Punjab-Haryana High Court
M/S City Crown Hotels And Resorts Pvt. ... vs The Commissioner on 3 May, 2012
Author: Rajiv Narain Raina
Bench: Rajiv Narain Raina
CWP No. 10956 of 2012 -1-
IN THE PUNJAB AND HARYANA HIGH COURT
AT CHANDIGARH
CWP No. 10956 of 2012
Date of Decision: 03.05.2012
M/s City Crown Hotels and Resorts Pvt. Ltd.
......... Petitioner
Versus
The Commissioner, Gurgaon Division, Gurgaon, District Gurgaon &
others
............ Respondents
*****
CORAM : HON'BLE MR. JUSTICE RAJIV NARAIN RAINA
Present: Dr. Anmol Rattan Sidhu, Sr. Advocate with
Mr. Narender Pal Bhardwaj, Advocate
for the petitioner.
Mr. Narender Hooda, Sr. Advocate with
Mr. Sudhir Hooda, Advocate
for the caveator.
****
1. To be referred to the reporters or not?
2. Whether the judgment should be reported in the digest.
RAJIV NARAIN RAINA, J.
1. This litigation is an example of the growing menace of greedy land developers and bounty seekers in Gurgaon's rapid urbanization and their quest to make not just the proverbial 'quick buck' but a long one. There is a builder who purchased precious urban land to make a hotel in Sector 16, Gurgaon. It bought land by a registered sale deed dated 23.1.2008 from one J.R. Chhabra. There were some constructions on the land prior to purchase. J.R. Chhabra was in litigation before this Court in CWP No. 13086 of 1990 against CWP No. 10956 of 2012 -2- land acquisition proceedings in defense of his land falling in Khasra No. 1869 as it stood notified under Section 4 & declaration issued under Section 6 of the Land Acquisition Act, 1894 in 1988 and 1989 respectively. The Builder, who is the petitioner company herein having purchased the land from J.R. Chhabra pleads innocence of the land acquisition proceedings. It says it did due diligence of the land from the revenue record of village Gurgaon and found no contra indication that the land was un-encumbered in the revenue record; the land in question bore Khewat No. 729/611, Khata No. 1056, Khasra No. 1869 (1-3), measuring 1 Bigha 2 Biswas, situated within the revenue estate of village Gurgaon and falling within the jurisdiction of the Municipal Corporation, Gurgaon.
2. To make matters worse there is an Ammunition Depot in village Gurgaon falling within the jurisdiction of the Works of Defence Act. The land falls in proximity of the Ammunition Depot, a defense installation established long ago. After having bought the land under acquisition process the petitioner company with a view to construct a hotel submitted building plans for construction of hotel building to the Municipal Corporation, Gurgaon. Pleads that a scrutiny fee of Rs.1,23,200/- was deposited on 10.3.2008 with the Municipal Corporation, Gurgaon. The petitioner was asked to get the report from the revenue officials regarding status of the property. The Halqa Patwari and Tehsildar on having been approached by the petitioner company reported that the property in dispute was situated outside the limits of the protected radius of the Ammunition Depot, Gurgaon. It was also certified that there were existing constructions in the shape of a house and garage on the said land obviously built by the previous owner. It deserves to be noticed that the request for report of Halqa CWP No. 10956 of 2012 -3- Patwari was sought by J.R. Chhabra through GPA holder Rajesh Banyal and bears the date 6.2.2008 by Tehsildar with a request to Halqa Patwari to report. The annexure discloses that the subject clearly speaks of the land in question as "acquired/acquisitioned". The petitioner company having bought the land on 23.1.2008 obviously knew of the acquisition since they were acting through J.R. Chhabra or they would be presumed to know of it. Be that as it may, the Municipal Corporation, Gurgaon demanded from the petitioner a no objection certificate issued by the District Town Planner, Gurgaon for process of consideration of sanctioning of building plan. The District Town Planner, Enforcement, Gurgaon by memo dated 6.8.2008 wrote to the Deputy Town Planner, Gurgaon as desired by the Director, Urban Local Bodies, Haryana, Chandigarh on behalf of the petitioner company that his office had again re-enquired and found that the place is situated at a distance of 908 meters of the boundary wall from the Ammunition Depot-54 ASP, Gurgaon; and that the land lay beyond the restricted area of the Ammunition Depot. This memo is P-4. The restriction lies within a radius of 900 meters from the Ammunition Depot what is called the no construction zone.
