Punjab-Haryana High Court
Darshan Kaur And Others vs State Of Punjab And Others on 10 December, 2013
Author: Augustine George Masih
Bench: Sanjay Kishan Kaul, Augustine George Masih
CWP No. 22225 of 2013 (O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CWP No. 22225 of 2013 (O&M)
Date of Decision: 10.12.2013
Darshan Kaur and others
..PETITIONERS
VERSUS
State of Punjab and others ..RESPONDENTS
CORAM: HON'BLE MR. JUSTICE SANJAY KISHAN KAUL, CHIEF JUSTICE
HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH, JUDGE
PRESENT: Mr.N.S.Shekhawat, Advocate,
for the petitioners.
Mr. Harsimran Singh Sethi, Additional Advocate General,
Punjab.
AUGUSTINE GEORGE MASIH, J.
This writ petition has been preferred by persons who are residents of various colonies in Phagwara, which are admittedly unauthorized colonies and are challenging the notification dated 21.08.2013 (Annexure P-1) issued by the State of Punjab terming it to be illegal, unjust, unconstitutional and arbitrary.
It is the contention of the counsel for the petitioners that the notification under challenge is a policy framed by the Government of Punjab while implementing the provisions of the Punjab Laws (Special Provisions) Act, 2013, which provides for compounding of violations of the unauthorized colonies by punishing the violaters by way of imposing suitable charges/fee in order to compound their offences and for those Datta Prerna 2013.12.19 12:20 I attest to the accuracy and integrity of this document High Court, Chandigarh CWP No. 22225 of 2013 (O&M) 2 individuals who have been entrapped by unscrupulous colonizers so that they can be provided the basic amenties at the costs fixed. This policy, which has been formulated, cannot withstand the test of equality as laid down under Article 14 of the Constitution of India and elaborated by the Supreme Court in the judgment of D.S.Nakara vs. Union of India, AIR 1983 Supreme Court 130. The test of permissible classification, which must be founded on an itelligible differentia which distinguishes persons or things grouped together from those who are left out, is violated. Further, there is no rational relation to the objectives sought to be achieved by the policy as the classification is not only unjust but without any basis. On this principle, he also asserts that the cut off date of 17.08.2007 fixed for prescribing different rates for composition fee for regularization of unauthorized colonies provided for constructions made prior to and after this date, is totally arbitrary and without any basis and thus, cannot sustain. There is no rationale for fixing the said date and is devoid of the nexus with the objectives sought to be achieved by the said policy. He submits that the same charges should have been taken from all the residents/developers of the unauthorized colonies.
His submission is that the method of calculating the regularization charges, as provided for in the policy, is arbitrary on the ground that it takes the mid values for the plots. A person, who owns 50 square yard, will have to pay charge for 75 square yards plot whereas a person, who owns 100 square yards, will only have to pay charge for 75 square yards, which is discriminatory and violative of the equality clause. The cost of regularization should have been based upon the actual size of the individual plot holder. The smaller plot holders have unnecessarily been burdened by implementing the said methodology of averaging, as has been adopted in the policy.
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He contends that the basic purpose for the policy, as has been enumerated, is aimed at securing the welfare of the general public and for that making development in unauthorized colonies for which the charges are collected and ought to be spent for the said purpose. His submission is that the unauthorized colonies have been categorized into three different groups and for each group, a different criteria has been laid down with a further rider that the civil amenties would be provided to a colony after more than 70% of the residents opting for regularization charges. Even if a person opts for the benefit of the regularization and deposits the charges under the policy, he may be denied the basic amenties. There is no distinction between the colonies, which have already been fully developed, undeveloped or being developed.
The policy has also been challenged to be aimed at benefitting the developers of illegal/unauthorized colonies paying scant regard for the interests of the individual plot holders as developers are being charged very less whereas the individual plot holders have to pay much more. A factual averment has been made that the petitioners, who are residents of the various unauthorized colonies in Phagwara, had built their houses since 1975 onwards and in most of the colonies, the basic amenties are available, therefore, there is no justification on the part of the Government for charging huge amounts as regularization fee without any reasonable justification.
On the basis of these grounds, counsel asserts that the impugned notification dated 21.08.2013 deserves to be quashed.
The case came up for hearing on 11.10.2013 when following order was passed:
" We have put to learned counsel for the petitioners that the impugned notification dated 21.8.2013 actually seeks to Datta Prerna 2013.12.19 12:20 I attest to the accuracy and integrity of this document High Court, Chandigarh CWP No. 22225 of 2013 (O&M) 4 give a clothe of legality to the unauthorized and illegal construction carried out by the petitioners and similar persons and, thus, really is favourable to them. However, learned counsel seeks examination of this policy and various parameters, an aspect which is not possible to decide without calling for a response. This is so as according to learned counsel for the petitioners, the composition fee/regularization charges should be based only on the area occupied irrespective of the time period when the construction has been made.
