CIVIL WRIT PETITION NO.19638 OF2010 (O&M) :{ 1 }: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: JANUARY 18 ,2011 Shri Sunil Mehta and others .....Petitioners VERSUS 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. Rai, Sr.Advocate with Mr. Vishal Garg, Advocate, for the petitioners. Mr. S. S. Patter, DAG, Haryana, for the State. Mr. R.K. Saini, Advocate for Mr. G. S. Hooda, Advocate, for respondent No.3. Mr. Amit Sharma, Advocate for Mr. Arun Walia, Advocate, for respondent No.5. Mr. Atul Sharma, Advocate, for respondent No.6. Mr. Akshay Bhan, Advocate, for the applicant. **** RANJIT SINGH, J. The issue raised in the present petition not only relates to CIVIL WRIT PETITION NO.19638 OF2010 (O&M) :{ 2 }: the use of green belt for any other purpose except the green belt but also of public interest at large and those of individual or some selected part of public. The petitioners are some of the members of National Media Centre Cooperative Building Society consisting of mostly Generalist and Academicians, who have approached this court against the use of area left as green belt in the premises of the Society, where they have constructed a housing colony in Gurgaon. The petitioners would allege that this is being done totally in an illegal and arbitrary manner with malafide intention to benefit respondent No.6. The submissions may look attractive but when examined in the light of purpose for which this is being done, the plea would look rather unfair and unreasonable. The purpose for which a negligible portion of green belt is being utilized is for constructing Rail Metro Rapid, Gurgaon. As per the petitioners, this is being done to benefit a private builder having commercial interest adjacent to the proposed metro rail route. The use of part of this area, left as green belt, initially is being done under the provisions of Section 3(3)(a)(iii) of Haryana Development and Regulation Urban Area Act, 1975 (for short, “the Act”). The petitioners would contest the power and jurisdiction of the authority to permit the use of this area in the manner it is being done. The petitioner-society had purchased 20 acres land situated in village Nathupur adjacent to National Highway 8 for the purpose of developing a colony. The petitioner-Society was granted CIVIL WRIT PETITION NO.19638 OF2010 (O&M) :{ 3 }: the requisite sanction by the competent authority and upon construction of the houses, completion certificate has also been issued on 16.12.2008. Somewhere in the year 2007, HUDA had planned Rail Metro Rapid Gurgaon (for short, “RMRG”). This is stated to be privately owned and operated metro. 3.2 K.Ms link between Sikandarpur and National Highway 8, as shown in the site plan, was originally tendered. It is averred that subsequently a new tender was issued, when DLF-ILFS consortium emerged as the only bidder and the route was also increased to 6.1 K.Ms. It is alleged that this has been done to benefit DLF for their residence and commercial activity as their prime properties are adjacent to this route. The petitioner had raised the issue with the office bearers of the Society. One of the Member of the Society, namely, Hari Jai Singh gave a detailed report on 19.9.2010. It is stated that the entire matter has been shoddily handled and the key functionaries have acted in an arbitrary manner. Alleging that the respondents have initiated the process of acquisition and construction hurriedly, the petitioners have filed this petition, being left with no other alternative. A negligible portion of 50 meters wide green belt is being acquired for the purpose of RMRG. Mention is made in detail to the process, which started with letter dated 18.2.2009 initiated by Senior Town Planner, Gurgaon, asking for dimensions of the area under green belt in possession of the Society. On 26.2.2009, Senior Town Planner decided to take possession of the green belt after demarcating the same at the site. The petitioners were called upon to give possession. The Committee instead held an emergency meeting CIVIL WRIT PETITION NO.19638 OF2010 (O&M) :{ 4 }: on 8.3.2009 and decided to demarcate the entire area and to provide alternative exit to the main road in order to maintain the green belt. Letter accordingly was written to the Senior Town Planner. In short, the Society expressed disagreement with the demarcation carried out and also requested the HUDA authorities not to demolish the existing boundary wall. Senior Town Planner asked Estate Officer, HUDA, to hand over part of 50 meters green belt. It is accordingly stated that everything is being done hurriedly and illegally. It is disclosed in the petition that certain excavators and