IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH CWP No.19187 of 2011 Date of decision : 13.10.2011 Fateh Singh Libra … Petitioner Versus The State of Punjab and another …Respondents CWP No.19157 of 2011 Date of decision : 13.10.2011 Gurbir Singh and others … Petitioners Versus The State of Punjab and another …Respondents CORAM : HON’BLE MR.JUSTICE SATISH KUMAR MITTAL HON’BLE MR.JUSTICE PARAMJEET SINGH Present: Mr.Summit Mahajan, Sr. Advocate with Mr.Sham Lal Bhalla, Advocate for the Petitioners. Paramjeet Singh, J. This order shall dispose of CWP No.19187 of 2011 and CWP No.19157 of 2011 as identical questions of law and fact arise in both the petitions. The brief facts are taken from CWP No.19187 of 2011 for adjudication of these writ petitions. The Petitioner has prayed for quashing of the notification dated 03.10.2005 (Annexure P-11) issued by respondent No.1 by which Expansion/Development Scheme of Block-A of Bhai Randhir Singh Nagar, Ludhiana, approved by the Government vide notification dated 28.10.1972 (Annexure P-1), has been amended without inviting objections from the public/residents. It is further prayed that amended Layout Plan dated 29.3.2001 (Annexure P-10) of Block A, Bhai Randhir Singh Nagar, Ludhiana, approved by the Government by aforesaid notification dated 03.10.2005 (Annexure P-11) be quashed; and mandamus is also sought by the petitioner CWP No.19187 of 2011 CWP No.19157 of 2011 not to carve out 20 ft. wide road from the Public Park ABCD, shown in yellow colour in the Layout Plan dated 4.4.1983 (Annexure P-2) as well as in plan dated 17.5.1993 (Annexure P-3) prepared by respondent No.2 with regard to Block A Bhai Randhir Singh Nagar, Ludhiana. It is further prayed that the writ of mandamus may also be issued to the respondents not to carve out Plots No.62-A, 62-AZ and 63-A of Block-A, Bhai Randhir Singh Nagar, Ludhiana as open space is not reserved/meant for residential purposes. The Petitioner has alleged that he is the owner/resident of House Nos.67-A and 68-A, Bhai Randhir Singh Nagar, Ludhiana and had constructed the houses over the said plots, for which, the Improvement Trust, Ludhiana had framed an Expansion Development Scheme under Section 24 read with Section 28 (2) of the Punjab Town Improvement Act, 1922 (hereinafter referred to as the Act of 1922) for an area measuring approximately 550 Acres. Sanction to the said scheme was granted by the Governor of Punjab under Section 41(1) of the Act of 1922, which was published under Section 42 of the Act of 1922 in the Govt. Gazette date 28.10.1972. The said scheme is popularly known as Scheme of Bhai Randhir Singh Nagar, Ludhiana (in short “BRS Nagar, Ludhiana”). Pursuant to the said scheme, Layout Plan dated 4.4.1983 of Block- A of BRS Nagar, Ludhiana was prepared. Thereafter, some amendments were made with regard to change of land uses of pocket where Shopping Centre is located and fresh Layout Plan was drawn by Drawing dated 17.5.1993. The area in dispute of the aforesaid Block-A of BRS Nagar, Ludhiana remained unchanged. As per the Layout Plan of BRS Nagar, Ludhiana Scheme (Annexure P-2), a public park adjacent to Plots No.67-A and 66-A has been left out which is marked with colour yellow and depicted as ABCD in Annexures P-2 and P-3. 2 CWP No.19187 of 2011 CWP No.19157 of 2011 It is the case of the petitioner that the principal consideration for the purchase plot No.67-A by the petitioner and his brother as well as of others residents was the existence of the park ABCD and adjacent open space behind the aforesaid plot. In addition to that, petitioner was also influenced by the fact that a 20 ft wide road had been provided in the plan which was to touch the backside of Plot No.67-A and other houses in the vicinity starting from House No.55-A to House No.74-A; and they had also purchased adjacent Plot No.68- A, which is adjoining to the plot No.67-A. It is admitted in paragraph No.7 of the writ petition that the petitioner had planted plants, grass and keep the grass green by watering it. The Petitioner had also planted hedge adjacent to 80 ft. wide road and 60 ft wide road in order to prevent stray animals destroying the same. As per the petitioner, there is no encroachment or brick work or any other permanent or temporary obstruction on the spot, has been created. In the Layout Plan (Annexure P-2) ABCD is the park which touched on one side 60 ft wide road on the other side 80 ft wide road and another road which is 20 ft. wide come and passes on the backside of plot No.67 touched the boundary of the park ABCD. Now, the authorities had made a plan to carve out a 20 ft. wide and 