We, thus, call upon the State of Punjab to file an affidavit explaining the rationale of the differential composition fee/regularization charges within four weeks.
We, however, make it clear that no benefit would be available to a person who does not deposit the charges as per the impugned notification within the time prescribed.
A complete set of the paper-book be supplied to Mr. Harsimran S.Sethi, Additional Advocate General, Punjab during the course of the day.
List on 20.11.2013.
Copy dasti under the signature of the Bench Secretary."
In response to the above order, the State of Punjab has filed an affidavit and relying thereon, learned Additional Advocate General submits that the State of Punjab had enacted the Punjab Apartments and Property Regulations Act, 1995 (hereinafter referred to as '1995 Act') with an intention to check, control and regulate the activities of private colonizers and to protect the interest of the citizens of the State which Datta Prerna 2013.12.19 12:20 I attest to the accuracy and integrity of this document High Court, Chandigarh CWP No. 22225 of 2013 (O&M) 5 primarily is for overall development of the State. As per this Act, all private colonizers were required to get themselves registered as promoter with the authority, get the layout plans of the land/apartments approved and after getting a license from the competent authroities, sell the same to the general public. External Development Charges (EDC) on per acre basis were fixed with an intention to provide the necessary amenties like water supply, electricity, sewerage connection up-to the site where the private colony was to be set up. Till 2007, the EDC were ` 1.5 lacs to ` 3.5 lacs per acre as per the classification of the town/area. In the year 2007, the State Government divided the entire State (except Greater Mohali Area Development Authority) into different potential zones and imposed specific EDC, converstion charges and license/permission fee vide notification dated 17.08.2007. These charges were revised vide notification dated 19.09.2007, which were further partially revised vide notification dated 29.06.2010. A notification dated 06.05.2013 was issued further revising these charges. As per the above decision, as brought out from record, till 2007, only the EDC charges were being levied on the private colonizers but after 2007, as per the policy of the Government, conversion charges and license/permission fee, in addition to EDC charges, were required to be paid. This explains the cut off date of 17.08.2007 fixed for having different rates as regularization charges.
He states that a detailed survey was got conducted for identifying illegal colonies and after the said survey, a policy has been formulated vide notification dated 26.06.2013 (Annexure R-6). While implementing the said policy, the individual plot owners and colonizers/associations of Punjab raised various issues pertaining to implementation and charges prescribed for regularization of plots and compounding of offences. A committee comprising of three Ministers and Datta Prerna 2013.12.19 12:20 I attest to the accuracy and integrity of this document High Court, Chandigarh CWP No. 22225 of 2013 (O&M) 6 a Chief Parliamentary Secretary was constituted to review the policy on the issues raised. On re-consideration of the same, the policy was re-framed and notified on 21.08.2013 as one time measure making it very explicit, clear and simple bringing in transparency to remove all doubts. The policy has been formulated to ameliorate the living conditions of the residents/owners in these unplanned and unapproved colonies to provide livable conditions by making available the basic amenties. His submission is that the petitioners are law breakers and as a moratorium, this policy has been floated by the Government with an intention to give an opportunity to one and all to get their colonies/flats/plots regularized on payment of suitable charges/fee in order to compound their offences and in failure to do so, face the consequences. The policy decision is a domain of the Government which should not be interfered by the Court and in any case, he submits that the violations, which are sought to be projected as being unequitable, unjust and illegal, are not sustainable as reasons have been provided in the policy itself and the explanation, as has been submitted by the State in its affidavit. Accordingly, a prayer has been made for dismissal of the writ petition.
We have considered the respective submissions made by the counsel for the parties and having gone through the records, we are of the view that the challenge to the notification dated 21.08.2013 cannot be sustained.
Although on 11.10.2013, we had restricted the response of the respondents to explain the rationale of the differential composition fee/regularization charges, however, on hearing the counsel, we do not find any merit in the present writ petition on other aspects also as raised by the counsel for the petitioners.
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The Punjab Apartments and Property Regulations Act, 1995 was enacted to safeguard the interest and rights of the individual buyers of plots/flats from the private colonizers and, therefore, checks, controls and regulations of such activities of the private colonizers were imposed in the said Act. The Act provides for registration as promoter, submission of lay- out plans of land/apartments, on approval thereof, getting a license from the competent authority before the said plots/flats could be made available to the general public for sale. So as to ensure that the basic amenties are made available such as water supply, electricity and sewerage connection, EDC charges on per acre basis were fixed. On such deposit, the authorities were to provide these basic facilities up-to the colony sought to be developed by the promoter. This process of depositing of EDC continued til 17.08.2007, which charges were based upon per acre of land varying from ` 1.5 lacs to ` 3.5 lacs depending upon the class of the town where the land/colony was to be developed. Vide notification dated 17.08.2007, the State Government introduced two other charges apart from the EDC i.e. conversion charges and license/permission fee apart from dividing the entire State except GMADA into different potential zones. These charges were revised from time to time.