diggers were engaged on 17.10.2010 and the builders have entered the premises to dig the land and uproot trees etc. As per the petitioners, even Forest Officer, Range Gurgaon has issued notice restraining the respondents from removing any tree. It is disclosed that a petition in this regard has also been filed before the Hon'ble Supreme Court. The petitioners have accordingly approached this Court against the action taken to convert this green belt area for construction of RMRG. While issuing notice of motion on 1.11.2010, this Court directed the parties to maintain status-quo. Replies on behalf of respondents have been filed. In its reply, Director, Town and Country Planning (respondent No.2), has disclosed that 50 meters of land forming part of green belt is being used for constructing RMRG, which is for the benefit of entire town. It is also disclosed that the petitioners had approached Central Empowered Committee Bench (CEC), appointed by the Supreme Court of India and, thus, it is stated that the CIVIL WRIT PETITION NO.19638 OF2010 (O&M) :{ 5 }: petitioners have adopted a dual course of action for getting same or similar relief. Reference is made to some earlier decisions of the management of the Committee of the Society. Mr.Gopal Krishan, President and General Secretary, Mr.Raghav, have taken a decision, which is not put under challenge. The decision to transfer green belt has been mutually accepted by both the parties and, therefore, is not in dispute. It is stated that the petitioners have not impleaded the Management Committee and, thus, the writ petition would deserve to be dismissed on this ground. The resolution passed by the Managing Committee is annexed with the reply as Annexure R-1, whereby the report of Sub Committee headed by Hari Jai Singh was rejected in toto. Rather, earlier decision of the office bearers has been upheld by the Management Committee. Referring to the legal position, it is stated that Section 4 of Punjab Scheduled Roads and Controlled Area Restriction of Unregulated Development Act, 1963, defines the land uses. The width of the roads and the green belt wherever found necessary to be maintained alongwith the specific road is also mentioned in the development plan of a particular controlled area/controlled areas. In the present case, the width of the green belt to be maintained is 50 meters. The use of green belt/open spaces is also defined in the explanatory note of particular development plan. Reference is made to final development plan of Gurgaon-Manesar, which is as under:- “The green belt shown along sector/arterial roads shall be primarily meant for the widening of the sector/arterial road in future. However, till such time the widening of road CIVIL WRIT PETITION NO.19638 OF2010 (O&M) :{ 6 }: does not take place, the said area may be utilized for nursery/plantations, fuel filling station, communication lines, utility services etc. with the prior approval of Director.” It is accordingly stated that the petitioners can not allege wrong utilisation of the land falling in green belt for construction of rail metro to be unlawful. Reference is also made to the approved layout plan of the colony and the green area as per the approved layout plan to say that the proposal is as per the development plan. It is also pointed out that every colonizer has to transfer the land forming part of green belt and roads as per the terms and conditions of the licence granted under the provisions of the Act. This is so as per Section 3(3)(a)(iii) of the Act. A colonizer is required to furnish a undertaking to transfer all roads, open spaces, public parks and public health services free of costs to the Government or local authority as per Rule 11(d) of the Haryana Development and Regulation of Urban Areas Rules, 1976 (for short, “the Rules”), which is as under:- “11(d) undertake responsibility for the maintenance and upkeep of all roads, open spaces, public parks and public health services for a period of five years from the date of issue of the completion certificate under rule 16 unless earlier relieved of this responsibility and there upon to transfer all such roads, open spaces, public parks and public health services free of cost to the Government or the local authority, as the case may be;” CIVIL WRIT PETITION NO.19638 OF2010 (O&M) :{ 7 }: The area maintained as a green belt by the Society was transferred to the Society in accordance with these provisions. It is also stated that HUDA has already taken over green belts/roads from various licencees and in this regard reference is made to the following, who have already handed over the area of green spaces to HUDA:- “Sr.No. Name of