Punjab-Haryana High Court
Minder And Others vs State Of Haryana And Others on 30 October, 2012
Bench: Jasbir Singh, Rameshwar Singh Malik
CWP No. 15164 of 2011 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
*****
CWP No. 15164 of 2011
Date of decision : 30.10.2012
Minder and others .......Petitioners
Vs.
State of Haryana and others .......Respondents
CORAM: Hon'ble Mr. Justice Jasbir Singh
Hon'ble Mr. Justice Rameshwar Singh Malik
Present:- Mr. Puneet Bali, Senior Advocate with
Mr. Vibhav Jain, Advocate, for the petitioners
Mr. Vinod S. Bhardwaj, Addl. AG, Haryana
Mr. Ashok Aggarwal, Senior Advocate with
Mr. Mukul Aggarwal, Advocate, for respondents No. 4 to 6
Mr. Sanjeev Sharma, Senior Advocate with
Mr. Shekhar Verma, Advocate, for respondents No. 7 to 9
Mr. R.S. Rai, Senior Advocate with
Mr. Akshay Bhan, Advocate, for respondent No.10
JASBIR SINGH, J. (Oral)
By filing this writ petition, the petitioners pray for quashing License No. 19 of 2008 dated 4.2.2008 (P-13) which, it is stated, having been granted contrary to the provisions of Haryana Development and Regulation of Urban Areas Act, 1975 (in short 'the Act') and the Rules framed thereunder.
Notice of motion was issued in this case on 18.8.2011 and the matter was adjourned to 2.9.2011 on which date the State counsel raised an objection that the writ petition cannot be entertained because the order under challenge is appealable and it can be challenged in revision also. Counsel for the petitioners sought time to address the arguments on the CWP No. 15164 of 2011 -2- above preliminary objection. Thereafter, separate replies were filed by respondents No. 4 to 10, also raising the above preliminary objection only and not on the merits of the case. At the time of hearing, above objection was again raised.
However, when we have gone through the notings on the file, which were entered into by the officials of the department regarding grant of license to the petitioners, tentatively, we are satisfied that contrary to the provisions of the Act and the Rules framed thereunder and the terms and conditions of the policy, license, in dispute, has been given.
It has come on record that respondents No. 5 and 6 filed an application for grant of license for a commercial colony on 12.3.2007 for land measuring 7.15 acres. That license was granted on 4.2.2008. It is on record that before grant of licence, most of the land was transferred by respondent No.5. It is necessary to mention here that respondent No.5 was the owner of 6 acres of land and respondent No.6 was the owner of 1.07 acres of land.
From reading of the notings on the file, it is clear that respondent No.5 has sold approximately its entire land before grant of license to respondents No. 8 and 9. By mentioning as above, it is stated that when license was granted, respondents No.5 and 6 were not the owners of any land for which license was given. It is also brought to our notice that before grant of license, Letter of Intent (LOI) was issued on 31.12.2007 (P-10). In response thereto, an undertaking was given by respondents No.5 and 6 that they were still owners of the land for which CWP No. 15164 of 2011 -3- grant of license was applied.
Admittedly, the land was sold prior thereto. It has also come on record that before grant of license, a certificate was given by the Patwari dated 16.1.2008 (P-11) showing respondents No.5 and 6 as owners of the land, which was not correct as per revenue record. The above certificate was given, ignoring the sale deeds and also the mutation entered thereon. As per the provisions of the Act, license can be granted only if, at the time of issuance of Letter of Intent (LOI), the applicant is owner of the land and not otherwise. Thereafter, the land is supposed to be transferred only after getting permission from the department and not otherwise.
It has come on record that to overcome the deficiency, as indicated above, a suit was filed and in a collusive manner, the sale deeds were got declared null and void on 26.7.2010. It has come on record that the land was transferred on 11.12.2008 and the license was sought to be transferred in favour of respondent No.7. It appears that thereafter, license was transferred in the name of respondent No.10 in the month of February 2011.
To show the discrepancies in the grant of license, the petitioners have placed reliance upon information which they get under the Right to Information Act, 2005, reading of which indicates that noting many deficiencies in the grant of license, process to cancel it was contemplated. Relevant portion of the notings on the case on file, reads thus :-
"Reference observations of W/DTCP on NP/62-63.
