Punjab-Haryana High Court
Senior Citizens Forum (Regd.) vs Haryana Urban Development Authority ... on 3 October, 2012
Bench: Jasbir Singh, Rameshwar Singh Malik
Civil Writ Petition No. 2171 of 2011 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Civil Writ Petition No. 2171 of 2011 (O&M)
Date of Decision: 03.10.2012
Senior Citizens Forum (Regd.)
.....Petitioner.
Vs.
Haryana Urban Development Authority and others
.....Respondents.
CORAM : HON'BLE MR. JUSTICE JASBIR SINGH
HON'BLE MR. JUSTICE RAMESHWAR SINGH MALIK
Present : Mr. A.P.Bhandari, Advocate
for the petitioner.
Mr. Gitish Bhardwaj, Advocate
for respondents No. 1 and 2.
Mr. Ashwani Talwar, Advocate
for respondent No.3.
Mr. Alok Mittal, Advocate for
Mr. Akshay Bhan, Advocate
for respondent No.4.
****
1. To be referred to the Reporters or not?
2. Whether the judgment should be reported in the Digest?
RAMESHWAR SINGH MALIK J.
The petitioner, by way of instant petition under Article
226/227 of the Constitution of India, is seeking a writ in the nature of
Mandamus, directing the respondents not to change the use of open
space/park, situated in front of the houses of HIG Block in Sector 29,
Faridabad. The petitioner seeks further direction to the respondents
not to tinker with the original plan, wherein area in question was
shown as open space/park, which was being sought to be changed
for construction of school.
Civil Writ Petition No. 2171 of 2011 2
Notice of motion was issued and pursuant thereto, written
statement of Estate Officer, HUDA, Faridabad, was filed on behalf of
respondents No. 1 and 2. A separate reply was filed by way of
affidavit on behalf of respondent No.3.
Learned counsel for the petitioner vehemently contended
that Haryana Housing Board-respondent No.3, issued an
advertisement in the year 1980, inviting applications for allotment of
houses in Sector 29, Faridabad in LIG, MIG and HIG categories.
Houses under different categories, noted above, were allotted to the
eligible persons. However, petitioner is concerned only with the HIG
category. It is contended that as per the brochure issued by
respondent No.3, amenities like water, sewerage, electricity and
park/open space etc., were to be provided for the use of the
residents.
Learned counsel for the petitioner further contended that
respondents have no authority, to use the open space for setting up a
school by illegally allotting, the said open space to respondent No.4.
He next contended that converting the open space into school will be
prejudicial to the interest of the petitioner, whose members are
residing nearby. He also relies upon Section 79 of the Haryana
Urban Development Authority Act, 1977. ('HUDA Act' for short), to
contend that respondents would be violating the provisions of law
contained under Section 79 of the HUDA Act, by converting the open
space/park into the school. To substantiate his arguments, learned
counsel for the petitioner, relies upon the judgment of the Hon'ble
Supreme Court passed in Virendra Gaur and others versus State
Civil Writ Petition No. 2171 of 2011 3
of Haryana and others, Civil (appeal) No. 9151 of 1994, on
24.11.1994.
Finally, learned counsel for the petitioner submitted that
the present petition may be allowed and the respondents be directed
not to convert the open space/park into the school.
Per contra, learned counsel for respondents No. 1 and 2,
while referring to the preliminary submissions taken in their reply,
submits that the petitioner Forum has not approached this Court with
clean hands and the instant petition was liable to be dismissed with
heavy costs for this reason alone. He further submits that the land in
question, was reserved for the school site and not for the park, as
wrongly alleged by the petitioner. The petitioner, as a matter of fact,
wants to perpetuate its illegal encroachment on the part of the said
land, which was a school site. The petitioner was requested many a
times to remove its unauthorised encroachment on the land in
question, but the same has not been removed.
The land was acquired, vide Award No. 6 dated 30.3.1978
for the planned development of Sector 29, Faridabad. The school
site was allotted to respondent No.4, vide order dated 28.12.1994
(Annexure R-1). The land in question was never reserved for any
park but on the contrary, it was reserved for primary school site. It
was further contended that although the land reserved for primary
school was approximately 2 acres, yet since on some part of this
school site, an unauthorised temple was constructed by the residents
of the colony, putting illegal encroachment, the respondent
authorities thought it appropriate to leave 0.63 acre for the park, in
Civil Writ Petition No. 2171 of 2011 4
which the unauthorised temple has been constructed. Remaining
area of 1.5 acres has been allotted for the construction of primary
school. It was also clear from the layout plan of the colony that other
parks and open space are existing for the social functions, playing of
children, exercise and for morning/evening walk of senior citizens in
the colony. Learned counsel for respondents No. 1 and 2, refers to
the communication dated 8.3.1995 (Annexure R-2), in this regard,
submitting that grievance raised by the petitioner already stood
redressed way back in the year1995.