Colonizer Sector Area in acres Date of possession (App.) handed over to EO II, HUDA, Gurgaon 1. M/s National Media Centre 25-A 1.50 STP(G) memo No.2070 dated 9.3.2009 2. M/s HLF/Adbiance 25-A 0.30 STP(G) memo No.2066 Infrastructure Pvt. Ltd. Dated 9.3.2009 3. M/s DLF Ltd. 25-25A 34.00 STP(G) memo No.2062 dated 9.3.2009 4. M/s DLF Ltd. 30 1.14 STP(G) memo No.3334 dated 8.4.2010 5. M/s Unitech Ltd. 30 1.324 STP(G) memo No.3334 6. M/s Unitech Ltd. 15(II) 0.08 STP(G) memo No.3328, dated 8.4.2010” _______________________________________________________ The HUDA has, thus, already used and developed the above areas. It is pointed out that a part completion certificate was issued to the Society on 16.12.2008 subject to various conditions. One of the condition was that the land under service road/green belt shall be transferred free of cost to HUDA/local Government, as the case may be. A copy of this certificate is annexed with the reply as Annexure R-5. It is accordingly stated that there is no question of acquiring the land once the same has already been transferred and upon transfer the title of the land would not vest with the petitioner- Society. The right of ownership is limited to individual plots but not in CIVIL WRIT PETITION NO.19638 OF2010 (O&M) :{ 8 }: regard to open spaces/roads etc. which are for general public use. It is also pointed out that the Society has already been granted 100% benefit of plotable area in lieu of area forming part of green belt, for which licence was granted. Somewhat similar stand is projected by respondent No.6 (wrongly mentioned as respondent No.5 in the counter) in a separate reply filed. Reference is made to the relief which the petitioners have claimed from CEC and it is stated that the said Bench is competent to hear all the grievances. On this basis, it is urged that the petitioners have indulged in forum shopping to obtain relief and, thus, have abused the process of Court. Reference is also made to Paras 33 and 34 of the writ petition where the petitioners have averred that they have not filed any such or similar writ petition, which is, thus, stated to be a misleading and wrong averment. To rebut the contention that the land in question is reserved for green belt/area, reference is made to modified master plan notified on 5.2.2007, relevant portion of which is as under:- “7......The green belt shown along the sector/arterial roads shall be primarily meant for widening of the sector/arterial road in future. However, till such time the widening does not take place, the said area may be utilized for nursery plantations, fuel filling station, communication lines, utility services etc. with the prior approval of the Director. “zf “Green Belt” shall man, strips of land along sector/arterial road shown in the development plan, CIVIL WRIT PETITION NO.19638 OF2010 (O&M) :{ 9 }: primarily meant for the widening of the sector/arterial road in future.” It is accordingly stated that this area was not meant to be preserved as green belt for all times to come. As per answering respondent No.6, the entire stretch of land falling within the boundary wall of the petitioner-Society, which is 50 meters wide and about 130.57 meters long will not be used for carrying out construction. The requirement is only of 2.5 meters wide area out of said 50 meters width of the land in all 900 meters length of the green belt for constructing pillars to support the metro line as the entire metro line is on elevated system and not underground. It is claimed that answering Respondent No.6 have obtained necessary permission for resultant uprooting of 9 trees and for replanting the same to say that green cover would not be reduced in any manner. As averred in the reply, this strip of green belt falling within the area of particular society does not belong to the society but is of HUDA. Reference in this regard is made to the condition, already reproduced above, contained in the conversion licence. Reliance is placed on the provisions of Section 3(3)(iii) of the Act and Rule 11(d) of the Rules in support of the stand reflected in the reply. It is stated that the petitioners have an alternative remedy under Section 19 of the Act as the HUDA has taken over possession of the green belt area. Respondents state that they have undertaken the construction, installation and maintenance of the metro rail in Gurgaon, which is in the larger public interest and are under obligation to complete the project within two and a half years, failing CIVIL WRIT PETITION NO.19638 OF2010 (O&M) :{ 10 }: which they are liable to pay damages. The project, when complete, shall connect Sikandarpur Station of Delhi Metro to National