Punjab-Haryana High Court
S. Sukhdev Singh Sill And Ors. vs State Of Punjab And Ors. on 15 November, 1985
Equivalent citations: AIR1986P&H167, AIR 1986 PUNJAB AND HARYANA 167, (1986) 1 LANDLR 650, 1986 REVLR 103, 1986 PUNJ LJ 126
ORDER
1. The petitioners are the holders/owners of the residential plots in residential Phase VII of Sahibzada Ajit Singh Nagar (S.A.A. Nagar) (Mohali),district Ropar, set up under the Punjab Urban Estates (Development and Regulation)Act, 1964.The petitioners claim that they were attracted by the lay out plan of Phase VII which was prepared by respondent No. 4 under Rule3(xxxi)of the Punjab Urban Estates (Development and Regulation)Rules 1974(hereafter referred to as the Rules). The petitioners have appended with the petition plan Annexure P. 1, which they claim to be the lay out plan. In Annexure P. 1, a piece of land marked in red is shown as kept reserved for Primary and Higher Secondary school and the land marked in green was kept for Community Centre. The petitioners claim that they were burdened with cost of the said reserved land marked in red and green while fixing the sale price of the plots allotted to the plot-holders. They consented to the allotment of the plots keeping in view the amenities to be provide to them as per plan Annexure P.1.A meeting was held on 27-5-1980 in the room of Secretary to Government Punjab, Local Government and Urban Development Department(S.L.U.D.) regarding allotment of land to religious/social/educational institution in the said urban estate, the proceedings of the meeting were issued vide memo dated 12-6-1980, Annexure P.2. In this meeting, it was decided to allot the site kept for the Community centre marked green to Shri Radha Swami Satsang Bhawan and the sits marked red to Simla Chandigarh Diocese Society for setting up Church and convent School.
2. The petitioners have challenged the legality and validity of the decision as comprised in minutes of the meeting issued vide Annexure P.2.According to them the value and utility of their plots have diminished because of the decision Annexure P.2.The lay our plan of Phase VII has been changed after a long period of 5 years; the petitioners are in need of the amenities like community Centre and Primary and Higher Secondary Schools as provided in Annexure P.1 and that the decision Annexure p.2 would cause a lot of inconvenience to the residence of Primary /Higher secondary Schools and Community Centre have been taken away by the respondents without providing such amenities anywhere in Phase VII They contend that Phase VII which is spread over an area of 275 acres shall have about 2000 house with a population of about 50,000 persons, but that has been left without a Community Centre and a Primary and Higher Secondary School; they alleged that they purchased the plot on the basis of attraction given in plan Annexure P.1; they plead promissory estoppel against the State of Punjab and contend that the respondents are bound in law to honour the commitment made in buildings and the Community Centres was to be provided to the Education Department free of costs for establishment of schools and the Community Centres.
3. The petition has been contested by the respondents as also by the added respondents including Shri Radha Swami Satsang Bhawan and some plot holders in Phase VII who were added as respondents on their application under Order 1 Rule 10, Civil Procedure Code.
4. The respondents admitted that a site shown in red was reserved for Primary and Higher Secondary Schools and another site shown in green was reserved for Community Centre in the numbering plan of Phase VII of S.A.S. Nagar. It has been pointed our that the plan Annexures P-1 is not a lay out plan as defined in Rule 3(xxxi) but only a numbering plan. This plan was simply meant for the purpose of allotment/sale of sites and not for any other purpose as in clear from the note contained on this plan which to the following effect:--
"This numbering plan is meant to be used for the purpose of allotment /sale of sites only and not for any other use whatsoever".
It is further stated by the respondents that in the "Zoning Plan" under Rule 3(viii) of the Rules, these sites were shown as reserved for special use and the Zoning Plan permits the use of the land as follows:--
"Public and community Building, Public services utilities or use as determined by the Chief Administrator in consultation with the Chief Town Planner, Punjab and contained in supplementary Zoning Plan."
The blue print of the Zoning Plan has been produced as Annexures R-1. The respondents further submitted that wile fixing the rates of residential plots of Phase VII, S.A.S. Nagar, a sum of Rs.26.56 lacs was provided for schools, cremation grounds and public utility buildings i.e. Community Centres, Schools, Dispensaries and other utility services. This sum was worked out @ Rs.10,000/- per acre for 26580 acres of land of Phase VII, S.A.S. Nagar. It was denied that this amount was charged on account of price of the sites reserved for school and Community Centre. Urban Estate, S.A.S. Nagar It was further contended that it being developed as a project and the amenities like school and Community Centre are to be provided keeping in view the needs of the project as a whole for which the allottees of all the phases are liable to pay.