Learned counsel for respondents No. 1 and 2 concluded
by submitting that the present petition is a frivolous one The same
controversy raised by the residents of this very colony, has already
been dealt with and found without any substance, in different writ
petitions and civil suit as well, because of which the present petition
is liable to be dismissed with an exemplary costs.
We have heard the learned counsel for the parties and
with their able assistance, have gone through the record of the case.
After giving our thoughtful consideration to the rival
contentions raised and in view of the peculiar fact situation of the
present case, this Court is of the considered opinion that present
petition is a glaring abuse of process of law. In this view of the
matter, the instant petition is liable to be dismissed with cost for the
reasons, being recorded hereinafter.
A bare reading of memo dated 8.3.1995, sent by District
Town Planner, Faridabad, to the Administrator HUDA, Faridabad,
would show that being conscious of the fact situation obtaining at the
Civil Writ Petition No. 2171 of 2011 5
site, including the illegal encroachment on the school site, an area
measuring 0.63 acres was left, whereupon the unauthorised temple
has been constructed, by the residents of the colony and remaining
area measuring only 1.5 acres, was allotted to respondent No.4.,
which was reserved for the primary school, as per layout plan of
Sector 29, Faridabad. It has also been noted that other parks/open
space, were existing for social functions, playing of children, exercise
and morning/evening walk for the senior citizens in the colony.
However, it seems that the residents of the colony were
still not satisfied. A Civil Writ Petition No. 13748 of 1995 came to be
filed before this Court, by one Shanti Prashad resident of House No.
951-A, HIG, Sector 29, Housing Board Colony, Faridabad, for
quashing of the allotment of the school site in favour of respondent
No.4, claiming the said land to be land meant for park. Notice of
motion was issued and parties filed their respective replies. After
hearing the parties and finding no merits, the writ petition was
dismissed by a Division Bench of this Court, vide order dated
29.1.1996.
Another Civil Writ Petition No. 14472 of 1995 was filed by
one Kuldep Singh Rajput, resident of House No. 873-A, HIG-II,
Sector 29, Housing Board Colony, Faridabad, vide Annexure R-3,
raising exactly the same issue, which has been raised by the
petitioner in the instant petition. All the four respondents herein,
were also impleaded as respondents in above said CWP No. 14472
of 1995 and exactly the same relief was claimed. The writ petition
was dismissed by a Division Bench of this Court, vide order dated
Civil Writ Petition No. 2171 of 2011 6
6.3.1996 (Annexure R-4), and the same reads as under:--
"Civil Writ petition 13748 of 1995
claiming the same relief, as is sought herein, has
already been dismissed by a Division Bench of this
Court on 29.1.1996. In this view of the matter, no
relief can be granted to the petitioner in this writ
petition which is consequently dismissed."
6.3.1996
A suit for declaration with consequential relief of
permanent injunction, in the form of civil suit No. 452, came to be
filed before the learned civil court at Faridabad, by another registered
body by the name of Shree Sanatan Dharam Mandir Sabha (Regd.),
against National Education Society and others. In the civil suit also
exactly the same relief was sought. The learned Civil Judge (Junior
Division), Faridabad, inter alia, noting the fact that the writ petition
filed by the plaintiff society had been dismissed by the Division Bench
of this Court, the civil suit was also dismissed with costs, vide
judgment dated 20.2.2010 (Annexure R-5). The above said
judgment of the learned Civil Judge (Junior Division), Faridabad,
came to be challenged in civil appeal No. 90/20.4.10, before the
learned District Judge, Faridabad, but the same was dismissed as
withdrawn, vide order dated 4.01.2011 (Annexure R-6).
Yet another CWP No. 12458 of 2005 was filed, by the
residents of this very colony, who have also formed the similar
society, as the present one. The above mentioned CWP No. 12458
of 2005 was filed by the Resident Welfare Association, against the
Civil Writ Petition No. 2171 of 2011 7
present respondents challenging the allotment of school site in favour
of respondent No.4. This writ petition was also dismissed by the
Division Bench of this Court, vide order dated 11.8.2005 and the
same reads as under:-
"Since the writ petition badly suffers from
delay and laches, inasmuch as the petitioner,
admittedly, gained knowledge of the allotment of
plot to respondent No.4 in the year 1995, as far
back as in the year 2002, we are not inclined to
entertain the writ petition at this juncture.
Dismissed."
It is also pertinent to note here that before approaching
this Court by way of CWP No. 12458 of 2005, the Resident Welfare
Association approached the Hon'ble Supreme Court also, by filing
the writ petition (civil) No. 523 of 2004, (Resident Welfare Association
versus State of Haryana and others), but the same was dismissed as
withdrawn, while granting leave to the petitioner to approach this
Court, by filing a petition under Section 226 of the Constitution, if
advised. This order dated 27.9.2004 passed by the Hon'ble
Supreme Court, in writ petition (civil) No. 523 of 2004, reads as
under:-
"Upon hearing counsel the Court made
the following
ORDER
The petitioner is granted leave to withdraw this petition and, if advised, to approach Civil Writ Petition No. 2171 of 2011 8 the High Court by filing a petition under Article 226 of the Constitution.
