Women Education Trust And Another vs State Of Haryana And Another on 28 January, 2011

[Cites 24, Cited by 46]

Punjab-Haryana High Court

Women Education Trust And Another vs State Of Haryana And Another on 28 January, 2011

Author: Rakesh Kumar Garg

Bench: Jasbir Singh, Rakesh Kumar Garg

CWP No.18 of 2004 (O&M)                      1

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

                                  CWP No.18 of 2004 (O&M)
                                  Date of decision: 28.1.2011


Women Education Trust and another                  ......Petitioner(s)

                              Versus

State of Haryana and another                       ......Respondent(s)


                                  CWP No.3005 of 2006 (O&M)


Vinod Kumar                                  ......Petitioner(s)

                              Versus

State of Haryana and others                  ......Respondent(s)



                                  CWP No.3274 of 2004 (O&M)

Jai Chand                                    ......Petitioner(s)
                              Versus

State of Haryana and others                  ......Respondent(s)



                                  CWP No.10888 of 2010 (O&M)

Dr. Charu Gupta and others                   ......Petitioner(s)
                              Versus

State of Haryana and others                  ......Respondent(s)


                                  CWP No.10006 of 2010 (O&M)

Prem Parkash                                 ......Petitioner(s)
                              Versus

State of Haryana and others                  ......Respondent(s)


                                  CWP No.10887 of 2010 (O&M)

Pritam Singh                                 ......Petitioner(s)

                              Versus
 CWP No.18 of 2004 (O&M)                       2



State of Haryana and others                   ......Respondent(s)

                                  CWP No.10880 of 2010 (O&M)

Subhash Chahal                                ......Petitioner(s)

                              Versus

State of Haryana and others                   ......Respondent(s)


                                  CWP No.17206 of 2005 (O&M)

Roshan Lal Dhanda and another                 ......Petitioner(s)

                              Versus


State of Haryana and others                   ......Respondent(s)


                                  CWP No.3745 of 2004 (O&M)

Gulshan Kumar and another                     ......Petitioner(s)
                              Versus

State of Haryana and others                   ......Respondent(s)



                                  CWP No.11558 of 2010 (O&M)

Balbir Singh and another                      ......Petitioner(s)
                              Versus

State of Haryana and others                   ......Respondent(s)



CORAM:-    HON'BLE MR.JUSTICE JASBIR SINGH
           HON'BLE MR.JUSTICE RAKESH KUMAR GARG

                      * * *

Present:   Mr. O.P. Goyal, Sr. Advocate with Ms. Ranjeeta Gill, Advocate
           Mr. Arun Jain, Sr. Advocate with Mr. Rakesh Nagpal,
           Advocate,
           Mr. S.K. Garg, Narwana, Advocate,
           Mr. Pritam Saini, Advocate,
           for the petitioners.

           Mr. Kamal Sehgal, Additional Advocate General, Haryana.
 CWP No.18 of 2004 (O&M)                           3


            Mr. Gitish Bhardwaj, Advocate for Mr. Arun Walia, Advocate
            for HUDA.



Rakesh Kumar Garg, J.

This judgment shall dispose of 10 writ petitions i.e. CWP Nos.18, 3274, 3745 of 2004, 17206 of 2005, 3005 of 2006, 10006, 10880 10887, 10888, 11558 of 2010 as, on similar facts and grounds, the acquisition of the land of the petitioners vide the same notifications has been challenged. However, for the sake of convenience, facts are being culled out from CWP No.18 of 2004.

As per the averments made in this writ petition, the petitioner No.1 is a public charitable trust which was created with the aims and objects of women empowerment through education. The petitioner-Trust purchased land comprised in Khasra No.136/14/2 by way of registered sale deed dated 19.2.2001, Khasra No.136/5/2/1, 136/6 and 136/15/1 by way of registered sale deed on 28.2.2001 and a part of Khasra No.136/14/2 by way of registered sale deed dated 26.3.2001.

It is the further case of the petitioners that construction of the building for school upto VIIIth Class in the name and style of Silver Oak Public School was started with effect from 23.4.2001 and the same was completed in June, 2002. The nature of the construction of the school building is A-Class. The Silver Oak Public School, which was running in the tents on temporary basis with effect from 1.4.2001 was shifted in the present building in June, 2002. The construction of the building was made under the deemed permission of Municipal Council, Kaithal.

It is further alleged that the respondent issued notification under Section 4 of the Land Acquisition Act, (hereinafter referred to as the 'Act') intending to acquire the land specified in the notification dated CWP No.18 of 2004 (O&M) 4 11.11.2002. The land of the petitioners was also sought to be acquired and was included in the aforesaid notification (Annexure P-6). The petitioner filed objections dated 2.12.2002 under Section 5A of the Act which were duly received. The petitioners received notice for hearing of objections fixed for 19.9.2003 at PWD Rest House, Kaithal. On the stipulated date, petitioner No.2 had reached at PWD Rest House, Kaithal. Many other objectors were also present but the Land Acquisition Collector, Kaithal was not present. The objections were heard by one Raj Bir Patwari who also got signed the statement of petitioner No.2. It was specifically stated that no hearing was provided by the Land Acquisition Collector as he was absent at the time of hearing of the objections. Thereafter, respondents issued notification (Annexure P-9)under Section 6 of the Act on 7.11.2003 including the land of the petitioners. However, certain other areas where buildings were constructed were left out.

It was further averred by the petitioners that there was a policy dated 26.6.1991 (Annexure P-10) issued by the respondents to the effect that existing factories should not be acquired and should be released from proceedings under Section 4 Notification with further instructions that constructed area of A and B grade should be left out of acquisition.

On the basis of the aforesaid facts, the petitioners filed the instant writ petition challenging the notifications Annexures P-6 and P-9 alleging discrimination, violation of Government Policy and non-providing of opportunity of hearing on objections filed under Section 5-A of the Act.