It would not be out of way to mention here that under the 1995 Act, violation of the conditions therein would result in not only fines but even imprisonment. The State of Punjab amended the Punjab Apartments and Property Regulations Rules, 1995 (hereinafter referred to as '1995 Rules') vide notification dated 09.12.2010 issued under the 1995 Act by incorporating provisions for compounding of offences in the Rules. In Rule 31(3), certain conditions were laid down for compounding of offences for being eligible for the said benefit. Since the enactment of the 1995 Act, Datta Prerna 2013.12.19 12:20 I attest to the accuracy and integrity of this document High Court, Chandigarh CWP No. 22225 of 2013 (O&M) 8 more than 15 years have passed by when the amendment in the 1995 Rules was brought out. It was found that numerous unauthorized colonies have come up in the State of Punjab and the amendments under the Rules had not been able to meet the desired results. A detailed survey was got conducted of unauthorized colonies in the State, which were identified as 5340 spread over 20600 acres of land in various cities and towns and now, it was found to be around 10,000 approximately covering 40,000 acres of land. Apart from these, a number of scattered buildings of different categories also came up without approval of the competent authorities. It was found that these buildings/plots/colonies were not only defeating the very objective of planned development but were affecting the planned extention of services and amenties by the authorities.
This led to the enactment of The Punjab Laws (Special Provisions) Act, 2013, which was intended to bring all these unplanned areas into the fold of planned development and to provide basic amenties with an intention to ensure better quality of life to the public. Under this Act, a one time regularization policy was framed and notified on 26.06.2013 and while implementing the same, certain difficulties were observed by the individual plot owners, colonizers and Punjab Colonizers' Association, therefore, they made representations and raised various issues. These pertained to implementation of the policy, charges prescribed for regularization of plots and compouding of offences. Accordingly, the Committee constituted by the State went into the details of the earlier policy and re-framed the same keeping in view the said difficulties as projected and formulated the present policy dated 21.08.2013, which has been notified.
The above factual position clearly demonstrates that the present policy, which has been framed by the Government, is a one time Datta Prerna 2013.12.19 12:20 I attest to the accuracy and integrity of this document High Court, Chandigarh CWP No. 22225 of 2013 (O&M) 9 benefit being given to the individual plot/flat owners and colonizers to regularize the irregularities committed by them being violations under the 1995 Act, for which penal consequences have been provided. The present policy is a concession, which has been given by the Government to the law breakers giving them an opportunity to crystalize their erstwhile fluid rights. Mercy seekers cannot impose their own conditions as it is not to be claimed as a matter of right and in any case, not on the terms on which they are claiming that the said concession be given to them.
The basic ground of challenge to the impugned notification was the alleged irrational basis for fixing two different rates by taking 17.08.2007 as the cut off date, which would violate Article 14 of the Constitution of India. This ground does not survive in the light of explanation submitted by the respondents through their affidavit, wherein they have explained the rationale behind the different composition fee and regularization charges by asserting that prior to 17.08.2007, the colonizers had only to pay the EDC as prescribed per acre and as per the class/town of the city and no change of land use/license fee/permission fee was levied. However, after the said date, not only the EDC but change of land use, license fee/permission fee was charged additionally and the same was revised from time to time as pointed out in the said affidavit. The charges levied by the Government for the development of new residential colony prior to 17.08.2007 were partially lower than the charges levied by the Government after 17.08.2007, which was taken into consideration and found the basis for fixing the charges for regularization of un-authorized colonies/plots at different rates. This justification, as given by the respondents, passes the test of reasonableness justifying the differentia for the classification, which has nexus with the objectives sought to be achieved while implementing the policy.
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The challenge with regard to the method of calculation for regularization of the charges also cannot be said to be unjust or without any basis as the calculation itself justifies the reasoning, which has been put forth in the policy itself. In any case, this is the exclusive domain of the executive which having been found to be exercised in a justifiable manner cannot be gone into by the Court when there is no apparent and patently arbitrary action found therein which would require interference by this Court. The methodology of taking the average of the plot size as mid value, which has been sought to be termed as unreasonable, has been found to be just and equitable as the same is an accepted and commonly resorted method of calculation which thus does not call for interference by the Court.
The policy decision of the Government generally is not to be interfered with unless the same is totally unreasonable, irrational, arbitrary or violative of the Constitution or the Statute. We have not found the said policy to be impinging upon any of these tests, which would enable this Court to interfere with the policy decision of the State challenged herein.
The writ petition, therefore, being devoid of any merit stands dismissed.
(SANJAY KISHAN KAUL) (AUGUSTINE GEORGE MASIH)
CHIEF JUSTICE JUDGE
December 10, 2013
pj
Referred to Reporter-Yes.
Datta Prerna
2013.12.19 12:20
I attest to the accuracy and
integrity of this document
High Court, Chandigarh
CWP No. 22225 of 2013 (O&M) 11
Datta Prerna
2013.12.19 12:20
I attest to the accuracy and
integrity of this document
High Court, Chandigarh