Highway-8 and would provide metro service to residential area and office area near the National Highway. The project is being developed on public private partnership basis and is valued at `1084 crores. The project is registered with United Nationals Frame Work of Convention of Climatic Change and is approved by Ministry of Environment and Forest, Government of India. Once implemented and commissioned, Gurgaon metro will reduce air pollution by reducing the vehicular traffic on arterial route and sector roads of Gurgaon, leading to estimated reduction of CO2 of 30000 to 40000 tones per year. It is accordingly urged that the intention and contention of the petitioners is myopic and self centered aimed at personal gains and, thus, it is pleaded that it be rejected. Just to give an indication of real intention of the Society, reference is made to a letter written by petitioner-society on 4.11.2009, requesting respondent No.2 for grant of approval for providing 12 meters wide service road in the same green belt connecting it with 30 meters wide road as approved layout plan of the Society. This was not provided for. It is as such, stated that on the one hand Society itself had sought the use of this green belt to construct service road and on the other hand, has filed the parallel proceedings against the action of taking over of small portion of 2.5 meters long strip for construction of pillar for elevated metro line. It is also disclosed that the present petition is outcome of in fighting amongst the office bearers of the Society and has referred to the CIVIL WRIT PETITION NO.19638 OF2010 (O&M) :{ 11 }: decision of the Management Committee of the Society in rejecting the so called report of Hari Jai Singh Committee. Prayer is accordingly made to dismiss the writ petition. I have heard the learned counsel for the parties. First contention raised by learned counsel for the petitioners is that Section 3(3)(a)(iii) of the Act is with the intend and object for the purpose of maintenance by local authority. Local Authority is defined under Section 2(j), which is Municipal Committee, Municipal Council or Municipal Corporation. It is accordingly stated that Director, Town and Country Planning is not a competent authority as this land could only be transferred for maintenance and upkeep of all roads and open spaces. It is only a part of Section being highlighted to make this submission. Sub-section (2) of Section 3(3) envisaged an enquiry by the Director at the time of grant of licence and provides that Director shall grant a licence in a prescribed form after the applicant has furnished to the Director a Bank Guarantee equal to 25 per centum of the estimate cost of the development work in the area of the land divided or proposed to be divided into plots or flats for residential, commercial or industrial purpose and a bank guarantee equal to thirty seven and a half per centum of the estimated cost of development work in case of cyber city or cyber park as certified by the Director. Then a provision is made in Section 3(3)(a)(iii) of the Act for responsibility for maintenance and upkeep of roads etc., which is for a period of five years from the date of issue of completion certificate unless earlier relieved of this responsibility. The part CIVIL WRIT PETITION NO.19638 OF2010 (O&M) :{ 12 }: underlined is important to notice. Once relieved of responsibility, the transfer of all roads, open spaces, public parks are to be transferred free of cost to the Government or local authority. The submission that the maintenance is to be done by the local authority is being made while ignoring the contents of the provision. The responsibility of maintenance, if relieved, can lead to transfer of such areas free of costs to the Government or the local authority and, thus, the Government has power to transfer this land to itself and it was so provided in the terms and conditions of the allotment. Reference here can be made to the conversion licence, as per which the Society would be under an obligation to abide by the directions of Director, Town and Country Planning for modification of lay out plan of the Colony. The permission was granted to the Society vide licence No.4 of 1991 on 12.12.1991 on the following condition:- “(1)...... (2)That for proper planning and integration of services in the area adjacent to the colony, the society shall abide by the directions of Director Town & Country Planning for modification of layout plan of the colony. (3)...... (4)...... (5)...... (6)the land falling under the portion of the 50 meter wide green belt along the National Highway shall be transferred free of cost to the Government in