On 6.1.2004, at the time of preliminary hearing, this Court passed the following order :

"On the basis of pleadings and photographs, that have been annexed with the present petition, learned counsel contends that a running school has been acquired in which 203 students are being imparted CWP No.18 of 2004 (O&M) 5 education. This is not only against the policy of the Government but further that objections filed under Section 5A of the Land Acquisition Act were not at all heard by the competent authority.

Notice of motion for 1.3.2004.

Stay dispossession meanwhile."

The respondents filed written statement contesting the claim of the petitioners submitting therein that the acquisition proceedings were carried out in accordance with law and the objections under Section 5-A of the Act were disposed of after giving full opportunity of hearing. It was specifically averred that after giving full opportunity of hearing, the Land Acquisition Collector, made a report on individual objections and sent them to the Government for final decision and after receiving the report from the Government, the declaration was issued. It was also submitted that the objections were heard by the Land Acquisition Collector at PWD Rest House, Kaithal and the stand taken by the petitioners in this regard was false. It was further pointed out that only 0.75 acre land which was a religious place was left out from acquisition and the land of the petitioners was falling in the 100 meter wide green belt running parallel to the Kaithal Bye Pass road as shown in Annexure R-2, and, the same could not be released from acquisition.

It may also be relevant to mention that on an application, vide order dated 27.5.2004, HUDA was permitted to be impleaded as respondent No.3. Replication was filed by the petitioners to the written statement. Certain documents were also placed on record as Annexures P- 15 to P-18 vide CM No.20322 of 2005 which was allowed on 1.12.2005.

During the course of arguments, on 28.4.2007, this Court passed the following order:

"Various site-plans including the one prepared by the CWP No.18 of 2004 (O&M) 6 Revenue Authorities have been examined with the help of Revenue Officials, who are present in the Court.

There is no doubt that a green belt on both sides has been carved out alongside the road which connects two existing highways on both sides of acquired land.

However, the green belt which is stated to cover the petitioners' school, also covers nearly 17-18 acres of land for the Police Lines. Therefore, unless the respondents include the land for Police Lines, they simply cannot, in all fairness, include the School in the green belt because between the School and the road, exists some portion of Police Lines.

Faced with this situation, learned counsel for the respondent-State seeks time to obtain instructions to clarify the position.

To come up on 22.5.2007."

On 28.9.2007, on the submissions of learned counsel for the petitioners, the following order was passed:

"Learned senior counsel for the petitioners submits that till April 2003, no permission was required to run unaided private schools. He further submits that under the Land Acquisition Act and the Rules, only 30 meters green belt is required to be maintained on the national highway and on bye-pass, it is 100 meters. He also submits that in the adjoining sector, a 30 meters green belt has been left, whereas in the sector, in question, a 100 meters green belt has been made.

In view of the aforesaid, learned Additional Advocate General, Haryana, prays for and is granted a week's time to file an additional affidavit with site plan.

Adjourned to 12.10.2007.

It is also relevant to mention that an affidavit of Mr. Ram Kumar, District Town Planner, Kaithal, Department of Town and Country Planning, Haryana dated 16.11.2007 was filed by the respondent which reads as follows:-

"1. That a school in the name of M/s Women CWP No.18 of 2004 (O&M) 7 Education Trust, Kaithal (Petitioner) is running in sector- 32, Kaithal. The site in question falls within the controlled area Kaithal, declared under Sub-Section 1 of Section 4 of the Punjab Scheduled Roads and Controlled Areas Restriction of Unregulated Development Act, 1963 on 25.8.1971. The land in question has been acquired for green belt adjoining Sector 19, 20, Kaithal.

2. That the peripheral road/Bye Pass road with 100- meters wide green belt on both sides was reserved in the published Draft Development Plan 2021 AD for Kaithal, Drg. No.KTL-136/2006, dated 9.10.2006 (Copy attached as Annexure R/1), which is shown in green colour. The site of petitioner in question is shown in Black colour on the attached Draft Development Plan 2021 AD Kaithal and Shazra Plan of Sector 19-20, Kaithal.

3. That the road abutting the land in question is known as V-1 Road and according to the Draft Development Plan 2021 AD published on 4.4.2007, 75- meter wide road with 100-meter green belt on both sides has been provided. Following is the extract: "(1) Land reservation for major roads marked in the Drawing shall be as under:-

                              V-1           75 mtrs width with 100 metres green
                          1                 belt on both sides
                              V-1(a)        Existing width with 45 metres green
                          2                 belt on both sides
                            V-1(b)          Existing width with 60 metres green
                            National        belt on both sides
                          3 Highway-65
                          4 V-1(c )         Existing width with 45 metres green
                                            belt on both sides
                          5 V-1(d)          Existing width
                          6 V-1(e)          Existing width with 45 metres green
                                            belt on both sides
                          7 V-1(f)          Existing width
                          8 V-1(g)          Existing width with 60 metres green
                            National        belt on both sides
                            Highway-65
 CWP No.18 of 2004 (O&M)                                 8

                               V-1           75 mtrs width with 100 metres green
                           1                 belt on both sides
                           9 V-1(h)          Existing width with 30 metres green
                                             belt on both sides
                          10 V-1(i)          Existing width
                          11 V-1(j)          Existing width
                          12 V-1(k)          Existing width
                          13 V-3             45 metres




                        (2)      Width and alignment of other roads shall be

as per sector plans or as per approved layout plans of colonies.

(3) The area under green belt and sector roads shall not be included under 'net planned area' while approving layout plans for colonies to be developed by HUDA and private developers. The FAR and saleable area shall continue to be permitted only on the net planned area."

4. That the structure (Site Plan attached as Annexure R/2) in question is unauthorized and Change of Land Use permission has not been obtained from the Director, Town and Country Planning, Haryana under Punjab Scheduled Roads and Controlled Areas Restriction of Unregulated Development Act, 1963, before raising of the structure.