5. The learned counsel for the petitioners raised tow-fold contentions. Firstly he submitted that the provision for the Higher Secondary and Primary School sites and the Community Centre in the plan Annexure P-1 could not be taken away form the residents of Phase VII. S. A. S. Nagar. According to him, the rules did not permit change of purpose of these sites mentioned in plan Annexure P-1. This contention appears to be without merit. Plan Annexure P-1 is a numbering plan as it is clearly so titles. Such a plan has no legal sanctity. It is not lay out plan within the meaning of Rule 3(xxxi) of the Rules. The respondents have produced a copy of the Zoning Plan prepared within the meaning of Rule 3(1)(viii)of the Rules which is Annexure R-1. In this plan the sites in question are shown in diagonal dots and diagonal lines which sites as described in plan Annexure R-1 are reserved for special use i. e. for public and community buildings, public services utilities of use as determined by the Chief Administrator in consultation with the Chief Town planner and contained in the supplementary Zoning Plan. "Public Building" is defined in Rule 3(xxxx)of the Rules as under:--
"Public Building means a buildings used of constructed to be used, either ordinarily or ordinarily or occasionally as a place of public worship, or hospital, or college, or school, or entertainment for persons admitted thereto by tickets or otherwise or used or constructed or adapted to be used either ordinarily or occasionally for any other public purposes."
Rule 13 of the Rules provides that the type and character of building, including ancillary buildings that may be erected or re-erected on a site and the purpose for which these may be used, shall be such as may be shown in the Zoning Plan and building control sheet as may be applicable to the site. Thus, the purpose for which an area reserved for special use is to be determined by the Chief Administrator in consultation with the Chief Town Planner. There is o bar provided in the rules against subsequent change in the nature of the public use of any particular site approved by the aforesaid authorities. I find support for this view from a Single Bench judgment of this Court in civil Writ No. 3065 of 1969 decided on 22-5-1970, (Mohinder Kaur v. Chief Commr., Union Territory, Chandigarh wherein provisions analogous to Rule 3 (xxxx)and Rule 13of the Punjab Urban Estate (Development and Regulation) Rule,1974, Came up for consideration. It was held therein as under:--
"There is nothing in the Zonal Plan or in the Act or the Rules to suggest that public spaces could be used only as public parks. 'Amenity' as defined in Section 2(b) would include a public building and any other public utility service provided by the authorities at Chandigarh. 'Public building 'is then defined in Rule 2(xxxviii) to include a building used or constructed or adapted to be used either ordinarily or occasionally as a hospital or for any similar public purpose."
In Mohinder Kaur's(supra) construction of a mortuary at a space reserved in the Zonal Plan as a public space though it was near the residential house of the petitioner therein was not considered to be violative of the Capital of Punjab (Development and Regulation)Act, 1952 and the rules made thereunder. Since the place of worship comes within the definition of 'public building' as contained in Rule 3 (xxxx) and according to the Zonal Plan spaces in question reserved for special use could be used for public building, I do not find any force in the contention of the learned counsel for the petitioners that the proposed change of user of the spaces in question form schools or Community Centre to Church-cum-Convent school and Shri Radha Swami Satsang Bhawan, which without dispute would be a place of public worship, would be violative of any law particularly when all such building come within the scope of special use' as described in the Zonal Plan Annexure R-1. The view that I have taken also finds support from a judgment of this Court in Maya Devi Chandigarh Administration, 1973 Pun LJ 691:(AIR1974 Punj 100), wherein it was held as under:--
"Under the Punjab Capital (Development and Regulation) Building Rules, 1952,the restrictions in the Zoning Plan and the Schedule of clauses appended thereto are to be complied with. It has not been stated in the Rules that the lay-out plans have got any statutory sanction behind them. If there is any breach in the user of the building, no person under the Rules has got a right to come to the High Court under Article 226 of the constitution of India.
From the definition of Zoning Plan and Rule 19 of the Rules, it will be clear that only breach of Zoning Plan will give a cause of action. If in lay out it has been mentioned that particular piece of land will be used for a particular purpose, that can be changed in accordance with the Rules."