3. The central issue in this case is whether the land in question falls within or outside the 900 meters no construction zone. Two material facts arose after certification and thereafter as far as the parties are concerned. Firstly, the Municipal Corporation after obtaining NOC from the Town and Country Planning Department, Haryana informed the petitioner that arrears of house tax were due against the property. It may be mentioned that J.R. Chhabra was assessed to house tax. The petitioner promptly paid Rs. 5, 55,037/- on 30.4.2008 to tape up that loose end. Thereafter, Municipal Corporation, Gurgaon CWP No. 10956 of 2012 -4- demanded a sum of Rs. 83, 74,139/- as development charges from the petitioner company. The petitioner company paid the amount in two installments on 8.6.2010 and 29.11.2011. It appears that after the first tranche of payment building plans were readily sanctioned by the Municipal Corporation, Gurgaon by memo dated 14.7.2010. The petitioner pleads that on sanctioning of building plans it demolished existing structures on the land in dispute for raising construction of a hotel building according to the sanctioned plans.
The Present Controversy:
4. The Commissioner, Municipal Corporation, Gurgaon issued show cause notice to the petitioner company on 14.2.2012 contemplating invoking of Section 256 of the Haryana Municipal Corporation Act, 1994 for revocation of sanction of building plans accorded on 14.7.2010. The show cause notice emanates from a communication received from the Deputy Commissioner, Gurgaon vide his office memo dated 9.2.2012 intimating Municipal Corporation, Gurgaon that the land under Khasra No. 1869 falling in the revenue estate of village Gurgaon and located on the Delhi-Gurgaon road has been notified by Urban Estate Department, Haryana under Sections 4 & 6 of the Land Acquisition Act on 9.5.1988 and 4.5.1989 respectively. Besides, CWP No. 13086 of 1990 titled J.R. Chhabra v. State of Haryana is pending in which this Court had passed interim orders on 31.10.1990 and 11.12.1990 the main of which reads as follows:-
"Dispossession and further proceedings are stayed. The petitioners should not raise any further construction."
5. The show cause notice states that as per interim orders no construction can be raised on this site otherwise it would invite contempt proceedings. The show cause notice further proceeds to say CWP No. 10956 of 2012 -5- that the petitioner company did not disclose in the application for sanction of building plan the court case, the interim orders nor the pending land acquisition proceedings in respect of the land in question, therefore, it was assumed that building plan was got sanctioned by misrepresentation and hiding facts. Personal hearing was offered on 15.2.2012. On request of the petitioner company the personal hearing was deferred for 22.2.2012. The petitioner was advised to attend the hearing along with the relevant documents. This was intimated by letter dated 15.2.2012 (P-12). It was signed by the Chief Town Planner for Commissioner, Municipal Corporation, Gurgaon. On 16.2.2012 another letter was issued signed by the Junior Engineer for Commissioner, Municipal Corporation, Gurgaon fixing personal hearing on 17.2.2012. It appears that the left hand did not know what the right hand was doing. Leaving that aside, on 17.02.2012 the petitioner company appeared and filed a detailed reply to the show cause notice dated 14.2.2012 (P-14).The petitioner company broadly relied upon the verifications done by the revenue and Town and Country Planning authorities with respect to proximity of the land to the Ammunition Depot. They took the plea that they were bona fide purchasers for valuable consideration and had a legal sanction order in their favour. They had done due diligence from the revenue record but feigned ignorance of acquisition proceedings and blamed the previous owner having practiced fraud on the petitioner company by culpable non- disclosure. They pleaded that the notifications under Sections 4 & 6 of 1988 & 1989 have lapsed in view of the provisions contained in Section 11A of the Land Acquisition Act; that such lapse took place on 5.5.1991 and, therefore, construction of the building could not be stopped by the Municipal Corporation, Gurgaon under the guise of CWP No. 10956 of 2012 -6- these notifications. It was admitted that the matter relating to the land acquisition proceedings of Khasra No. 1869 etc. is sub judice before this Court. It was pleaded that the action of the Municipal Corporation, Gurgaon was mala fide and was taken under political pressure and extraneous influence in order to harass the petitioner company and to cause damage to it. The correspondence where the left hand did not know what the right hand was doing was cited as an example of mala fide. Yet another reason for proof of mala fide was that the letter dated 16.2.2012 (P-13) signed by the Junior Engineer fixing 17.2.2012 as the date of personal hearing was issued on a gazetted holiday and, therefore, was in undue haste. It was pleaded that the case of Smt. Veena Bindal and others v. Haryana State being CWP No. 15934 of 1990 has nothing to do with the petitioner company. It was pleaded that there is no order restraining the construction of the petitioner in case CWP No. 13086 of 1990 filed by J.R. Chhabra where only his dispossession was stayed. There was, therefore, no restraint order against the petitioner to carry out and complete the construction. Political colour was given by pleading that the wife of the brother of the Director of the Company Mrs. Rama Rani Rathi is a Municipal Councillor, Gurgaon. Sh. R.S. Rathi, brother of the representative of the petitioner happens to be Chairman of the City Council and had agitated social issues against the illegal activities of the Municipal Council, Gurgaon as well as HUDA Administration. It is further pleaded that Sh. R.S. Rathi, Director