Punjab-Haryana High Court
The Hill View Co-Operative And House ... vs State Of Haryana & Ors on 3 February, 2011
Bench: Jasbir Singh, Rakesh Kuamr Garg
Civil Writ Petition No.4992 of 2010 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Civil Writ Petition No.4992 of 2010
Date of decision: 03.02.2010
The Hill View Co-operative and House Building Society Ltd., Pinjore
....petitioner
Versus
State of Haryana & ors.
.....respondents
CORAM: HON'BLE MR.JUSTICE JASBIR SINGH
HON'BLE MR.JUSTICE RAKESH KUAMR GARG
Present: Mr.Kanwaljit Singh, Senior Advocate with
Mr.Arvind Singh, Advocate
for the petitioner
Mr.Sanjiv Gupta, Advocate with
Mr.Gaurav Singh, Advocate
Ms.Palika Monga, DAG Haryana
Mr.Arun Walia, Advocate
for respondent No.3-HUDA
***
JASBIR SINGH, J.(ORAL):
This order will dispose of seven Civil Writ Petitions bearing No.4992 of 2010, 5352 of 2010, 5252 of 2010, 5408 of 2010, 5411 of 2010, 6961 of 2010, 13297 of 2010 involving similar question of law and facts. For the purpose of dictation facts are taken from CWP No.4992 of 2010.
Petitioner is a Co-operative and House Building Society consisting of 77 members. This writ petition has been filed to lay challenge to a notification issued on 26.09.2007(P-5) under Section 4 of the Land Acquisition Act, 1894(in short 'the Act') proposing to acquire 809.75 acres of land for a public purpose namely 'for the development and utilisation of land as residential area for Sector 2, (Part) 3,4 and 5, Pinjore,' to be developed under the Haryana Urban Development Authority Act, 1977(in Civil Writ Petition No.4992 of 2010 2 short 'the 1977 Act'). Further challenge has been made to a notification issued under Section 6 of the Act declaring an intention of the authorities to acquire 673.29 acres of land.
It is contention of the petitioner that the Society was registered in the year 1983. It purchased the land in dispute in the year 1982-84 total measuring 45 bighas and 12 biswas(approximately 9.5 acres), 77 plots were carved out in the said colony after leaving area for roads and other common infrastructure. The plots were allotted to its members in the year 1984-85. To say so, reference was made to the copy of a jamabandi for the year 2004-05. It is further case of the petitioner that the plotted housing colony was carved out after preparing a lay out plan and after allotment of the plots to its members they have raised construction of residential houses of 'A' Class construction, thereon. To say that colony is a regulated one, as per the lay out plan, reference was made to a document Annexure P-2. It is further stated that in the lay out plan provisions were also made to provide the sewerage system and water supply. Road material was also compressed through a road roller hired from the PWD Department. It is specifically mentioned that full-fledged houses exist in approximately 14/15 plots. By stating that the society is using the land for the same purpose for which it is going to be acquired by the respondents, prayer has been made to release the land owned by the petitioner. It is also averred that the release of the plotted colony will not hamper the overall scheme for which the State authorities are going to acquire the land in question. It is further case of the petitioner that even the Land Acquisition Collector had recommended release of the land owned by the petitioner, however, without indicating any fault in the recommendation it was not acted upon and the land of the petitioner was made subject matter of the acquisition. To show that construction exists in the land owned by the petitioner, reference was made to the photographs Civil Writ Petition No.4992 of 2010 3 (Annexure P-3) which indicates that some houses are in existence.
Upon notice, reply was filed, wherein claim of the petitioner was contested on a ground that the petitioner by carving out a colony has violated the provisions of The Haryana Development and Regulation of Urban Areas Act, 1975 and also the provisions of Punjab New Capital (Periphery)Control Act, 1952. It is specific case of respondents that before development of the colony no application was moved to the competent authority and furthermore construction was raised without getting the building plans approved from any competent authority. It is also stated that on getting report of the Land Acquisition Collector, matter was put up before a Joint Inspection Committee of which the Land Acquisition Collector was also a member and on survey of the spot it was recommended that 14/15 plots with construction be released from acquisition and rest of the vacant plots owned by the petitioner be acquired.
Counsel for the petitioner Mr.Kanwaljit Singh, Senior Advocate has raised arguments in the line of facts noted above.
It is an admitted fact that earlier also the petitioner came to this court by filing Civil Writ Petition No.20793 of 2008 which was disposed of on 03.08.2009 by observing as under:
"Learned counsel for the petitioner seeks an adjournment so as to enable them to move representations to the concerned authorities seeking approval of the layout plan for the project envisaged by the Hill View Co-operative and House Building Society Ltd. specially pertaining to the land which is subject matter of acquisition proceedings.
Needful be done within two weeks from today.
The respondents shall consider the representations/applications filed by the petitioners and Civil Writ Petition No.4992 of 2010 4 dispose of the same in accordance with law. List again on 07.12.2009."