30 ft long road through the park ABCD to connect road starting from Plot No.74 with 80 ft wide road which passes in between the backside of Plot No.67-A and side of Plot No.66-A. Besides this, there is an open space in front of houses No.58 to 66 and 74 which is of Improvement Trust. The claim of the Petitioner is that on the backside of their plot No.67, there exits a 20ft X 30 ft. road which touch the boundary of park, which is a green belt. It is shown in the BRS Nagar, Scheme, Layout Plan prepared by the Ludhiana Improvement Trust, Ludhiana. According to the petitioner, this green belt has been left out for the benefit of the locality and is not subject to 3 CWP No.19187 of 2011 CWP No.19157 of 2011 any change by the respondents. However, in total violation of the provisions of the Act of 1922 and the Punjab Town Improvement (Utilization of Land and Allotment and Plots) Rules, 1983, amendment is being made vide notification dated 3.10.2005 (Annexure P-11). Secondly, petitioner states that it is not permissible to carve out the plots in the open space lying on the backside of their houses i.e. house No.67 and in front of House No.66 and other houses. The scheme known as Block-A, BRS Nagar, Ludhiana was earlier, approved by the Govt. of Punjab on 28.10.1972 and the modified Drawing was also got approved for Shopping Centre and fresh Layout Plan, was drawn on 17.5.1993 and that too has been approved. In exercise of powers conferred under Section 43 of the Punjab Town Improvement Trust, 1922 and all other powers enabling in this behalf, the Governor of Punjab is pleased to accord sanction to change the layout plan of approved development scheme of 550 Acres of Improvement Trust Ludhiana known as BRS Nagar, Ludhiana vide Drawing (Annexure P-2) dated 4.4.1983 to the extent as shown in the layout plan dated 29.3.2001 as adopted by the Trust vide its Resolution No.120 dated 22.7.2005 with a condition that the plots be kept in line with the adjoining existing plots. The notification (Annexure P-11) does not change the entire scheme, it only changes the slight part of the park for connecting 20 ft wide road to 80 ft wide road for the convenience of the residents of the area. The total area carved out of the park is 20 ft X 30 ft. Further permission has been granted to carve out the plots in the open space, which is available at the spot after demarcation and a boundary wall has been constructed by the PSEB. It cannot be treated as a change in user of the land of the entire scheme. The main argument of the learned counsel for the petitioner is that layout plan of the scheme prepared by respondent No.2 for BRS Nagar, 4 CWP No.19187 of 2011 CWP No.19157 of 2011 Ludhiana that is disputed area, has been shown as green belt and in absence of any order by a competent authority permitting the change in use of land, respondents could not have carved out the plots as well as the connecting roads i.e. Plot Nos.62-A, 62-AZ, 63-A and the road 20 ft X 30 ft through the park. Learned counsel for the petitioner has further submitted that before permitting the change of scheme vide Annexure P-11, notices should have been published in the newspapers and objections should have been invited as were invited from the residents of the locality at the time of approval of original plan in the year 1972 as well as in the year 1993 i.e. Annexures P-2 and P-3 respectively. Before we deal with the contentions raised by the learned counsel for the petitioner, we deem it appropriate to refer the relevant provisions of Section 43 of the Punjab Town Improvement Act, which reads as under:- “43. Alternation of scheme after sanction.- A scheme under this Act may be altered by the trust at any time, with the prior approval of the State Government, between its sanction by the State Government and its execution.” Alteration in Layout Plan of the scheme sanctioned and modified by the Government by prior approval is permissible. In this case alternation has been made after getting approval from the Government. Non-publication of notice cannot be treated as material fact effecting the outcome of the notification which at the most can be treated as mere irregularity and we are of the view that even for such like slight changes, no sanction is required, so there is no question of inviting the objections from the petitioner and others as changes are minor in nature. Learned counsel for the petitioner has placed reliance on the judgment of this Court 1973 PLR 743 titled as “Kartar Singh and others Vs. 5 CWP No.19187 of 2011 CWP No.19157 of 2011 The State of Punjab and another, wherein it has been held that notice