5. That 100-meters wide green belt along peripheral road/Bye pass road in the adjoining sector 19 & 20 have also been provided as per published Draft Development Plan 2021 AD for Kaithal and maintained."

It is also relevant to refer to the order dated 27.2.2008 passed by this Court which reads as follows:

"Learned State counsel while placing reliance upon a policy of the State Government framed on 26.10.2007, has submitted that in case where where is interim order of stay granted by this Court, the petitioner whose land has been acquired, is entitled to consideration by Director, Urban Estates and CWP No.18 of 2004 (O&M) 9 accordingly, it has been submitted that the petitioner may appear before the Director, Urban Estates (Haryana), Yojna Bhawan, Madhya Marg, Sector 18-A, Chandigarh on 24.3.2008 and 25.3.2008 at 10:00 A.M and his case shall be considered by taking into account the claim made in the writ petition by treating it as a representation.

Put up for further consideration on 10.4.2008. If any decision is taken, the same shall be placed on the record by the said date.

Copy of this order be given to learned State counsel under the signatures of Court secretary.

Copy of this order be also given dasti by tomorrow to learned counsel for the petitioners on payment of usual charges.

A photocopy of this order be placed on the file of each connected case."

In pursuance of the aforesaid order, the Director, Urban Estates Department Haryana, Chandigarh passed an order dated 5.4.2008 which was placed on record of the case. The operative part of the aforesaid order reads as follows:

"In pursuance of these orders, on behalf of the petitioners of CWP No.18 of 2004, Shri Kamlesh Chaudhary, Chairman of the Women Education Trust appeared on 24.3.2008.

The representative for the petitioners stated that they have deposited 73772/- as development charges to Municipal Council, Kaithal on 28.2.2001 and further stated that house tax is also being charged by Municipal Council, Kaithal. But no proof regarding payment of house tax was produced by the representative for the petitioners. He further argued that permission for change of land use was not obtained by them because the area was not planned and no development plan was prepared at the time of construction. He further stated that the petitioners are the owners of the land measuring 2400 CWP No.18 of 2004 (O&M) 10 Sq.yards bearing Khasra Nos.136//5/2/1, 6 & 15/1 of village Patti Kaisth Seth, Tehsil & District Kaithal on which school building exists & further pleaded that one of the purposes of acquisition is institutional and their building is also for institutional use. He also produced the copies of the judgments passed by the Hon'ble Punjab and Haryana High Court in the cases of United Rice Land Ltd. V/s State of Haryana & Pritam Singh V/s State of Haryana & others in support of his contention of the "protection of school" & "Act No.41 of 1963 does not override Municipal Act" respectively. He further stated that his daughter Dr. Sonali Chaudhary, is highly educated being M.A., Ph.D. And is running this school by constituting a 'Women Education Trust.' District Town Planner, Kaithal along with his staff & Sh. Parkash Chand, Naib Tehsildar from the office of Land Acquisition Officer, Panchkula were also present and produced record pertaining to planning & acquisition.

Sh. Parkash Chand, Naib Tehsildar stated that as per the proceedings of Joint Site Inspection Committee meeting held on 25.6.2003 under the chairmanship of the Administrator, HUDA, Panchkula, this structure was recommended for acquisition. He also stated that the petitioners had filed objections under Section 5-A of the Land Acquisition Act, 1894 and the recommendation of the Land Acquisition Collector is that "as the structure is of 'A' class and a public school is running in it, so it is not proper to acquire this structure/site.

District Town Planner stated that the whole area requested for release falls within 100 meters wide restricted belt of the bye pass to the Ambala-Kaithal- Uklana Fatehabad scheduled road prescribed under section 3 of the 'Punjab Scheduled Roads and Controlled Areas Restriction of Unregulated Development Act, 1963 (Act No.41 of 1963).

I have seen the location of the site on the Sajra CWP No.18 of 2004 (O&M) 11 Plan placed at Annexure 'A'. I have also gone through the scheme of Act No.41 of 1963.

Section 2(3) of the Act ibid gives definition of bye- pass, which is as follows:

2(3) "Bye-pass" means a road provided as a permanent diversion to scheduled road, whether such diversion is situated within or without the limits of a local authority and whether it is constructed before or after the commencement of this Act;

Further Section 3 & Section 7-A of the Act ibid are reproduced below for the better appreciation of the issue at the hand:-

3. Prohibition to erect or re-erect buildings along scheduled roads- No person shall erect or re-erect any building or make or extend any excavation or lay out any means of access to a road within one hundred meters of either side of the road reservation of a bye-pass or within thirty meters on either side of the road reservation of any scheduled road not being bye-pass.

7A Power of relaxation - The Government may, in public interest, relax any restrictions or conditions in so far as they relate to land use prescribed in the controlled area in exceptional circumstances.

The construction has been raised in violation of the provision of Section 3 of the Act ibid. The Act doesn't provide any relaxation for the restrictions imposed under Section 3. The Government is empowered only to relax the land use restrictions in the Controlled area under Section 7-A of the Act ibid as described in the Development Plan prepared under section 5 of the Act ibid.

The construction has been raised after submitting the building plans to the Municipal council. The site is although located in the extended Municipal limits but the land use proposals of the development plan is applicable because the site was part of Controlled area at the time of extension of Municipal limits. This fact has CWP No.18 of 2004 (O&M) 12 been taken note of while making provision in the amended Section 203 of the Municipal Act, 1973. Hence the building plans submitted to the authority, not competent to entertain such matters cannot be considered to be deemed to have been approved. The Municipal Authorities cannot approve the building plans in violation of Section 3 of the Act ibid.

Keeping in view the above mentioned facts and circumstances of the case, I find no ground to consider the release of the above said structure raised in violations of the Act No.41 of 1963. The representation is, therefore, rejected. The party may be informed accordingly."