In terms of an opportunity granted by this Court, petitioner filed a representation for release of its land which was rejected by District Town Planner, Panchkula vide order dated 19.01.2010. Relevant portion of the order reads thus:
"I have gone through the above representation and also examined the office record and accordingly following emerges:
(i) That "The Haryana Development and Regulation of Urban Areas Act, 1975(hereinafter referred as Act No.8 of 1975) was enacted by the Legislature of the State of Haryana in the State of Haryana "to regulate the use of land in order to prevent ill-planned and haphazard urbanisation in or around towns in the State of Haryana".
(ii)As per Section 3(1)of Act No.8 of 1975, "Any owner desiring to convert his land into a colony shall, unless exempted under Section 9, make an application to the Director, for the grant of licence to develop a colony in the prescribed form and pay for its such fee and conversion charges as may be prescribed..."
(iii)Further, as per Section 7 of Act No.8 of 1975, no person including a property dealer, without obtaining a licence under Section 3, shall transfer or agree to transfer in any manner plots in a colony or make an advertisement or receive any amount in respect thereof. In addition, the erection/re-erection of any building in any colony is also prohibited, if the licence is not obtained under Section 3 of Act No.8 of 1975.
Civil Writ Petition No.4992 of 2010 5
(iv)The land/colony of the applicant society is situated in Urban Area of Pinjore-Kalka, which as per Section 2(o) of the Act No.8 of 1975, exists within the municipal limits as well as upto five kilometers from the municipal limits of Pinjore and Kalka Municipal Committee. Since, the act of the Society for setting up a colony without obtaining licence under above Act is violation of the provisions of the Act No.8 of 1975, necessary legal notices have been issued by the Enforcement Wing under Section 7(i) of the Act No.8 of 1975 to the offenders for carving out of colony in the khasra nos.wherein the said colony is situated. Further, if any person/association, contravenes the provisions of the Act No.8 of 1975, the offence is punishable unde Section 10 of the said Act, which are applicable in case of applicant petitioner also.
(v)Further, for ensuring healthy living conditions in a residential colony, the regular availability of potable water supply and disposal of sewerage is required, either by way of making internal adequate arrangements or by connecting it to the Water Works/Sewerage Treatment Plan etc. which are part of external infrastructures of any development agency or any local municipal authority. But the applicant petitioners has not submitted any such scheme.
(vi)Since, no application has been made by the applicant society for obtaining licence for development of colony, therefore the provisions of Section 3A, 3B, 5 & 7 of the Act 8 of 1975 regarding Establishment of Fund, Erection or Re-erection of buildings in a licenced colony, Cost of Civil Writ Petition No.4992 of 2010 6 development works, Prohibition to advertise and transfer plots etc., has not been complied with, which otherwise is pre-requisite for establishment of a colony as per provisions of Act ibid.
(vii)That the area of the colony falls in the Periphery Controlled Area(Haryana Portion) notified under Section 3 of the "The Punjab New Capital(Pheriphery)Control Act, 1953"(hereinafter referred as Act 1 of 1953). The Section 5 of Act 1 of 1953 also put restrictions over erection/re- erection of any building or excavation or layout any means of access to a road in the periphery controlled area without prior permission of the Director. Since, applicant society hasn't taken any permission from the Department for setting up of said colony till date, hence, the said act of the applicant society is the violation of the provisions of Act 1 of 1953 also.
(viii)Though the purpose of acquisition is residential, but it doesn't mean that it legalizes the unauthorized activity of the society. Moreover, the Joint Site Inspection Committee, having Land Acquisition Officer also as its member headed by the Administrator(HUDA), Panchkula, had decided in its meeting/site visit dated 19.08.2008 to acquire the vacant land of the colony after exempting the houses, as also confirmed in the representation by the applicant, which were in existence prior to publication of notification under Section 4 of the Land Acquisition Act, 1894.
(ix)As per approved circulation plan of the area, certain area of the colony developed by the applicant-society would fall Civil Writ Petition No.4992 of 2010 7 under sector roads also, thereby affecting overall circulation of Pinjore-Kalka Urban Complex.
(x)Moreover, the Khasra No. 66, 67 of village Nagal Sodian, wherein a part of the colony developed by the applicant society is situated, stands notified by the Irrigation Department for construction of Koshalya Dam. However, due to lack of partition (tatima) of the said Khasra nos.,the exact area falling within said colony and proposed Dam is not distinguishable till complete revenue documents are available.
(xi)That as per rule-4 of Haryana Development and Regulation of Urban Area Rules, 1976 "In the layout plan of a colony, other than an industrial colony, the land reserved for roads, open spaces, schools, public and community buildings and other common uses shall not be less than forty five percent of the gross area of the land under the colony". In the colony developed by the applicant society, such area is even less than 20%, which is not acceptable as per existing norms referred above.