is required to be issued and objections are invited from the general public. The authority cited by the learned counsel for the petitioner is not applicable to the present case because as per the provisions of law, publication is required only when there is a complete change in the sanctioned scheme but in the present case, there are minor changes in the scheme, for which necessary sanction has been accorded by the State Government. In the peculiar facts and circumstances of the case, this authority is not applicable. Learned counsel for the petitioner argued that under Section 36 of the Act of 1922, notice is required to be published weekly for three consecutive weeks in the official gazette and in newspaper/papers with a statement of the period within, which such objections can be filed before the Improvement Trust, Ludhiana for effecting the changes in the layout plan dated 4.4.1983. As such, the impugned notification (Annexure P-11) dated 3.10.2005 is illegal, against the provisions of the Act of 1922 and is not sustainable in the eyes of law. It is argued by the learned counsel for the petitioner that a part of the green belt is being destroyed by carving out a road and by carving plots in the open space, the value of the plots of the petitioner and others would seriously diminished. It is also argued that once the scheme is finalized under the Improvement Trust, the Trust and its functionary as well as the Govt. are bound by the terms and conditions of the original Layout Plan, as indicated in the original scheme. Any change in the scheme can be done by the govt. only after inviting objections from the aggrieved persons and after hearing the affected parties. However, no such procedure has been adopted by the respondents. As such, the act of the respondents be declared null and void. It is argued by the learned counsel for the petitioner that in the original scheme approved by the government, the disputed pieces of land are shown as park and 6 CWP No.19187 of 2011 CWP No.19157 of 2011 open space. It is a fact that on the backside of the plot, petitioner had planted hedge and also plants and grass, meaning thereby they had encroached upon the public property. In other words, it can be said that they have merged 20 ft wide road on the back side of their plot which reaches upto the park and merged in their own plots by planting hedge on that part. As such, they have even blocked the passage of the residents of the houses starting from House Nos.55 to 74 for the entry to the park. We have given thoughtful consideration to the contentions of the learned counsel for the Petitioner which have been urged before this Court. We have also seen the original plan prepared by the respondents (Annexure P-2 and P-3), duly sanctioned by the Govt. of Punjab. A bare perusal of the plan annexed with the petition clearly shows that park is marked as yellow colour as ABCD. Now the only amendment made with regard to the park is carving out of 20 ft X 30 ft. wide road. It would be appropriate to mention here that earlier too, the petitioner had filed a civil suit for permanent injunction restraining the respondents for carving out 20 ft X 30 ft wide road. A copy of the plaint of the said suit is attached as Annexure P-7 with the petition. Respondent No.2-Improvement Trust had filed a written statement wherein it has been mentioned that only 20 ft X 30 ft. part of the park has been converted into road to connect the 80 ft wide road and the remaining 80 ft length of the park remains intact which is a green belt/public park. Therefore, it is not possible to uphold the contention of the learned counsel for the petitioner that piece of land has been encroached upon by the petitioner by planting hedge and plants etc which 20 ft X 30 ft road has been carved out. We find sufficient justification for carving out 20 ft. X 30 ft. road to connect the same with 80 ft. wide road for the convenience of the general public and the residents of the area. Specifically, when a major part of the park 7 CWP No.19187 of 2011 CWP No.19157 of 2011 i.e. 20 ft. wide road 80 ft long had been encroached by the petitioner by planting hedge and grass. In this manner, blocking the entry to the park from back side of House Nos.67-A and 68-A i.e. house of the petitioner. So in our opinion first contention of learned counsel for the petitioner with regard to carving out road cannot be sustained. The next contention of learned counsel for the Petitioner is that there is an open space near houses No.55 to 66 in which three plots i.e. 62A, 62-AZ ad 63-A have been carved out. This is an open space which is lying vacant