The writ petition is, accordingly,
dismissed as withdrawn.
27.9.2004.
A combined reading of the above said numerous orders, dismissing the repeated writ petitions, filed by different residents of this very colony and also Resident Welfare Association, claiming exactly the same relief against the same respondents, would make it abundantly clear that the present petition amounts to blatant abuse of process of law.
We have considered the arguments raised on behalf of petitioner Forum and found the same are without any substance. Section 79 of the HUDA Act is not at all attracted in the present case. The judgment relied upon by the learned counsel for the petitioner in Virendra Gaur's case (supra), is of no help to the petitioner for the reason that the same is clearly distinguishable on facts. The factual position in the present case, is just the converse. The land in question has been reserved for the school site, which is clear from the layout plan.
It is the settled proposition of law that peculiar facts of the each case are to be seen first before applying any codified or judgmade law thereto. Sometimes, even the difference of a word can make the world of difference. In the given fact situation of the present case, we have no hesitation to conclude that the petitioner Forum has no respect for the law. The petitioner can not be permitted Civil Writ Petition No. 2171 of 2011 9 to say that the earlier petitions filed by its neighbourers or another similarly placed Welfare Association, would not be binding on the petitioner. If this contention is to be accepted, then every resident of the colony would be pursuing the similar litigation, before one or the other forum and it would be an unending litigation.
In an identical situation, the Division Bench of this Court, while deciding the CWP No. 20269 of 2010 (Man Singh versus State of Haryana and others), vide order dated 9.8.2012, held as under:-
"The school's site is shown in the lay out Plan-B of Annexure P.1.The prayer of the petitioner is that if such school is shifted as per Plan-A ofAnnexure P.1, the open space between the back of the house of the petitioner and the school's site, would be available. On the last date of hearing i.e. 3.8.2012, after hearing learned counsel for the parties, we passed the following order:-
"Though, learned counsel for the petitioner concedes that all the issues, as raised by the petitioner in the present writ petition, have been adjudicated upon in the earlier Civil Writ Petition No. 2560 of 2008 filed by the neighbours of the petitioners which was decided on 25.3.2010, but it is stated if the location of the school is shifted as shown in Plan-B of Annexure P.1 to the location shown as in Plan-A, it will not harm the interest of any person, but will provide open space to the petitioner in the same manner as to the other allottees in the same line. Ms. Moga and Mr. Sharma, seek a week's time to get instructions. List on 9.8.2012."
Ms. Monga, learned DAG, Haryana, has stated that in fact the petitioner has opened a gate at the back of his house without permission and that is the reason he is Civil Writ Petition No. 2171 of 2011 10 insisting on shifting of the school's site, the lay out plan of which was finalized in the year 2000. The earlier writ petition bearing CWP No. 2560 of 2008 was filed by the immediate neighbours of either side of the petitioner. The said writ petition was dismissed on 25.3.2010, but soon thereafter, the present writ petition has been filed on 8.11.2010.
In view of the said fact, we find that the petitioner has abused the process of law by filing the present petition, as the writ petition filed by the neighbours of the petitioners raising the similar issues stands dismissed. The petitioner cannot be permitted to invoke the jurisdiction of this Court on the same issues again. Consequently, the present writ petition is dismissed with costs of Rs.1.00 lacs (Rupees One Lac), which shall be deposited with the Haryana State Legal Services Authority, within one month."
It also does not appeal to reason that the petitioner would not be aware about the numerous writ petitions filed earlier and dismissed on behalf of the individuals and the Resident Welfare Association, as well. However, the petitioner has kept conveniently silent in this regard, while filing the present petition, as if the present petition was the first one in point of time. Thus, it can be safely concluded that the petitioner has tried to overreach this Court by concealing the material facts.
The petitioner has projected the facts before this Court in a distorted manner, posing to be completely innocent, about the many writ petitions filed before this Court, before the Hon'ble Supreme Court, as well as the civil suit. Thus, it is unhesitatingly held that the petitioner has not approached this Court with clean hands. Neither the law nor the equity is in favour of the petitioner. Civil Writ Petition No. 2171 of 2011 11
Considering the totality of facts and circumstances of the present case noted above, coupled with the reasons aforementioned, we are of the considered opinion that the instant writ petition, being bereft of any merit and without any substance, must fail.
Resultantly, the writ petition is ordered to be dismissed with costs, which are quantified at ` 1,00,000/- (Rupees one lac). The costs shall be deposited by the petitioner with the Haryana State Legal Services Authority, within a period of three months from today. In case the amount is not deposited by the petitioner within the stipulated period of three months, the Secretary of Haryana State Legal Services Authority, shall be competent to recover the amount of costs from the petitioner, in accordance with law.
(JASBIR SINGH) (RAMESHWAR SINGH MALIK)
JUDGE JUDGE
03.10.2012
Ak Sharma
Civil Writ Petition No. 2171 of 2011 12