of the company had contested the Assembly elections as an independent candidate from Gurgaon constituency in the year 2009. It was prayed that the show cause notice be withdrawn in the interest of justice. It appears that personal hearing was afforded to the petitioner on 17.2.2012, therefore, no CWP No. 10956 of 2012 -7- prejudice was caused to him by alteration of dates of personal hearing. In continuation of the earlier show cause notice dated 14.2.2012 an opportunity of personal hearing was afforded on 17.2.2012. The Commissioner, Municipal Corporation, Gurgaon vide memo (P-15) dated 27.2.2012 informed the petitioner that the committee consisting of Executive Engineer-IV, Municipal Corporation, Gurgaon, Sh. Tarsem Sharma, Tehsildar, Gurgaon and Sh. Jaya Kumar, M/s CE Info System Pvt. Ltd., New Delhi has been constituted by the Commissioner, MCF to verify whether khasra No. 1869, the site in dispute, falls within the restricted belt around Ammunition Depot, Gurgaon or it is located outside 900 meter restricted belt around Ammunition Depot, Gurgaon and they submitted report on 27.2.2012, which went against the petitioner company. M/s CE Info. System Pvt. Ltd. had carried out the calculation on scientific basis using the Global Positioning System (GPS). Sh. Tarsem Sharma, Tehsildar, Gurgaon independently reported that the distance was 808 meters while Sh. Jaya Kumar using GPS reported the distance between nearest point of the boundary of the Ammunition Depot and Khasra No. 1869 as 800 meters. Consequently, the petitioner company by letter (P-15) was again called for personal hearing to explain the changed factual circumstances. The petitioner company by its reply dated 29.2.2012 now inter alia contended that the grounds taken in show cause notice dated 27.2.2012 are different from the grounds taken in the show cause notice dated 14.2.2012. What was meant was a paradigm shift in the official stance. Discrimination was also pleaded that there were other constructions/properties lying within the no construction zone against whom no action was taken. There was, however, no forceful rebuttal as to the actual distance and the reports made being correct or CWP No. 10956 of 2012 -8- incorrect, no evidence contra. The reply of the petitioner company produced during personal hearing on 29.2.2012 was examined by the Chairman, MCG and the report submitted by the Committee regarding distance of hotel at Khasra No. 1869 and boundary wall of Ammunition Depot, Gurgaon was definitely less than 900 meters. Consequently, the building plans sanctioned earlier were revoked and the petitioner was asked to remove the structure raised till date being an unauthorized construction after revocation of sanction. The powers under Section 256 were invoked to pass the impugned order dated 1.3.2012 (P-17). The petitioner's appeal before the Commissioner, Gurgaon Division, Gurgaon instituted on 7.3.2012 failed on 3.5.2012 on the ground that where the building plan is revoked in exercise of powers under Section 256 of the Act the same cannot be challenged under Section 261 since the Commissioner cannot be said to have passed orders under Section 261 of the Act. This order (P-19) has also been impugned and a prayer has been made for quashing it together with the impugned order revoking sanction dated 1.3.2012 (P-17) since action was taken under Section 256 of the Act it would be apposite to quote it, which reads as follows :-
"256. Sanction accorded under mis-representation.- If at any time after the sanction of any building or work has been accorded, the Commissioner is satisfied that such sanction was accorded in consequence of any material misrepresentation or fraudulent statement contained in the notice given or information furnished under sections 251, 252 and 253, he may by order in writing, cancel for reasons to be recorded such sanction and any building or work commenced, erected, or done shall be deemed to CWP No. 10956 of 2012 -9- have been commenced, erected or done without such sanction.
Provided that before making any such order the Commissioner shall give reasonable opportunity to the person affected as to why such order should not be made."
6. The relevant part of Section 261 i.e. 261(1) and 261(2) are reproduced below for quick reference:-
"261. Order of demolition and stoppage of building and works in certain cases and appeal.-(1) Where the erection of any work has been commenced, or is being carried on or has been completed without or contrary to the sanction referred to in section 254 or in contravention of any condition subject to which such sanction has been accorded or in contravention of any of the provisions of this Act, or bye-laws made thereunder, the Commissioner may in addition to any other action that may be taken under this Act, make an order directing that such erection or work shall be demolished by the person at whose instance the erection or work has been commenced or is being carried on or has been completed within such period (not being less than three days from the date on which a copy of the order of demolition with a brief statement of the reasons thereof has been delivered to that person) a s may be specified in the order of demolition. Provided that no order of demolition shall be made unless the person has been given by means of a notice served in such manner as the Commissioner may think fit, a reasonable opportunity of showing cause why such order should not be CWP No. 10956 of 2012 -10- made:
Provided further that where the erection or work has not been completed the Commissioner may by the same order or by a separate order, whether made at the time of t he issue of the notice under the first proviso or at any other time, direct the person to stop the erection of work until the expiry of the period within which an appeal against the order of demolition, if made, may be preferred under sub- clause (2).