terms of Section 3(3)(a)(iii) of the Act No.8 of 1975, in addition CIVIL WRIT PETITION NO.19638 OF2010 (O&M) :{ 13 }: to the transfer of other roads, open spaces, public parks and public health service as required under the said provision of the Act.” It is, thus, clear that this 50 meters wide green belt was left on the condition that it will be transferred free of cost to the Government in terms of Section 3(3)(a)(iii) of the Act in addition to transfer of other roads, open spaces etc. Even the completion certificate was issued on the following conditions:- “5. The land under the service road/green belt shall be transferred free of cost to HUDA/Local government as the case may be.” Thus, to urge that this land or part of the same could not be transferred to the Government would be totally misconceived and misplaced. Reference can here be made to the undertaking, which was required to be given in terms of Rule 11 (d) of the Rules reproduced above, whereby the Society had undertaken to transfer this land free of cost to the Government or the local authority. The submission that Section 3(3)(a)(iii) has been wrongly invoked can not, therefore, be accepted. If the Society had any grievance to make in this regard, it should have been done at the time of grant of licence or at the time when the Society was required to give this undertaking. I am, thus, not inclined to accept this line of submission. Otherwise also, this rail system is meant for the entire town and would advance the interest of public at large. The Society apparently is thinking in a self centered manner, which is rightly CIVIL WRIT PETITION NO.19638 OF2010 (O&M) :{ 14 }: termed as myopic. The petitioner-Society is raising all such frivolous objections and the issue, when viewed in proper perspective, would show that only a strip of 2.5 meters in width out of 50 meters of the green space is going to be utilized and that too not in entirety but of a diameter of the size of a pillar meant to have a RMRG on elevated platform. The counsel for respondent No.6 has made reference to the photographs indicating the present state of this green belt. If this is the state of greenbelt, which is in shambles, then it can not be termed `green', in any manner. It is full of dirt, where cars are seen parked. Heavy transmission lines are shown erected in the space, which is being referred as `green belt'. A pillar to construct to elevate metro rail system is not going to make any difference to the use of this negligible area of green belt. The interest of some members of the Society, even if any, must yield before the larger public interest. Concededly, this metro rail is going to connect the town with the rail metro system and would benefit the entire town. The other Societies, which were having a green belt along this route, have not raised any objection. It is only the petitioner-Society, which is having interest in area of 130 meters in length that it has come forward to raise this challenge. Non-serious nature of this challenge can be made out from the fact that the counsel appearing for the Society had submitted in the course of his argument that the land if so needed, should be acquired and compensation paid to the Society. Obviously, the Society is not having any serious intention to preserve this area as a green belt. As already noticed, the Society itself had earlier CIVIL WRIT PETITION NO.19638 OF2010 (O&M) :{ 15 }: moved an application for constructing 12 meter wide road in this green belt area whereas it is now objecting to the use of negligible area for erecting pillar, which is meant for the benefit of the entire town. It appears that the cause, through present writ petition, has been espoused only by some of the members of the Society. Four individual members have filed this writ petition to make this grievance. The contents of the reply would show a dispute between the members of the Society. The report given by Sub Committee headed by Mr.Hari Jai Singh was rejected by the Management Committee of the Society in its resolution passed on 24.9.2010, copy of which has been annexed with the reply. In fact, this can be so made out from the averments made in the writ petition itself, where it is mentioned that most of the Members and some of the office bearers were not aware of the so called illegal activities and that the petitioners have collected various documents and formed a Sub- Committee under Mr.Hari Jai Singh, who has given this report. No mention is made to the rejection of this report by the Management Committee, which has now been annexed with the reply. Perhaps to tide over this difficulty, some application was filed through Sh.Akshay