Thereafter, the following order was passed by this Court on 4.10.2010:

In this writ petition, despite request made, land of the petitioners was not released from acquisition on the ground that construction raised by them falls in the Green Belt. On April 28, 2007, following order was passed by this Court:

"Various site plans including the one prepared by the Revenue Authorities have been examined with the help of Revenue Officials, who are present in the Court.

There is no doubt that a green belt on both sides has been carved out alongside the road which connects two existing highways on both sides of acquired land.

However, the green belt which is stated to cover the petitioners' school, also covers nearly 17-18 acres of land for the Police Lines. Therefore, unless the respondents include the land for Police Lines, they simply cannot, in all fairness, include the School in the green belt because between the School and the road, exists some portion of Police Lines.

CWP No.18 of 2004 (O&M) 13

Faced with this situation, learned counsel for the respondent - State seeks time to obtain instructions to clarify the position."

No response has been filed to the above said order. Furthermore, in CWP No. 17206 of 2005, counsel has drawn our attention to an order passed by Director, Urban Estate Department, Panchakula, Haryana, dated August 16, 2005, (Annexure P-14) ordering release of 85 houses falling in green belt. If that is so, the authorities are to explain as to why the same relief cannot be granted to the petitioners. Counsel for the petitioners states that to save their constructed portion, they are ready to leave as much area adjoining the road already in existence for its convenient use. Counsel has further brought to our notice that vide the Punjab Schduled Road and Controlled Areas (Restriction of Unregulated Development)(Haryana Amendment Act 2009), amendment has been effected in the provisions of Sections 3 and 6 of the Punjab Scheduled Roads and Controlled Areas (Restriction of Unregulated Development) Act, 1963, which would benefit the petitioners because vide that amendment buildings existing before 2009 were saved from application of 1963 Act.

Shri Sehgal is directed to file response to the above said facts. Needful be done within a period of three weeks from today.

Adjourned to October 28, 2010.

Copy of this order be supplied to the State counsel under signatures of the Court Secretary.

Copy of this order be placed on the files of the connected cases."

In compliance of the aforesaid orders, an affidavit was filed on CWP No.18 of 2004 (O&M) 14 behalf of the respondents, which was also taken on record. The relevant part of the said affidavit reads as follows:-

"1. That the above subjected CWPs are pending before this Hon'ble Court and the same being connected matters are being heard jointly. The land of the petitioners in above said CWP's was notified u/s-4 dated 11.11.2002 for development and utilization of land for purpose commercial, professional, institutional and for green belt, notified u/s-6 dated 7.11.2003 and the award was announced on 31.10.2005. On the last date of hearing i.e 9.11.2010 this Hon'ble Court was pleased to direct the respondents to file specific affidavit in compliance of the order passed by the Hon'ble High Court on 4.10.2010. The present affidavit is thus being filed in compliance of said directions of this Hon'ble Court.

2. That vide order dated 4.10.2010 this Hon'ble Court had directed the respondents to file response to the observations of this Hon'ble Court in its order dated 28.4.2007. In the said order it was observed by this Hon'ble Court that "the green belt which is stated to cover the petitioners' school also covers nearly 17-18 acres land for the Police Lines. Therefore, unless the respondents include the land for Police Lines, they simply cannot, in all fairness, include the School in the Green belt because between the School and the road, exists some portion of Police Lines".

Regarding the said observation it is submitted that the total area of the petitioners which has been acquired and which falls in the green belt and belt reserved for road widening is as under:-

CWP No.18 of 2004 (O&M) 15

Sr CWP No. Total area Total Area under Area under No and name of the constructe Green Belt belt petitioner d area as per reserved for which has Developme Road been nt plan widening as acquired per Developme nt Plan.

               1   CWP       2400 sq Yd 2400 sq 2400 sq yd
                   No.18 of (approx)    yd       (approx)
                   2004-                (approx) (i.e 100%)
                   Women
                   Education
                   Trust V.
                   State of
                   Hr.
               2   CWP         7320 sq yd 2619 sq 1228 sq yd
                   No.3274 (approx)       yd       (approx)
                   of 2004-               (approx)
                   Jai Chand
                   v. State of
                   Haryana
               3   CWP      480 sq yd 480 sq yd                480 sq yd
                   No.3745 (approx)   (approx)                 (approx)
                   of 2004-                                    (i.e 100%)
                   Gulshan
                   Kumar v.
                   State of
                   Haryana
               4   CWP       2034 sq yd 2034 sq 204 sq yd 1830 sq yd
                   No.17206 (approx)    yd       (approx) (approx)
                   of 2005-             (approx)
                   Roshan
                   Lal    v.
                   State of
                   Haryana
               5   CWP      1119 sq yd Nil
                   No.3005 (approx)    Vacant
                   of 2006-            site
                   Vinod
                   Kumar v.
                   State of
                   Haryana

It is pertinent to mention here that the answering respondents had acquired land measuring 82.80 acres vide Award No.8 of 31.10.2005 for development of road widening of existing bye pass/N.H 65, green belt and commercial purpose as per the published Draft Development Plan 2021 AD, Kaithal.

The area for Police Lines was not acquired by the CWP No.18 of 2004 (O&M) 16 answering respondents and the same has been acquired by the Home Department vide separate notification. Details of the said acquisition are not available with the answering respondent as Home Deptt is not a party in the present writ petitions. However, it is significant to mention here that since the Draft Development plan 2021 for Kaithal has already been published, hence the Police Line would have to be developed as per the said development plan i.e. the area which falls in the Green belt would have to be maintained as such and no construction can be raised in the said area. Hence the case of the petitioners cannot be equated with that of the Police lines as in case of the petitioners they have already raised construction in the area which falls under the Green belt or belt reserved for Road widening. In fact in case of CWP No.18 of 2004- Women Education Trust Vs. State of Hr, the entire area falls in the Green belt and the entire area of CWP No.3745 of 2004-Gulshan Kumar Vs. State of Haryana falls in belt reserved for road widening as mentioned above.

