CIVIL WRIT PETITION NO.8812 OF 2011 :{ 1 }: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: MAY 18 ,2011 M/s Habitat Estates Pvt. Ltd. Village Malpura, Distt. Rewari .....Petitioner VERSUS The State of Haryana and others ....Respondents CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 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. R.S. Khosla, Advocate, for the petitioner. **** RANJIT SINGH, J. The petitioner has filed this writ petition for quashing the order dated 11.6.2010, whereby request of the petitioner for change of land use (CLU) is refused. The petitioner has prayed for direction to the respondents to grant the change of land use in view of provisions of Section 8(4) of the Punjab Scheduled Roads and Controlled Areas Restriction of Unregulated Development Act (hereinafter referred to as “the Act”). The petitioner has purchased 91 Kanals 6 marlas land situated in Malpura, Sub Tehsil Daruhera, Tehsil and District Rewari. CIVIL WRIT PETITION NO.8812 OF 2011 :{ 2 }: He moved an application on 2.6.2009 for grant of change of land use for setting up a warehouse over a land measuring 88 kanals 9 marlas. The application was submitted alongwith the demand draft for `78,500/-. It is averred that final development plan of controlled area of Daruhera has been published on 28.12.2007. As per this plan, the proposed site of the petitioner falls in industrial zone. The Government of Haryana has also published a final development plan and as per this also, the land falls in the industrial zone. The prayer of change of land use, however, was declined on 13.5.2010 on the ground that title of the land is not in favour of the petitioner as a notification is issued under Section 4 of the Land Acquisition Act for acquisition of the land. The submission of the petitioner is that the change of land use would deem to have been granted, once no order was passed at the expiration of period of three months after an application had been submitted to the Director. In this regard, the counsel has placed reliance on Section 8(4) of the Act. Section 8 of the Act reads as under:- “Section 8:- Application for permission etc. and grant of refusal thereof:- 1. Every person desiring to obtain the permission referred to in Section 3 or Section 6 or Section 7 or license under Section 7 shall make an application in writing to the Director in such form and containing such information in respect of the land, building excavation or means of access to a road to which the application CIVIL WRIT PETITION NO.8812 OF 2011 :{ 3 }: relates as may be prescribed. 2. On receipt of such application the Director, after making such enquiry as he considers necessary, shall be order in writing:- a. grant the permission or license subject to such conditions, if any, as may be specified in the order, or b. refused to grant such permission or license. 3. The Director shall not refuse permission to the erection or re-erection of a building which was in existence in a controlled area on the date on which the Notification under sub-section (1) of Section 4 was published, nor shall be impose any condition in respect of such erection or re-erection unless he is satisfied, after affording to the applicant an opportunity or being heard, that there is a probability that the building will be used for a purpose or is designed in manner, other than that for which it was used or designed on the date on which the said notification was published. 4. If, at the expiration of period of three months after an application under sub-section (1) has been made to the Director, no order in writing has been passed by the Director, the permission shall, without prejudice to the restrictions and conditions signified in the plans published in the official gazette under sub-section (7) of Section 5 deemed to have been given without imposition of any conditions.” CIVIL WRIT PETITION NO.8812 OF 2011 :{ 4 }: The petitioner had filed an appeal against the order passed by the Director, which has also been dismissed on 11.6.2010. As noticed in the impugned order, the site of the petitioner fall in industrial Sector 15 and part of the proposed site of the petitioner i.e. an area of 5616 Sq. meters fall in the green belt and part measuring 4637 sq. meters has come within 25 meters wide internal circular road. Accordingly, the appeal has been dismissed on this ground as well as on the ground that the petitioner is no more owner of the complete land in question as it has been acquired. The only plea raised on the basis of Section 8(4) of the Act would not impress me. Though this Section makes a provision of deeming grant of permission of change of land use but it is not absolute in its term. If no order in writing has been passed by the Director at the expiration of period of three months, then permission shall be deemed to have been given without imposition of any condition. However, this is again hedged with a condition that the same shall be without prejudice to the restrictions and conditions signified in the plan published in the official gazette under sub- section (7) of Section 5 of the Act. It is, thus, clear that Section 8(4) of the Act is not absolute in its terms and is subject to the restrictions, which can be imposed in the plans, which are published. Section 5 of the Act talks of publication of plan etc. in a controlled area. Controlled area means an area declared under Section 4 to be controlled area. Section 4 provides that Government may, by notification in official gazette, declare any area outside the limits of municipal town or any other area, which in its opinion has the CIVIL WRIT PETITION NO.8812 OF 2011 :{ 5 }: potential for building activities, industrial, commercial, institutional or recreational estate/activities and uses subservient to the above, to be controlled area for the purpose of the Act. As per Section 5, the Director, not later than 3 months from the declaration under Section 4 or within such further period that the Government may allow, prepare the plan in a prescribed manner, showing the controlled area and signifying therein the nature of restriction and condition proposed to be made applicable to the controlled area and submit the plan to the Government. In this regard, sub-section (7) of Section 5 lays down that after considering the objections, suggestions and representation, if any, and the recommendation of the Director thereon, the Government shall decide as to the final plan showing the controlled area and signifying therein the nature of restriction and conditions applicable to the controlled area and published the same in the official gazette in such other manner as may be prescribed. The deeming fiction under Section 8(4) of the Act is to operate and the permission, if any, would be without prejudice to the restriction and condition signified in the plans published in the official gazette under sub-section (7) of Section 5. The proposed land of the petitioner-Company concededly falls in the controlled area, which was declared as such on 10.9.1980. As per the final development plan published on 28.12.2007, the Company's land falls in Sector 15, which is industry zone. The application for change of land use permission was made on 2.6.2009. This was not accompanied by requisite documents. The petitioner was asked to remove the deficiencies. Revised documents CIVIL WRIT PETITION NO.8812 OF 2011 :{ 6 }: were submitted on 16.6.2009. Part of the proposed sites fall in a green belt and part comes within 24 meters wide internal circulation road. Besides, the land is under notification for acquisition. The request accordingly has been turned down. Once the area is declared as a controlled area, the permission to erect or re-erect a building is to be regulated by various provisions of the Act and once the land falls in the green belt or in a circular road as per the development plan, the change of land use certainly can not be granted. No case for interference in exercise of writ jurisdiction either to set-aside the impugned order or to direct grant of permission is made out. The writ petition is accordingly dismissed in limine. May 18,2011 (RANJIT SINGH ) khurmi JUDGE