CWP No. 17201 of 2010 -1- IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH 1. CWP No. 17201 of 2010 Date of Decision: November 21, 2011 Amar Singh and others …Petitioners Versus State of Punjab and others ..Respondents 2. CWP No. 17234 of 2010 Sukhdev Singh and others …Petitioners Versus State of Punjab and others ..Respondents CORAM: HON'BLE MR. JUSTICE M.M. KUMAR HON'BLE MR. JUSTICE RAJIV NARAIN RAINA Present: Mr. A.K. Chopra, Sr. Advocate with Mr. G.S. Sullar, Advocate for the petitioners. Mr. Suvir Sehgal, Addl. A.G., Punjab Mr. D.V. Sharma, Sr. Advocate Ms. Shivani Sharma, Advocate for the respondent. 1. To be referred to the Reporters or not? 2. Whether the judgment should be reported in the Digest? M.M. KUMAR, J. 1. This order shall dispose of two petitions, namely, CWP Nos. 17201 and 17234 of 2010 filed under Article 226 of the Constitution of India. The prayer made by the petitioners is for CWP No. 17201 of 2010 -2- quashing the communication dated 14.09.2010 (P-17) rejecting the consent applications of the petitioners to opt for Land Pooling Scheme of the State of Punjab being illegal, arbitrary and violative of the principles of natural justice. A further prayer has also been made for quashing the Public Notice published on 08.03.2010 (P-8), award dated 16.04.2010 (P-11) and corrigendum published on 26.04.2010 (P-13) to the extent that it provides only 121 Sq. Yards of commercial land against each acre of the acquired land by including parking area in the same. The attack on the aforesaid public notice, award and corrigendum is primarily based on allegation that it violates the Land Pooling Scheme dated 05.09.2008 (P-3), issued by respondent-State of Punjab and it violates master plan of SAS Nagar (Mohali) notified on 12.12.2008 and the development/ layout plan dated 12.11.2009 (P-9). Still further, a prayer for quashing the development /layout plan dated 01.04.2010 (P-10) to the extent that it did not depict the developed commercial land and instead show many pockets as reserved area, which term has been coined with malafide intention to deceive and cheat the land owners including the petitioners who had opted for Land Pooling Scheme, which violates the master plan dated 12.12.2008. Other consequential prayer has also been made. 2. When the matter came up for consideration before this Court on 23.09.2010, learned counsel for the petitioners categorically stated that the petitioner did not have any objection to the proposed CWP No. 17201 of 2010 -3- acquisition and his grievance was only regarding non-implementation of the Land Pooling Scheme in a proper manner and that too has been limited to commercial sites. It is claimed that no area for parking could be deducted from the developed commercial area. The other grievance made was that before offering plots to the general public, it is incumbent upon the authorities to offer residential/ commercial plots by way of compensation for the land acquired. On 24.09.2010, after issuance of notice of motion, the parties were heard with regard to draw of lots to allot residential plots to the general public in the proposed scheme, which was to commence on 25.09.2010. On behalf of Greater Mohali Area Development Authority (for brevity 'GMADA'), it was stated before this Court that the applications of petitioners No. 6, 7, 8 and 11 (CWP No. 17201 of 2010) have already been accepted under the Land Pooling Scheme. The applications of other petitioners were stated to be under active consideration. Learned counsel for the GMADA made the following statement before the Bench, which reads as under: “Mr. Brar states that draw of lots will only be held for the purpose of determining eligibility of the applicants to get a plot allotted. Before issuance of letter of intent and the number of plots/ allotment letter to the allottees, eligibility of the land owners to get plots shall be decided after inviting options CWP No. 17201 of 2010 -4- regarding size of the plot and letter of intent shall also be issued to them on the same day along with the applicants, who may be successful in the draw of lots. In view of statement made, we direct respondent No.2 to conduct draw of lots. However, it is made clear that the result of the draw of lots shall be subject to the ultimate outcome of the writ petition. It is further made clear that commercial plots shall be put to auction only after getting appropriate orders from this Court.” 3. It is, thus, evident that the draw of lots for the purpose of determining eligibility of the applicants to get a plot allotted was permitted to be held on 25.09.2011 as scheduled. The eligibility of the land owners for allotment of plots was to be decided after inviting options regarding size of the plot. The letter of intent was to be issued to them on the same date along with successful applicants. The commercial plots were to be put to auction only after getting appropriate orders from this Court. 4. In response to the notice of motion, short replies by way of affidavit of respondents were filed on 06.12.2010 and 23.05.2011. Thereafter a detailed written statement on behalf of respondent No.2 was filed on 23.09.2011. The stand taken by respondent No.2 is that the Land Pooling Scheme gives discretion to the acquiring department to vary the norms keeping in view the passage of time CWP No. 17201 of 2010 -5- and geographical situation of the land. It has been explained that out of one acre of land, 1936 sq. yards land is being developed for residential purposes and 242 sq. yards land for commercial purposes. The total developed area of land for residential and commercial purposes would come to 2178 sq. yards. The Land Pooling Scheme (P-3) in categorical terms clarify that half of the commercial developed area out of the total commercial developed area per acre is to be allotted to the land owners who opt for the Land Pooling Scheme. The commercial developed area of 242 sq. yards per acre is to be shared equally by GMADA with the land owners who opt for Land Pooling Scheme. Thus, both of them would be entitled to 121 sq. yards, which included parking. It is claimed that there was no question of any discrimination caused to the petitioners. Out of one acre of land, two commercial sites measuring 121 sq. yards each, which includes parking is being developed and the area offered in commercial sites is the same. 5. Written statement further clarified that in the award also, the aforesaid position has been made clear that 121 sq. yards of commercial area would include parking area. It has also been further clarified that GMADA-respondent No.2 was not to take away more area than 121 sq. yards which include the parking with 60.5 sq. yards permitted for construction with 1.75 floor area ratio. There is no violation of the Land Pooling Scheme either by public notice on 08.03.2010 or the corrigendum published on 26.04.2010 because the CWP No. 17201 of 2010 -6- public notice dated 08.03.2010 (P-8) indicated that the commercial site of 121 sq. yards include the parking area. The aforesaid facts have also been clarified in paragraph Nos. 4 and 5 of the written statement on merit. 