(2) Any person aggrieved by an order of the Commissioner made under sub-clause (1) may prefer an appeal against the order to the court of the Divisional Commissioner of the Municipal area within the period specified in the order for the demolition of the erection or work to which it relates."
7. In the present case the Commissioner, Municipal Corporation has not exercised any power under Section 261(1) of the Act. The issue in the present case is not of erection of any work being completed without or contrary to the sanction referred to any sub section 254 or in contravention of any conditions subject to which sanction has been accorded or in contravention of any provisions of this Act or bye-laws the Commissioner can in addition make orders of demolishing such work. Therefore, the Divisional Commissioner was correct in reasoning in appeal that the Commissioner had not passed any order under sub section (1) of Section 261 to give him jurisdiction to entertain and decide the appeal.
8. This court is, therefore, now left with stand-alone Section 256 of the Act. The argument of the learned senior counsel for the CWP No. 10956 of 2012 -11- petitioner is that there was material misrepresentation or fraudulent statement of the petitioner in the notice given or information furnished under Sections 251, 252 and 253 of the Act. A perusal of Section 254 discloses that sanction of building can be granted only if the building or work would not contravene the provisions of any bye-law made in this behalf or of any other law or of rule, bye-law or order made under such other law as provided in Section 254(2)(a) of the Act. If the sanction itself is in contravention of law the Municipal Corporation cannot be a helpless spectator of construction being carried out in violation of the Works of Defence Act. I am here presented with a pure question of fact without there being for the moment any law attached to answer the question as to how far is the disputed land from the Ammunition depot. I have no reason to disbelieve measurement carried out through GPS. Nothing to the contrary has been shown to the Court at the hearing by the learned senior counsel appearing for the petitioner. The Works of Defence Act, 1903 is a special law dealing with regulations and prohibitions on land around works of Defence such as the Ammunition depot herein. There is a substantial public purpose involved in keeping free the no-construction zone area of the ammunition depot. It is meant to save lives and not endanger it. Any building raised in violation of the 900 meters zone restriction would be testing providence. If the edifice is made it would be contrary to law. There can be no relaxation in a no-construction zone which is not permitted by law. The reports relied upon by the petitioner company were obtained and procured from the revenue authorities to suit their personal interests. There are all well known methods resorted to by desperate land developers manifesting themselves in many convex and concave mirrors while interfacing with corrupt authority, extraneous CWP No. 10956 of 2012 -12- considerations beyond call of duty, dirty dealing and considerations other than law at play. I find it remarkable for the petitioner to contend protection of his property and building when he is an illegal purchaser of land under acquisition with no title passing. J.R. Chhabra's dispossession was stayed. Further construction was stayed. Acquisition proceedings were not stayed by this Court. The petitioner company has merely stepped into the shoes of J.R. Chhabra. The petitioner company could at best be person interested to receive compensation. The vesting of the land in the State had taken place long ago. The due diligence done was a self seeking fraud committed on public land. If the Municipal Authorities did not act in accordance with law or in public interest as the custodian and trustee of public land then the Court must step in to correct public wrong and restore public safety. I feel that the substantive provisions of Section 256 of the Act are large and broad enough to encompass this case and ought not to suffer any technical argument to warrant upholding of the impugned order of revocation of sanction as an order passed in public interest and within the rigours of the special law enacted for defence of the nation against foreign aggression and safety of its citizens at the same time and the delicate counter balance thought out by the law makers in enacting the law. That purpose needs to be respected and the court cannot pass an order in breach of it. If there are any buildings within the no-construction zone they would necessarily meet the same fate. Merely because large amount of money has been spent under colour of perverse orders as now revealed would not afford valid and legal protection or ground to save the construction and permit the illegality to be perpetuated for time immemorial and put lives in a hotel to real possibility of peril.
CWP No. 10956 of 2012 -13-
9. I have heard the learned senior counsel for the parties at length. I am unable to persuade myself to bail out the petitioner from the situation created by it tinged with greed and acting hitherto fore in cahoots with a pliant officialdom. I cannot help but comment that it is a matter of anguish that no drastic action has been taken or contemplated against anyone who was directly or indirectly responsible in temporarily insulating the petitioner company with perverse and deliberately fraudulent measurement.
10. No merits.
11. Dismissed.
31.05.2012 (RAJIV NARAIN RAINA)
'sp' JUDGE