C.W.P. No.9837 of 2001 -1- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No.9837 of 2001 Date of Decision: 18.01.2010 Maninder Kaur and others ....Petitioner Versus Municipal Corporation, Patiala through its Commissioner, Patiala and others ....Respondents Present: Mr. Kuldip Sanwal, Advocate for the petitioner. Mr. K.K. Garg, Advocate for respondent Nos.1 to 3. Mr. Anupam Gupta, Advocate for respondent Nos.4 to 6. Mr. Pardeep Bajaj, Advocate for Mr. Rupinder S. Khosla, Advocate Mr. Manohar Lal Sharma, Addl. A.G., Punjab. CORAM:HON'BLE MR. JUSTICE K. KANNAN 1. Whether Reporters of local papers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest? ` -.- K. KANNAN J.(ORAL) 1. The petitioners seek for a direction against respondents Nos.1 to 3 to curb the menace of commercial building activities coming up in the residential colony of Punjabi Bagh at Patiala as being illegal and arbitrary. The persons, who, according to the petitioner, have violated the zoning requirements for Patiala Town are respondents No.4 to 6 and are Doctors by profession, C.W.P. No.9837 of 2001 -2- who have set up clinics in a residential colony, the professional activity being commercial in nature. 2. Learned counsel for the petitioners refers to an observation made by this Hon'ble Court on 24.02.2004 when the Bench of this Hon'ble Court had observed that for effectively and comprehensively deciding the grievance of the petitioners and keeping in view the larger public interest, the impleadment of the State of Punjab through Secretary, Local Government was necessary. Learned counsel appearing for the State had been directed to give an affidavit on behalf of the Secretary as to how the residential land had been allowed to be used for commercial purposes. Learned counsel appearing for the private respondents was also directed to seek instructions from his clients whether they were willing to shift their activity outside the residential colony. The contention of the learned counsel appearing for the petitioners is, therefore, that the directions given by this Court have not been complied with and the petitioners are entitled to obtain a relief as sought for in the writ petition. 3. It must be remembered that the directions given by this Hon'ble Court on 24.02.2004 could only be seen as provisional and cannot amount to any adjudication of rights between parties or a decision whether the property was residential or non- residential. The Hon'ble Bench was merely dealing with the contention of the petitioners that it was a residential property and C.W.P. No.9837 of 2001 -3- wanted the facts to be elicited from the contesting respondents whether they wanted to shift outside the residential area. 4. After the notices had gone to the respondents, the statement has been filed by respondent Nos.1 to 3 namely the Municipal Authorities stating that the residential and nursing homes built by the 4th respondent was on 95 feet wide road, behind Raj Kamal, Sham Bagh Palace, which had been declared by the State Government as commercial in pursuance of resolution No.374 dated 30.11.1999. The copy of the order dated 08.08.2000 making the change of user and referring to the 95 feet road as allowed to be used from residential to commercial use upto the single depth in pursuance of resolution No.374 dated 30.11.1999 of Municipal Corporation, Patiala has also been filed along with the reply. All the private respondents have filed their respective objections contending that they are all running their clinics in residential-cum-commercial area and they are not wholly residential as canvassed by the petitioners. 5. Learned counsel appearing for the petitioners submits that the written statement filed by the respondents has been denied by the petitioners through the replication and the properties are only residential in nature and the permission granted by the Civic Authorities to the private respondents to carry on their professional practice runs counter to the alleged zoning requirements of Patiala Town. The Principal Secretary, C.W.P. No.9837 of 2001 -4- Local Government representing the State, which was directed to be impleaded as party has stated that the District Town Planner, Patiala vide his letter No.1331-DTP (P)/SP-25C dated 25.07.2000 recommended for grant of sanction to the 4th respondent intimating that the site fell within the Town Planning Scheme of Narula Colony, which had been approved by the Government and considering the technical advice of respondent No.3, due approval had been given to the building for construction of a residential house. It appears that the construction had been raised by the 4th respondent in violation of the sanctioned building plan and subsequently revised building plan had been submitted by the 4th respondent. This was again referred to the District Town Planner and he had confirmed that the site fell in Town Planning Scheme, which had been duly sanctioned. But since the proposed construction of nursing home-cum-residence involved change in nature of land use and as such violative of the clause of the Scheme, a recommendation had been made for rejection of the building plan. The Building Sub-Committe before whom the proposal went, took a view that the site in question and the adjoining site had been earlier used for running of “Chicks Hotel” and the road on which the property was situate had already been declared commercial by the Government and the commercial constructions could be raised. Therefore, it was decided that the proposed construction of Nursing Home-cum-residence could be C.W.P. No.9837 of 2001 -5- allowed on payment of Rs.500/- per square yard as conversion charges. The Government has taken a stand that the Government itself had not accorded any permission for conversion of land use i.e. residential to commercial. The Government took a hands off approach in the reply when it said that as per the provisions of Sections 258, 260 and 262 of the Punjab Municipal Corporation Act, 1976, the Commissioner, Municipal Corporation alone was the competent authority with regard to the grant of sanction or refusing to sanction and since the minutes had been drawn by the Committee on 21.03.2001 when sancation had been accorded to respondent Nos.4 to 6 to construct the building for nursing home- cum-residence, they were internal proceedings of the Municipal Corporation and they were neither sent to Government nor the Government accorded any approval for the change of land use. 6. Any relief that the petitioners could have against the respondents No.1 to 3 on issue of a writ of mandamus would arise only; (i) if the Municipal Corporation Authorities failed to do a duty enjoined on them under the relevant Act or; (ii) when the petitioners' right was, in any way, put to any infraction. Petitioners, being the residents of Patiala had a right to ensure that the common facilities such as roads, were allowed to be enjoyed force of all obstructions. They can have a remedy for directing the Municipal Authorities to conform to law, if only they show that in the decision taken by the Municipal Authorities, there was C.W.P. No.9837 of 2001 -6- a clear violation of statutory provisions. The resolutions of the Municipality, which allowed for a change of residential use for residential-cum-commercial on one side and wholly commercial use on another side unless the resolutions themselves are infected with any statutory violations, there could be no mandamus. The pressure on property in rural India is too well-known to require an emphasis. The proliferation of commercial activities within the immediate residential neighbourhood is a daily occurrence. We have to only ensure that the industrial acivities that could have a bearing on issue of pollution in residential areas will require strict observance while still allowing the continuance of any form of commercial activity that has domestic utility by granting exceptions or relaxations, wherever public interest would not suffer. A shop at the corner of the road from a residential place is not a thing to be frowned upon. A doctor in the vicinity could not be an eyesore. A clinic in a residential area is still not the same thing as a serious violation that would be impermissible for the Municipal Authority to condone by making necessary resolutions. The petitioners could have remedy for nuisance if activity of the private respondents could qualify for such a civil wrong. Public law remedy through writs, unless the petitioners show a clear statutory violation, they shall not be granted with the relief of mandamus. 7. Further, I have not been shown through any such C.W.P. No.9837 of 2001 -7- infraction of statutory provisions or a laxity of enforcement of the provisions of law with resondent Nos.1 to 3. If the contentions raised by the respondents No.1 to 3 that the property where the private respondents are running their residential house-cum- clinics are only in the residential zone, it is more in the nature of a disputed question of fact, which cannot be resolved in the writ petition. 8. The petitioners may have common law remedies for restraint for nuisance, if they are so advised, before a competent authority/Court, if facts establish any civil wrong. Subject to this liberty, the writ petition, in my view, ought to fail and it is dismissed. (K. KANNAN) JUDGE January 18, 2010 Pankaj*