6. The contention of the learned counsel is that respondents Nos.1 to 4 are estopped form changing the proposed use of the spaces in question. The plea of the petitioners that the price which they paid for their plots included the price for the Primary and Higher Secondary School and Community Centre in Phase VII has been squarely met with by respondents Nos.1 to 4 by categorically staring that the Urban Estate Mohali is a project which is being development as a whole. No doubt while working our the rates for residential plots a sum of Rs.26.56 lacs has been added for schools, cremation grounds and public utility buildings such as Community Centres, schools, cremation grounds and public utility services, the petitioners cannot contend that they paid the additional price particularly for the Primary and the Higher Secondary School and the Community Centre on the spaces in question. The learned counsel for the petitioners, however, addressed at length to bring home his contention that the respondents Nos.1 to 4 were bound by the rule of promissory estoppel. According to him since in the numbering plan the sites in question are described for use as Primary and Higher Secondary Schools and Community Centre in Phase VII of S.A.S. Nagar, the respondents Nos. 1 to 4 could not shift the provision of the aforesaid amenities to some other phase of the Urban Estate of S. A. S. Nagar and could not instead allot the sites for the purpose of establishment of a Convent school, and a Satsang Bhawan. The learned counsel placed reliance on Century Spinning and Manufacturing Co. Ltd v. Ulhasnagar Municipal; Council, (1970)1 SCC 582: (AIR 1971 SC 1021). In this case estoppel was pleaded and upheld against the Municipal Council which had held out that whosoever established a factory within the area called the "Industrial Area" shall not be liable to pay octroi duty in respect of goods imported as raw material for consumption in such factory for a particular period. Later when the appellant therein established its factory, the Municipal Council levied octroi before the expiry of the period for which the exemption from octroi was promised. This precedent, in my view, has no parity with the facts in hand Reliance by the learned counsel on N. Ramanatha Pillai v.State of Kerala, AIR 1973 SC 2641 is also of no avail. It was held by their Lordships in that case hat as a general rule the doctrine of estoppel will not be applied against the State in its governmental, public or sovereign capacity. An exception however arises where it is necessary to prevent fraud or manifest injustice. The learned counsel than relied on Moti Lal Padampat Sugar Mills Co. Ltd. v. State of U.P.,AIR 1979 SC621 which apparently departs from the view earlier taken by the Supreme Court in Excise Commr., U.P. Allahabad v. Ram Kumar, AIR, AIR1976 SC 2237. Both these judgments came up for consideration before a Division Bench of this court in Madan Lal. State of Punjab, (1980)82 Pun LR 409:(AIR1980 Punj &Har 88)and another Division Bench of this Court in Des Raj Juneja v Union of India, ILR (1979)1 Punj & Har 388. I would do no better than quote from Des Raj Juneja's case (supra):
"Thus, according to the law laid down in Ram Kumar's case (supra) there can be no promissory estoppel or equitable estoppel against the Government, in exercise of its sovereign, legislative or executive functions, whereas according to the ratio of the decision in Motilal Padampat Sugar Mills' case (supra) the Government while exercising its executive functions cannot claim immunity from this doctrine and is bound by its promises and assurances unless facts can be proved showing the overriding consideration of public interest and equity in its favour not to be hampered by estoppel arising from its provision. There appears to be apparent divergence of opinion of promissory estoppel between the two latest judgments of the Supreme Court. Faced with this delicate situation, this Court is called upon to chalk out a course for itself. The same depends on the answer to the question. The decision of which judgment is binding on the High Court as declaration of law as envisaged under Article 141 of the Constitution and then concluded-
"In the present case, the decision in Ram Kumar's case, (supra), wherein it was expressly held that there cannot be any promissory estoppel against the Government, while performing its sovereign, legislative and executive functions, is by a four Judge Bench whereas the one in Moti Lal Padampat Sugar Mills' case (supra) is by a Bench of two judges though the same is later in point of time Keeping in view the dictum of law by the Supreme Court itself in the above-mentioned, two decisions, I am bound by the law as laid down in Ram Kumar's case(supra)"
On the other hand, the learned counsel for the respondents have cited State of Punjab v. Amrit Banaspati Co. Ltd., AIR 1977 Punj & Har 268, a Division Bench judgment of this Court where after discussing catena of judgments of the Supreme Court, the Division Bench of this Court held as under:--
"While there can hardly be any dispute that there cannot be any estoppel against the Government in the exercise of its legislative or sovereign power, there can also be no dispute that there can be no estoppel against the Government in the exercise of its executive powers in so far as policy matters are concerned. In other words, the Government cannot be confined to a particular policy for perpetuity but has the liberty o change or revise the policy from time to time according to the exigencies of circumstances and the demands of the public interest.