3. That it is also pertinent to mention here that in CWP No.3274 of 2004 titled Jai Chand Vs. State of Hry the answering respondents vide order dated 10.7.2008 (Copy annexed herewith as Annexure R-1) have already released the constructed area measuring 1391 Sq yd approximately which was situated outside the Green belt and belt reserved for road widening. Besides this the area of the petitioner in CWP No.3005 of 2006 titled Vinod Kumar is lying vacant and there is no construction and the petitioner had not filed objections under Section 5-A of Land Acquisition Act, hence he is otherwise also not eligible for any relief from this Hon'ble Court. The area involved in other CWPs falls either in the green belt or in the belt reserved for road widening and hence it cannot be released as it is required for providing essential services.

CWP No.18 of 2004 (O&M) 17

4. That in order dated 28.4.2007 this Hon'ble Court had further observed that:-

"Director, Urban Estates Department, Panchkula, Haryana vide his order dated August 16, 2005 has ordered release of 85 houses falling in green belt. If that is so, the authorities are to explain as to why the same relief cannot be granted to the petitioners."

Regarding the said observation it is submitted that vide order dated 16.8.2005 Director, Urban Estates Department, Panchkula had released 85 structures falling within the green belt as well as outside the green belt. These structures were ordered to be released as they were mostly in the form of clusters of construction and thus it would not have been possible to maintain the proposed green belt. The petitioners in the present writ petitions cannot claim any parity with the said release order as the facts as well as the actual site is entirely different. The land of mentioned 85 structures was released under a different sector-18 of Kaithal and the same were also part of a different award namely award No.4 of 16.7.2005, which was for development and utilization of land as residential and commercial area for Sector-18 Kaithal, while the land/structures of instant writs forms part of award No.8 of 31.10.2005 and the same is for development and utilization of land as commercial, professional, institutional and for green belt adjoining sector-19, 20 of Kaithal.

5. That is also worth mentioning that the acquisition of land for development of Urban Estates is done in accordance with the approved Development Plan/Land Use Plan under Statutory provisions of Punjab Scheduled Roads and Controlled Areas (Restriction of Unregulated Development Act, 1963) to control and regulate the Development in the Controlled Areas and thus, also signifies the public purpose. The Development Plan provides for a balanced Development of CWP No.18 of 2004 (O&M) 18 Residential, Commercial and Industrial/Institutional areas with liberal provision of open spaces, parks, green belts, gardens and other recreational uses to check the environmental degradation.

Therefore, the relief to the instant petitions cannot be granted in interest of Planned and Controlled Development.

6. That in order dated 28.4.2007 this Hon'ble Court had further observed that under the Punjab Scheduled Roads and Controlled Areas (Restriction of Unregulated Development) (Haryana Amendment Act, 2009) the provisions of Section 3 and 6 of the Punjab Scheduled Roads and Controlled Areas Act, 1963 have been amended which would benefit the petitioners because vide the said amendment buildings existing before 2009 were saved from application of 1963 Act.

Regarding the said observations it is submitted that one time relief was given to the public by the Government to the constructions existing prior to Jan 3, 2009 by amending the section 3 & 6 of Punjab Act No.41 of 1963. However, the land involved in the present writ petitions was acquired by HUDA as per award dated 31.10.2005 i.e. prior to coming into force of the ordinance no.1 of 2009 of Haryana Govt. Therefore, the amendments of section 3 & 6 of the Punjab Scheduled Roads and Controlled Areas (Restriction of Unregulated Development) Act, 1963 are not applicable on the sites involved in the present writ petitions.

7. That a shajra plan showing the restricted belt (under section -3 of Act No.41 of 1963), 45 meter wide strip proposed for widening of existing bye-pass and green belt as per published Draft Development Plan 2021 AD, Kaithal is annexed at annexure R-2. The land of the petitioner has also been depicted on the same shajra plan."

On 7.1.2011, this Court passed the following order: CWP No.18 of 2004 (O&M) 19

Heard in part.

Mr. Kamal Sehgal, is directed to file an affidavit of the Secretary, Department of Home, on or before 18.1.2011, to show that :

(i) As to what extent the land acquired for the police line would be maintained as green belt?

(ii) As to under what provision of law 100 meter green belt is required to be maintained alongside the road in question?

(iii) Whether any scheme was prepared when the land was proposed to be acquired to carve out green belt in dispute?

(iv) Whether green belt measuring 100 meters has been ordered to be maintained within the acquired area in question only or alongside the entire road in question?

(v) Whether the land under acquisition was situated within the municipal limits when notification under Section 4 of the Land Acquisition Act was issued?

Copy of this order be given dasti to Mr. Kamal Sehgal, Additional Advocate General, Haryana under the signatures of the Court Secretary.

A photocopy of this order be placed on the files of other connected cases."

In compliance of the aforesaid order, the respondents have filed an affidavit which reads as follows:

2. The point-wise reply by way of affidavit is as under:-

i) That the land belonging to home department, Haryana, falling in green belt i.e 100 meters in 17/18 acres of land out of total land of 55 acre 7 kanal 11 marla, would be utilized/maintained only as green belt as per provision of the Punjab Schedules Road and Controlled, Areas Restriction of Unregulated Development Act, 1963 (for brevity Act of 1963) and Development Plan Kaithal. The necessary orders in this CWP No.18 of 2004 (O&M) 20 regard are being issued to the concerned authorities.

(ii) That Section 3 of the Act of 1963 provides for Prohibition on erection or re-erection of buildings along scheduled roads/bye-pass, which is reproduced as under:

"3. Prohibition to erect or re-erect buildings along with scheduled roads- No person shall erect or re-erect any building or make or extend any excavation or lay out any means of access to a road within one hundred meters of either side of the road reservation of a bye-pass or expressway or within thirty meters on either side of the road reservation of any scheduled road not being bye- pass or expressway."