As already pointed out in the office note at NP/61-62, at the CWP No. 15164 of 2011 -4- time of submission of application for grant of Licence, the land was in the name of M/s Garland Estates Pvt. Ltd. And M/s Hammock Buildwell Pvt. Ltd. However, when the application was still under consideration and before the grant of licence, M/s Garland Estates Pvt. Ltd. Sold land measuring 5.025 Acres to M/s Progeny Buildcon Pvt. Ltd. Vide Sale Deeds dated 11.4.2007, without informing this office. Therefore, licence was granted in February 2008 in the name of M/s Garland Estates Pvt. Ltd. However, to cover up this lapse, M/s Progeny Buildcon Pvt. Ltd. Again sold this land on 1.8.2008 to M/s Garland Estates Pvt. Ltd. Further, M/s Garland Estates Pvt. Ltd. had sold this land to M/s Aparjit Promoters Pvt. Ltd. And permission to transfer the licence in principle was granted on 12.1.2009 subject to the fulfillment of certain conditions but even before grant of such permission, the land was transferred in the name of M/s Aparjit Promoters Pvt. Ltd. Whereas, as per procedure, the land could only be transferred/sold to the transferee company after grant of necessary permission by the department. Thus, the licensee company has violated the provisions of the Act of 1975 because the licence is still in the name of M/s Garland Estates Pvt. Ltd. And the land is in the name of M/s Aparjit Promoters Pvt. Ltd.
As per Section 3 of the Act of 1975 and Rule 8 of Rules of 1976, title of the land for which licence has been applied/is granted is a must. The licensee cannot transfer the ownership of the land without permission of the Department and if he violates this condition, it amounts to a violation under Section 10(1) of the Act of 1975 and therefore, F.I.R. Can be lodged against the licensee. Even otherwise by making false representation, he has also committed offence under the provisions of IPC. The above said clarification, if agree, may be submitted for the kind notice of W/DTCP."
"The clarification given by the office on NP/63 with reference to the observations of W/DTCP on NP/62.63 may kindly be perused.
Definitely, the Licensee company has violated the provisions CWP No. 15164 of 2011 -5- of the Act of 1975 and the grant of licence. Though, permission to transfer the licence to M/s Aparjit Promoters Pvt. Ltd. In principle has been considered by the Department and the transferor-Company has been directed to transfer the land in the name of transferee company i.e./ M/s Aparjit Promoters Pvt. Ltd. But the transferor company has transferred the land even before grant of such permission.
In view of the above said position, case is submitted for taking further orders/decision in this matter please."
"From the facts and circumstances of the case, it is clear that when the licence was granted in February, 08 to M/s Garland Estates Pvt. Ltd. And M/s Hammock Buildewell Pvt. Ltd., the land measuring 5.025 Acres was not in the name of the applicants. Therefore, the licence is void ab initio even though the land has been transferred in the names of the applicants by M/s Progeny Buildcon Pvt. Ltd. Subsequently after grant of licence. Therefore, Show Cause Notice may be issued as to why licence may not be cancelled and an FIR under the provisions of law may not be lodged. A time of 15 days may be given to submit reply to Show Cause Notice."
Reading of the above notings indicate that there were large number of discrepancies and therefore, show cause notice was issued for cancellation of the license, to which reply was filed and proceedings were dropped.
It has also come on record that in the meantime, second legal opinion was sought which went in favour of the licensees stating that there is no violation of terms and conditions of the Grant of License. Perusal of the file tentatively indicates that license was not granted as per the provisions of the Act. This petition cannot be dismissed simply on the ground that the petitioners have no locus standi to challenge the license granted to the respondents and further that appeal/revision is competent CWP No. 15164 of 2011 -6- against the grant of license. It has come on record that certificates were given by the Revenue Officers to show that respondents No.5 and 6 were owners when license was issued which tentatively indicates that license was granted to respondents No.5 and 6 contrary to provisions of the Act, rules and the policy framed in that regard whereas most of the land was sold by respondent No.5 much before the time when certificate was given in connivance of the Government officials to defeat provisions of law established on record.
Under the circumstances and taking note of gravity of the facts on record, we ordered that this writ petition be treated as public interest litigation. Let the matter be put up before the Hon'ble Chief Justice for an appropriate order on 6.11.2012.
The Court appoints Mr. Puneet Bali, Senior Advocate as Amicus Curiae to assist the Court in this matter.
Service is complete. Counsel for the respondents are directed to file their respective replies on merits.
This order will not prejudice the rights of the parties and it will be open to all the parties to raise all objections before the concerned Bench.
(Jasbir Singh) Judge (Rameshwar Singh Malik) Judge 30.10.2012 Ashwani