6. Mr. A.K. Chopra, learned Senior counsel has stated that the only issue which survives for consideration is whether the commercial area of 242 sq. yards per acre to be developed by GMADA would include the parking area. In other words, the only issue which survives for consideration of this Court is that petitioners who were to be allotted 121 sq. yards of commercial area against one acre of land contributed to the Land Pooling Scheme would be under obligation to contribute the area for parking or not. According to Mr. Chopra, the area for parking has not been shown in the site plan and respondent No.2-GMADA is acting unfairly by setting off the area for parking, out of the total area 121 sq. yards. In that regard, he has placed reliance on the communication dated 05.09.2008 (P-3 Colly.) with the subject 'Implementation of Land Pooling Scheme for Land Acquisition in the State of Punjab'. According to learned Senior counsel, there was no mention of parking in the Land Pooling Scheme which was decided by Council of Ministers in the meeting held on 21.08.2008. Particular emphasis has been laid on the following clauses, which read as under: “a) The compensation proposed to be offered for every acre of land is as under:- CWP No. 17201 of 2010 -7- i) Half of the developed residential area. ii) Half of the developed commercial area. b) The acquiring Department may, however, be also given the discretion to vary the norms with the passage of time and the topographical position of the land to be acquired. For awarding the compensation either the normal provisions of the Land Acquisition Act would apply or the package as given have to be accepted as in one acquisition scheme different modes of compensation would be feasible. c) The earlier decision taken by the Cabinet Sub- Committee on 04.10.2007 referred to in Para No. 1.1 be implemented by the Department of Local Government and the PSIEC as Town Planning Scheme on experimental basis. d) The compensation to be allowed under the Land Pooling Scheme has to take prospective effect. e) The policy shall be applicable for Urban Development Authorities i.e. Housing Department, PUDA, GMADA, Improvement Trust and as far as possible to Industry's Department prospectively.” 7. Reliance has also been placed on the document titled as Rough Cost Benefit Analysis (P-3 Colly.) to argue that no mention of CWP No. 17201 of 2010 -8- setting off parking area has been made. 8. On behalf of the respondents, submissions have been made by Mr. Suvir Sehgal, learned Addl. A.G., Punjab and Mr. D.V. Sharma, learned Senior counsel. According to learned counsel, when the public notice (P-8) was issued, it was clearly mentioned in Clause 1 of the public notice that for measuring one acre, 968 sq. yards residential and 121 sq. yards would be allotted under the Land Pooling Scheme, which would include parking area. They have further submitted that the petitioners are estopped from challenging the public notice because they applied for the Land Pooling Scheme after acquiring knowledge that the parking area has to be left out from the developed commercial area, which was further clarified by corrigendum dated 26.04.2010 (P-13). They have also placed reliance on the award 16.04.2010 (P-11), wherein it was specifically mentioned that the commercial area 121 sq. yards would be inclusive of parking area. According to learned counsel, there is no doubt left that the parking area is not to be provided by GMADA-respondent No.2, in addition to 121 sq. yards area. 9. After hearing learned counsel for the parties and perusing the Land Pooling Scheme as approved by respondent-State on 21.08.2008 (P-3), we are of the considered view that the issue with regard to parking area is no longer a matter of controversy. It has been clearly mentioned that for every acre of land, half of the residential area and half of the commercial area would be offered. CWP No. 17201 of 2010 -9- The total developed area comes to 1936 sq. yards per acer. Out of one acer of the land, 1936 sq. yards land is being developed for residential purposes and 242 sq. yards land for commercial purposes. The total developed area in respect of both works out to 2178 sq. yards per acer and 50% of the same is to be allotted to be land owners who opt for Land Pooling Scheme. Out of the total commercial developed area of 242 sq. yards per acer, respondent No.2-GMADA and the land owners opting for Land Pooling Scheme are to share the same in equal proportion i.e. 121 sq. yards which include the parking. The aforesaid facts have been made clear in the public notice dated 08.03.2010 (P-8), Award dated 16.04.2010 (P- 11) and corrigendum dated 26.04.2010 (P-13). The public notice, award and corrigendum cannot be held contrary to Land Pooling Scheme (P-3) because these documents are complimentary to the original scheme. It was on the basis of the corrigendum that the date for inviting applications under the Land Pooling Scheme was extended to 03.05.2010. Respondent No.2-GMADA has taken a fair stand that for parking, the land has to be contributed by the land owners and facilities are also to be used by them or the visitors to the commercial sites. Even otherwise, we feel that without parking, there is no possibility of developing the area and the absence of the parking may result in complete chaos. We find no illegality, unreasonableness or discrimination insofar as the area of parking is to be contributed by the petitioners who have opted for the Land CWP No. 17201 of 2010 -10- Pooling Scheme is concerned. Respondent No.2-GMADA has also fairly offered to the petitioners that if the terms and conditions of the scheme are not acceptable to them then they could opt out of the scheme. Therefore, the claim that the area of parking should be in addition to 121 sq. yards of commercial land is hereby rejected. 10. Accordingly, both the writ petitions do not merit admission and the same are dismissed. 11. A photocopy of this order be placed on the file of connected case. (M.M. KUMAR) JUDGE (RAJIV NARAIN RAINA) JUDGE November 21, 2011 Atul