and it is apparent that a boundary wall has been constructed by the PSEB and open space is not reserved for any purpose. We are of the view that in such cases, no sanction for carving out the plots is even required. However, the Improvement Trust had already got the amended layout plan approved and sanctioned in pursuant to notification (Annexure P-11) dated 3.10.2005, whereby the direction to maintain the line of houses has been issued by the State Government, while according sanction to carve out plots there. Sanction for change in use of land is required only when the land is earmarked for a particular purpose and competent authority seeks to effective major changes. Permission to carve out plots in open space which become available cannot be treated as a change in use of the land. This contention of the learned counsel for the petitioner is also devoid of any merit. Thus, we do not find any substance in the contention made by learned counsel for the Petitioner that respondents had acted illegally by bringing change in the original use of land without prior sanction of the Govt. In this case, sanction has already been obtained vide Annexure P-11, the notification dated 3.10.2005. This fact is very much in the knowledge of the Petitioner and the fact that he had filed a civil suit, in which application under Order 39 Rules 1 and 2 CPC for restraining the respondents was also filed when no restrained order was passed by the court in that civil suit. Even in 8 CWP No.19187 of 2011 CWP No.19157 of 2011 appeal against that order filed before the learned Additional District Judge, Ludhiana, petitioner could not get any relief. The details of these facts are mentioned in paragraph no.7 of the petition. After having failed to get any restrained order from both the courts below, they had even approached this Court by way of CR No.5521 of 2000 which is stated to be still pending and the said revision has become infructous as the civil suit has already been withdrawn on 9.9.2011. We do not find any substance in the contention of the learned counsel for the petitioner that the respondents had acted illegally by bringing about minor changes of use of land with prior sanction of the Government and this contention stands repelled. Further we are of the view that Petitioner do not deserve any indulgence from this Court on account of abnormal delay in filing the writ petition. They were fully aware of the notification dated 3.10.2005 (Annexure P-11), as petitioner was one of the plaintiffs in civil suit dated 6.3.2006 (Annexure P-7) and the factum of approval of the scheme was also in the knowledge of the plaintiff, it has been mentioned in the written statement dated 5.6.2006 (Annexure P-8). The petitioner had slept over the matter for a period of five years before filing the present writ petition. In the background of these facts, as mentioned in the written statement (Annexure P-8), delay of more than five years is fatal to the prayer of the Petitioner to quash the notification dated 3.10.2005 (Annexure P-11). Further contention of the Petitioner that prior to the issuance of notification (Annexure P-11), no objections were invited from the petitioner and others by way of publication as they are the aggrieved persons. Firstly, the said objections are not required to be specifically addressed to the petitioner as there are only minor changes, for which to our mind even sanction is not required. Otherwise also, notification issued by the State is a public notice and 9 CWP No.19187 of 2011 CWP No.19157 of 2011 the public is presumed to have knowledge of this fact. They never raised any objections before the State Government/Improvement Trust after having knowledge of the notification dated 3.10.2005. They had become aware of the notification in 2006. They had approached the civil court to restrain the respondents-Improvement Trust from converting the existing park into road. In the civil court, petitioner could not persuade the court of competent jurisdiction to grant injunction. As such, petitioner cannot plead ignorance about the said notification. Apparently, they were watching the wings and watched the result of civil court. Only after the civil court declined to exercise its discretionary jurisdiction under Order 39 Rules 1 and 2, appeals and revision also failed, they have filed this writ petition. Therefore, we do not find any merit in these petitions and the same are liable to be dismissed on the ground of delay and latches also. For the reasons mentioned above, both the writ petitions are dismissed. ( PARAMJEET SINGH) JUDGE ( SATISH KUMAR MITTAL ) JUDGE 13.10.2011 sd 10