Now to appreciate the interest involved in the change of user of the site it would be appropriate to quote in extenso the relevant parts of the minutes of the minutes of the meeting held under the Chairmanship of S.L.U.D. on 27-5-1980 issued vide Annexure P-2:--
"Shri Radha Swamy Satsang Bhawan had made a request for the allotment of land measuring 3 acres. S.L.U.D. had made it clear that as per discussions with their representatives, the Sabha was interested in land of about one acre only, and not 3 acres, as applied for by them. The office had suggested the allotment of land falling in Phase IIIB.2,measuring 1.4 acres, to the Satsang. However, it was made clear by S. L U. D. in the meeting that the Satsang's representative Shri Dalip Singh had met her, and had voiced opposition to the allotment of land near a Gurdwara. which stood already constructed on a part of this site; and had requested for allotment of a site in Phase VII, which was a central place.
7. Keeping in view the request of the Radha Swamy Satsang Beas, it was decided that the land originally reserved for the Community Centre, in Phase VII, the area of which was about the same as the balance site, marked as VI, in Phase IIIB.2 may be allotted to Shri Radha Swamy Satsang Bhawan, and the balance land, originally reserved for religious purposes in Phase IIIB.2.be reserved for Community Centre. Shri M. S. Deol, PCS officiating as Director, Housing and Urban Development, and Chief Administrator, concurred to the alteration and actual exchange of land use of these two sites. S.L.U.D. observed that allotment of adjoining sites to followers of two different religions would be a serious error, which the Committee should not allow itself to fall into, as such a faulty location would inevitably lead to clashes between the two institutions, sooner or later, thereby vitiating the atmosphere of the entire Urban Estate, and would also lead to creation of law and order problem. C.T.P. also concurred with the proposed alteration, which was, therefore, allowed; and the Community Centre site, falling in Phase VII, and measuring 1.72 acres, was allotted to the Radha Swamy Satsang Beas, and the balance area of site, marked as VI in Phase III.B-2 was reserved for Community Centre.................."
"The Simla Chandigarh Diocese Society had put up two request with the Department_ one for the allotment of land measuring 5 acres, for setting up of Convent School and other, measuring 0.5 acre for establishment of a Church. It was felt by the Committee that the existence of a Convent School and that too in the middle of the Urban Estate_ was absolutely necessary for the proper development of the Urban Estate. It was therefore, felt that the land measuring 5.5acres, reserved for High School in Phase 7, and marked as No.23 he allotted to them, as recommended by the office, because they would be utilising 5 acres for the High School, and the remaining half an acre for the Church; and the price of the land could be charged depending upon the land used by them. The Chief Architect pointed our that as the convent schools had Nursery Units and Primary Units also within the same premises, the area, measuring 5.5acres only would not be sufficient for running this type of school. It was thereupon unanimously decided that the society may be asked to take up the entire land marked as sites Nos.23 and (Site No.24 is reserved for Primary School),with the total area, measuring 7.6 acres out of which 7 acres would be utilised for the running of the Convent School, and balance 6 acres for the Church; and the price charged accordingly."
It may be noted that the Director Housing and Urban Development of Urban Estates under the Punjab Urban Estates (Development and Regulation) Act, 1964. He is also the chief Town Planner who according to Rule 13 of the rules have the power to decide the user of a site, were present in the aforesaid meeting and concurred to the decision mentioned above It is clear from the minutes of the meeting that it was in accord with the public policy and in the interest of public order and peace and harmony that the change of the user of the sites was decided upon by the competent authorities. This is clearly a governmental and executive function in consonance with the existing circumstances and the demands of the public interest. Therefore the rule of promissory estoppel would not apply in such a situation.
8. In view of the above discussion of the different aspects of the case, I find no merit in this petition. The same is, therefore dismissed. There shall, however, be no order as to costs.
9. Petition dismissed.