(iii) That at the time of initiation of the acquisition proceeding there was no scheme to curve out green belt in dispute. However, the land was a part of agriculture zone of Development Plan 2001 notified on 16.6.1981 and there was a provision of green belt towards Sector 19/20 of the Road, which is now designated as bye-pass in the development plan Kaithal, 2021. However, it is submitted here that as per the Draft Development Plan (Kaithal Development Plan 2021) dated 9.10.2006, the provision of green belt of 100 meters has been kept on the both sides of the bye-pass including the side of Sectors 32 and 33, Kaithal.

(iv) That as per the development plan dated 9.10.2006, 100 meters green belt is required to be maintained along side the entire bye-pass on NH-65 as undertaken in the Kaithal Development Plan 2021.

(v) That in this regard, it is submitted here that the land under acquisition was situated within the municipal limits when notification under section 4 of the Land Acquisition Act was issued. The land involved in the present litigation came within limits vide notification No.18/3/93-331 dated 31.12.1997."

It may also be relevant to mention here that the petitioners have also placed on record an affidavit dated 4.1.2011 along with several CWP No.18 of 2004 (O&M) 21 photographs and one site plan which is taken on record.

Sh. O.P. Goyal, learned Sr. Advocate appearing on behalf of the petitioners has vehemently argued that since construction of the petitioners was complete before issuance of notification under Section 4 of the Act, the land of the petitioners should have been exempted from acquisition as per the policies dated 26.6.1991 and 26.10.1997 of the State which provides for release of land wherever structures/houses/buildings were existing prior to the notification issued under Section 4 of the Act. Counsel for the petitioners has further argued that there is no Bye Pass on National Highway-65 on record and therefore, the defence raised by the respondents that the land was acquired for maintaining a green belt along the Bye Pass road, is not sustainable. It has been further elaborated that National Highway-65 came into existence on 9.2.1998 and there is no reference of any Bye Pass as established on record from Annexure P-22 and P-23 and even the draft plan of 2021 does not show any Bye Pass of National Highway-65 and therefore, as per the amended provisions of Sections 3 and 6 of the Punjab Scheduled Roads Act, there was no requirement of maintaining 100 meters wide green belt alongside the alleged Bye Pass road and as per the law, only a green-belt of 30 meters width was required to be maintained and if only 30 meters greenbelt is required to be maintained then land of the petitioners does not fall within the alignment of the said greenbelt and the petitioners are entitled to the release of the same.

Counsel for the petitioners has further argued that admittedly, the area in dispute falls within the limits of Municipal Council, Kaithal and therefore, the Punjab Scheduled Roads and Controlled Areas (Restriction of Unregulated Development Act, 1963) were not applicable and thus, the land of the petitioners is liable to be released from acquisition. To support CWP No.18 of 2004 (O&M) 22 his case, learned counsel for the petitioners has relied upon Division Bench judgments of this Court cited as The State of Haryana v. Kartar Singh and others 1989 PLJ 35, Pritam Singh and others v. State of Haryana and others 1995 PLJ 357, Satpal and others v. State of Haryana and others 2010 (4)RCR (Civil) 331 and the Full Bench decision dated 12.12.2007 passed in CWP No.8011 of 1999 (M/s Shiva Ice Factory v. State of Haryana and others).

On the other hand, Sh. Kamal Sehgal, Additional Advocate General, Haryana appearing on behalf of the respondents has vehemently argued that in view of the judgment of this Court decided on 24.12.2010 passed in CR No.8353 of 2010 (Smt.Poonam v. The District Town Planner, Karnal), the Division Bench judgments and Full Bench judgments passed by this Court, as relied upon by the learned counsel for the petitioners, are not applicable as provisions of Section 203(1) of the Haryana Municipal Act, 1973 were not brought to the notice of the Court which reads as follows:

"203 C. Declaration of controlled area:- (1) Notwithstanding anything to the contrary contained in the Punjab Scheduled Roads and Controlled Areas Restriction of Unregulated Development Act, 1963 (Act 41 of 1963), the Director may, with prior approval of the State Government, by notification in the Official Gazette, declare any area within the limits of a municipality to be controlled area. In case any area has already been declared as controlled area by the Director, Town and Country Planning, then the same shall be deemed to be the controlled area for the purpose of this Act."

On the basis of the aforesaid judgment, learned counsel for the respondents has submitted that even if the land in question falls within the Municipal Limits, the provisions of Punjab Scheduled Roads Act, are CWP No.18 of 2004 (O&M) 23 applicable. It was further argued by Sh. Sehgal that any road connecting scheduled road is a Bye Pass road, as per the provisions of the Act which reads as follows:

2. Definitions.- In this Act, unless the context otherwise requires,-

(3) "Bye-pass" means a road provided as a permanent diversion to a scheduled road, whether such diversion is situated within or without the limits of a local authority and whether it is constructed before or after the commencement of this Act;

(10) "scheduled road" means a road specified in the Schedule to this Act which is wholly situated within the State of Haryana, and, where, any road so specified is not so situated the portion of such road which is situated in the State of Haryana, and includes a bye-pass or express way but does not include any part of such road or portion, not being a bye-pass or expressway or expressway, which is situated in the limits of a local authority;

Explanation.- For the purposes of this clause 'local authority' means a cantonment board, municipal committee, notified area committee or an improvement trust;] (13) "expressway" means a road as may be notified by the Government from time to time in the Official Gazette, and includes the portion of such road which is situated in the State of Haryana, within or outside the limits of a local authority.

