- Present: Mr. Som Nath Saini, Advocate, for the petitioner. Ms. Kirti Singh, DAG, Haryana. Mr.Mahipal Singh, Advocate, for Mr. Ashish Kapoor, Advocate, for respondent No.3. ---- 1. Whether reporters of local papers may be allowed to see the judgment ? No. 2. To be referred to the reporters or not ? Yes. 3. Whether the judgment should be reported in the digest ? Yes. ---- K.Kannan, J. (Oral) 1. The petitioner challenges the order issued by the Director, Town and Country Planning, rejecting an application made by the petitioner for change of land use for setting up a retail outlet as Kisan Sewa Kendra (KSK) at the Village Sondhapur, District Panipat. The three objections, which have been taken, are as follows:- i) The proposed site has been taken on lease for 99 years, but takseem intkal/tatima of which has not been submitted. Civil Writ Petition No.157 of 2011 (O&M) - 2 - ii) Violation of Section 7(i) of Act No.8 of 1975 has been taken place due to sale purchase of land in the compact block, in which the proposed site is situated. iii) Unauthorized construction has been raised at site in violation of Act No.41 of 1963. 2. Of them, as regards the first objection, the petitioner’s contention is that, the property belonged to the father and he had taken it on 99 years lease. It is contended that there is no requirement for such a transfer to be entered in revenue records. The learned counsel for the State would point out to Section 34 of Punjab Land Revenue Act, 1887 as applicable to Haryana, that requires any person acquiring, by inheritance, purchase, mortgage, or otherwise, any right in an estate as a landowner, assignee of land revenue or tenant having a right of occupancy, shall report his acquisition of the right to the patwari of the estate. Evidently, the petitioner was under the belief that it was not necessary if he is a close relative. If the authorities would require the proof of mutation, the petitioner could secure the same, for, I would understand Section 34 to be merely a facilitative provision and not a legal mandate to pursue for a person, who has acquired such a right. The Land Revenue Act is essentially to enable the State to know the person, who will be responsible for paying the revenue to the State and a transferee of an interest in immovable property is required to obtain mutation to benefit himself by securing an entry in an official record proclaiming such right as well as enable to State to collect revenue. I will not take this to be a fundamental defect to deny the permission Civil Writ Petition No.157 of 2011 (O&M) -3 - sought for. 3. The violation complained of with reference to the transfer of property without the sanction is required under Section 7(i) of the Haryana Development and Regulation of Urban Areas Act of 1975, in my view, cannot apply, since the interdict as set out in the Section applies only to a transfer or agreement to transfer in any manner, plots in a “colony” among other grounds mentioned therein. The Section reads as under:- “Prohibition to advertise and transfer plots:- Save as provided in Section 9, no person shall,- (i) without obtaining a licence under Section 3, transfer or agree to transfer in any manner plots in a colony or make an advertisement or receive any amount in respect thereof. (ii) ……. (iii) ……” “Colony” is also defined under the Act and that includes a housing laying out where the constructions for domestic or commercial use are required to be made and the use of a piece of an agricultural land that has been purchased by the father of the petitioner cannot come within the interdict contained under Section 9. It is no body’s case that this is a part of a lay out in a colony. 4. The unauthorized construction which would constitute a violation under Punjab Scheduled Roads and Controlled Areas Restriction of Unregulated Development Act of 1963 would require us to Civil Writ Petition No.157 of 2011 (O&M) - 4 - examine the definition of “Schedule Road” as under:- “Scheduled Road” means a road specified in the Schedule to this Act which is wholly situated within the State of Haryan and, where, any road so specified is not so situated, the portion of such road which is situated in the State of Haryana, and includes a “Bye- pass”, but does not include in any part of such road or portion, not being a bye-pass, which is situated in the limits of a local authority.” In order that a particular place could be said to be a construction which is prohibited, it should be on a Scheduled road and it is contended that the place where the outlet is sought to be established is Jattal road and that it is not a road specified in the Schedule. The learned counsel for the State would contend that there is also a provision that bars an erection or re-erection of any building in a controlled area. Section 6 of the Act reads as follows:- “6. Erection or re-erection of buildings etc. in controlled areas:- Except as provided hereinafter, no person shall erect o re-erect any building or make or extend any excavation or lay out any means of access to a road in a controlled area save in accordance with the plans and the restrictions and conditions referred to in Section 5 and with the previous permission of the Director. Civil Writ Petition No.157 of 2011 (O&M) - 5 - Provided that no such permission shall be necessary for erection or re-erection of any building if such building is used or is to be used for agricultural purposes subservient to agriculture.” This Section excepts such permission in cases where erection or re-erection of a building is used or is to be used for agricultural purposes or purposes subservient to agriculture. If the complaint is that in the proposed site, there is already a construction, it explained by the petitioner that construction as a kotha in an area of 14 kanals 12 marlas has been made for storing of agricultural implements. If the ground mentioned in the impugned order must be understood as prohibiting a possibility of a future construction for establishing an outlet, the contention is that this is done only for setting up a KSK that is for agricultural purpose meant for distribution of fuel for agricultural use, as the expression 'KSK' itself may denote. I do not find that there are any violations of any law as set through the grounds urged in the impugned order. The impugned order is not tenable in law and it is quashed. The petitioner is at liberty to apply for a mutation in so far as the purported lease in his favour is concerned and furnish the same to the authority who will take it into account and pass appropriate orders for change of land use. 5. The writ petition is allowed as above. (K. KANNAN) JUDGE 18.08.2011 sanjeev