3. Prohibition to erect or re-erect buildings along with scheduled roads-No person shall erect or re-erect any building or make or extend any excavation or lay out any means of access to a road within one hundred meters of either side of the road reservation of a bye- pass or expressway or within thirty meters on either side of the road reservation of any scheduled road not being bye-pass or expressway:

CWP No.18 of 2004 (O&M) 24

Provided that nothing in this section shall apply to-

(a) the repair to a building which was in existence immediately before the commencement of this Act or any erection or re-erection of such a building which does not involve any structural alteration or addition therein;or

(b) the erection or re-erection of a building, which was in existence immediately before the commencement of this Act and which involves any structural alteration or addition with the permission of the Director; or (bb) (as amended) a building, which was in existence, immediately before the commencement of the Punjab Scheduled Roads and Controlled Areas Restriction of Unregulated Development (Haryana Amendment) Ordinance, 2009, or to any repair, erection or re-erection of such a building which does not involve any structural alteration or addition therein, on payment of such fee, as may be prescribed; or (c ) the laying out of any means of access to a road with the permission of the Director; or

(d) the erection or re-erection of a motor-fuel-

filling station or a busqueue-shelter with the permission of the Director ;or

(e) "the public utility buildings" and "community assets" which were in existence immediately before the commencement of the Punjab Scheduled Roads and Controlled Areas Restriction of Unregulated Development (Haryana Second Amendment & Validation) Act, 1996. Explanation - (1) "Public utility building" means buildings belonging to Government, Government Controlled Organisations, Local Bodies, Voluntary Organisations and individuals which are being used for the benefit of public at large without profit motive; and CWP No.18 of 2004 (O&M) 25 (2) "Community assets" means assets belonging to Government, Government Controlled Organisations, Local Bodies, Voluntary Organisations and individuals which are created the beneficial use of public at large without profit motive.

4. Declaration of controlled area.- (1) The Government may by notification declare the whole or any part of the any area adjacent to and within a distance of -

(a) eight kilometers on the outer side of the boundary of any town; or

(b) two kilometers on the outer side of the boundary of any industrial or housing estate, public institution or an ancient and historical monument, specified in such notification to be controlled area for the purposes of this Act.

(2) The Government shall also cause the contents of the declaration made under sub- section(1) to be published in at least two newspapers printed in a language other than English.

6. (as amended) Erection or re-erection of buildings etc. in controlled areas.-Except as provided hereinafter, no person shall erect or re- erect any building or make or extend any excavation or lay out any means or access to a road on a controlled area save in accordance with the plans and the restrictions and conditions referred to in Section 5 and with the previous permission of the Director :

Provided that no such permission shall be necessary for erection or re-erection of any building if such building is used or is to be used for agricultural purpose or purposes subservient to agriculture.

CWP No.18 of 2004 (O&M) 26

[Provided further that nothing in this section shall apply to a building constructed along the extension of the scheduled road located in the limit of the local authority and which was in existence immediately before the commencement of the Punjab Scheduled Roads and Controlled Areas Restriction of Unregulated Development (Haryana Amendment) Ordinance, 2009, on payment of such fee as may be prescribed.]

7. Prohibition on use of land in controlled areas. - (1) No land within the controlled area shall, except with the permission of the Director, [and on payment of such conversion charges as may be prescribed by the Government from time to time] be used for purposes other than those for which it was used on the date of publication of the notification under sub-section (1) of Section 4, and no land within such controlled area shall be used for the purposes of a charcoal-kiln, pottery kiln, lime-kiln, brick-kiln or bricks field or for quarrying stone, bajri, surkhi, kankar or for other similar extractive or ancillary operation except under and in accordance with the conditions of a licence from the Director on payment of such fees and under such conditions as may be prescribed :

[Provided that fee of charge leviable, if not paid within the specified period, shall be recoverable as the arrears of land revenue.] [(1A) Local authorities, firms and undertakings of Government, coloniers and persons exempted from obtaining a licence under the Haryana Development and Regulation of Urban Areas Act, 1975, and authorities involved in land development will also be liable to pay conversion charges but they shall be exempt from making an application under Section 8 of this Act.] (2) The renewal of such licences may be made CWP No.18 of 2004 (O&M) 27 [after three years] on payment of such fees as may be prescribed.

7A. Power of relaxation.- The Government may, in public interest, relax any restrictions or conditions in so far as they relate to land use prescribed in controlled area in exceptional circumstances."

Sh. Sehgal, thus, argued that the land in question falls in the greenbelt of 100 meters width running parallel to the Bye Pass road connecting National Highway-65 as depicted in the master plan 2021, and construction was made in violation of the provisions of Scheduled Road Act, and thus, land of the petitioners cannot be exempted.

On the basis of the aforesaid arguments, learned counsel appearing on behalf of the respondents has prayed for dismissal of the present writ petitions.

We have heard the learned counsel for the parties and have perused the documents placed on record of the case.

From the pleadings of the parties and documents produced on record of the case some undisputed facts which emerge are; that the petitioners purchased the land in dispute in the year 2001 and after purchasing the same constructed a school building and shifted the school upto 8th class in June 2002 in the said premises. The notification under Section 4 of the Land Acquisition Act was issued on 11.11.2002 intending to acquire the land specified in the said notification, including the land in dispute belonging to the petitioners. The petitioners also filed objections under Section 5-A of the Land Acquisition Act which were duly acknowledged. The petitioners also admitted that notice for hearing of objections was given to them and in support of the aforesaid objections, their statements were recorded by the officials of the Land Acquisition Collector and thereafter, declaration under Section 6 of the Act including CWP No.18 of 2004 (O&M) 28 the land of the petitioners was issued on 7.11.2003. However, it has also come on record that no other area where building was constructed and was similarly situated was left out from the acquisition except the area of 0.75 acres which belonged to a religious institution.

It is also not in dispute that as per the master plan 2021, the land in question falls in the green belt of 100 meters width running parallel to the Bye Pass road connecting National Highway-65. It is also not in dispute that under the provisions of the Punjab Scheduled Roads Act, 1963 a green belt of 100 meter width is required to be left along the Bye Pass road. Again it could not be disputed by the petitioners that the alleged construction made by them was on the land in question falls within the controlled area as declared under the provisions of the Punjab Scheduled Roads Act, 1963 and there was no permission/sanction of the competent Authority in favour of the petitioners to raise such construction. Despite the averment that petitioners constructed the building under the deemed permission of the Municipal Authorities, no such evidence could be established on record of the case. Neither the petitioners could show any permission from the competent Authority to raise construction over the acquired land under the provisions of Scheduled Roads Act. In fact, it is not even their averment that they had sought any permission from the Authorities under the Scheduled Roads Act to raise construction. It could also not be disputed by the learned counsel for the petitioners that under the policies dated 26.6.1991 and 26.10.1997 of the State, land/buildings/structures constructed prior to notification under Section 4 of the Act falling in the alignment of Scheduled Road/green belt etc. cannot be exempted.

In fact the argument of the learned senior Advocate appearing on behalf of the petitioners is that there is no Bye Pass in existence on CWP No.18 of 2004 (O&M) 29 National Highway-65 and the land of the petitioners falls beyond 30 meters of the greenbelt running parallel to the alleged Bye Pass road. The defence taken by the respondents that a greenbelt of 100 meter width is required to be kept parallel to the said Bye Pass road is wrong as National Highway-65 being scheduled road, the petitioners are required to leave an area of 30 meters only from the said road as provided under the Scheduled Roads Act. To elaborate his argument, learned counsel for the petitioners has made a reference to a notification dated 9.2.1998 vide which the aforesaid National Highway-65 was created and also to the documents Annexures P-22 and P-23 and the Draft Plan of 2021 to contend that from the aforesaid documents it is established that no Bye Pass exists in front of the land of the petitioners and the same is only a part of the scheduled road i.e. National Highway-65 and therefore, the acquisition of the land of the petitioners was bad and they were entitled to the release of their land from the acquisition.

It may also be relevant to point out at this stage that though learned counsel for the petitioners raised an argument that the land in question falls within the limits of Municipal Council, Kaithal and therefore, the provisions of the Punjab Scheduled Roads and Controlled Areas Act were not applicable in view of the judgments of this Court in Kartar Singh's case, Pritam Singh's case, Satpal's case and M/s Shiva Ice Factory's case (supra) but could not substantiate the said argument in the face of the judgment of this Court passed in CR No.8353 of 2010 ( Smt. Poonam v. The District Town Planner, Karnal) decided on 24.12.2010 wherein this Court after considering the aforesaid judgments has clearly laid down that the Hon'ble Full Bench and the Division Benches in the aforesaid cases were not apprised of the amendments in the Statute carried out by the Haryana Act No.1 of 2002, whereby Section 203 C of the CWP No.18 of 2004 (O&M) 30 Haryana Municipal Act, 1973 was inserted and in view of the aforesaid statutory provisions incorporated in the Haryana Municipal Act, the judgments relied upon by the petitioners were inapplicable.

In view of the aforesaid discussion, the only point which remains for determination in the present case is whether the road depicted in the master plan 2021 in front of the land in question is a Bye Pass or not?

It is not in dispute that National Highway-65 starts from Ambala and goes to Hisar through the city of Kaithal. The documents Annexures P-22 and P-23 do not establish in any way that the road is only a scheduled road i.e National Highway-65 and is not a Bye Pass. There is nothing on record to establish the location of National Highway No.65 in the city of Kaithal neither there is any document to show the original location of the National Highway-65 which was passing through the areas of city Kaithal at the time of its creation in the year 1998. However, one thing has been established on record that the road running through the city and which is in front of the land in question definitely connects the two parts of the scheduled road i.e. National Highway-65 on either side of the city i.e. from Ambala side and Hisar side. As per the definition given in the Act, "Bye Pass" means a road provided as a permanent diversion to a scheduled road, when such diversion is situated within or without the limits of a Local Authority, whether it is constructed before or after commencement of this Act. It could not be disputed by the learned counsel for the petitioners that the land in question definitely connects the two parts of the scheduled road on either side of the city. There is not even an attempt to argue on behalf of the petitioners that the road map of National Highway-65 as shown in the master plan 2021, is in existence since the creation of the aforesaid scheduled road. In view of the aforesaid facts and CWP No.18 of 2004 (O&M) 31 the provisions of law, there is no escape from holding that the road running through the city of Kaithal in front of the land in question is a Bye Pass road which is connecting two parts of the scheduled road on either side of the city.

During the course of various hearings, the petitioners had also raised an argument to the effect that the land belonging to Police Lines which adjoins the land of the petitioners also falls in the alignment of 100 meter width green belt but the same has been exempted and therefore, the petitioners have been treated with hostile discrimination. However, the aforesaid argument is liable to be rejected on the ground that in the affidavit dated 22.11.2010 filed on behalf of the respondents, it has been clearly undertaken that the area falling within the alignment of 100 meter wide green belt belonging to the police lines which was exempted will be kept as a greenbelt.

In view of the stand taken by State, arguments regarding hostile discrimination, is unsustainable. However, in view of the aforesaid stand taken, the respondents are bound to maintain the aforesaid land of police lines as a greenbelt.

No additional argument was raised in any other petition. Thus, we find no merit in these petitions.

Resultantly, all the writ petitions are dismissed.

(JASBIR SINGH)                                  (RAKESH KUMAR GARG)
  JUDGE                                                 JUDGE



January 28, 2011
ps
 CWP No.18 of 2004 (O&M)                       32

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No.3005 of 2006 (O&M) Date of decision: 28.1.2011 Vinod Kumar ......Petitioner(s) Versus State of Haryana and others ......Respondent(s) CORAM:- HON'BLE MR.JUSTICE JASBIR SINGH HON'BLE MR.JUSTICE RAKESH KUMAR GARG * * * Present: Mr. Arun Jain, Sr. Advocate with Mr. Rakesh Nagpal, Advocate for the petitioner(s).