(xii)The State Government has formulated a policy regarding grant of licence to Cooperative Housing Societies, which stands circulated vide Memo No. 7/16/2006-2TCP dated 15.9.2008. As per these policy guidelines, following Registered Cooperative House Building Societies of following categories are eligible for obtaining licence:-
1. The licence application of only those Registered Cooperative House Building Society will be considered for grant of licence who have a collaboration agreement with the builders/developers having the financial capacity to Civil Writ Petition No.4992 of 2010 8 undertake the development and technical expertise in development of residential colonies.
2. The Welfare Organizations registered as societies and sponsored by the Central/State Government Departments and Government organizations for creating housing infrastructure for their employees like AWHO, CGEWHO, IRWO, HEWO etc. have already been considered for grant of licence for group housing colonies vide memo No. 5/23/2006-2TCP dated 2.7.2007.
Since, the applicant society has not substantiated the category to which it belongs and proofs thereof, therefore, the same cannot be considered under the said policy.
(xiii) As per policy guideline issued by the State Government vide Memo No. 7/16/2006-2TCP dated 19.12.2006, the minimum area requirement for development of a residential plotted colony in High Potential Areas like; Periphery Controlled Area is 100 acres, while the area of the residential plotted colony developed by the applicant society i.e. 45 bighas 12 biswas (approx. 9.5 acres) is much less than the prescribed area.
(xiv) That the applicant petitioner has not submitted this application in prescribed form LC-1 to be accompanied with requisite scrutiny fee, licence fee and plans etc. as prescribed under above mentioned Act/Rules.
In view of the above mentioned grounds, the layout plan neither fulfils provisions of Act No. 8 of 1975 nor Policy guidelines issued by the Government. Moreover, prior to approval of the layout plan, licence is Civil Writ Petition No.4992 of 2010 9 required under provisions of Act No. 8 of 1975, which have not been obtained by the society. Therefore, the layout plan submitted by the applicant society can not be considered for approval."
A perusal of the contents of the order mentioned above, indicates that to set up a plotted colony, minimum 100 acres of land is required. It is contention of the petitioner that at the time when colony was planned only 25 acres of land was needed, even then no relief can be granted to it for carving out a plotted colony in an area measuring only about 9.5 acres. It is not in dispute that before setting up the colony no permission was sought as is necessary under the provisions of the 1975 Act. As per facts on record by carving out an unauthorised colony the petitioner(its functionaries) has made itself liable for penal consequences. It is also not in dispute that the society has contravened the provisions of the Punjab New Capital(Periphery)Control Act, 1952. It has also come on record that as per the policy of the State Government, to grant a licence to develop a colony to a Co-operative Society, minimum required land is 100 acres and furthermore, as per that policy, in a licenced colony,the land to be reserved for infrastructure facilities is supposed to be more than 45%, whereas, in the colony in dispute the area for the roads etc. has been left only up to the extent of 20%. If that is so, we feel that no concession can be given to the petitioner.
It is an admitted fact that about 14/15 plots with construction thereon were released from acquisition. Prayer of the petitioner is for release of the vacant plots. Counsel for the petitioner has failed to show even a single instance in which vacant plot of land was released in favour of any other landowner. As such, it is also not a case of discrimination with the petitioner. So far as contention of the petitioner that after releasing 15 houses/plots from acquisition, it will not be possible for Civil Writ Petition No.4992 of 2010 10 the authorities to develop rest of the area, this Court cannot issue any direction, at this stage. It is concern of the respondents to use that area and amalgamate the same with rest of the land as per their convenience. At the time of arguments, it was brought to our notice that most of the area under the plots is earmarked and needed for Sector/roads and to construct the Koshalya Dam.
In Civil Writ Petition No.5252 of 2010, an additional point was raised by Mr.Sanjiv Gupta, Advocate, counsel for the petitioner that by not releasing the built up house of the petitioner, discrimination has been done to him. It was stated that in the case of Society/petitioner in CWP No.4992 of 2010, as many as 15 houses have been released from acquisition. To say that construction was in existence before issuance of notification under Section 4 of the Act, reference was made to the photographs on record (P-2). Perusal thereof indicates that there exist only newly constructed boundary wall and small store type room in the land in dispute. It appears that after issuance of notification under Section 4 of the Act this construction was raised. Our view is fortified when we look at the report of the Land Acquisition Collector who had shown the area as vacant.
In Civil Writ Petition No.5352 of 2010, similar contention has been raised by counsel for the petitioner.
We have seen the photographs. Construction is new one. Even in the report made by the Land Acquisition Collector, it is mentioned that a very small construction was in existence when notification was issued under Section 4 of the Act. The construction now shown is incomplete and admittedly it was raised without getting any permission from the competent authority. In both these cases, no objection was filed under Section 5-A of the Act. If that is so, as per the ratio of the case in AIR 1999 SC 3822 Delhi Admn.vs.Gurdip Singh Uban, these writ Civil Writ Petition No.4992 of 2010 11 petitions are not maintainable.
To claim relief, Mr.Kanwaljeet Singh, Senior Advocate has argued that a vast track of land has been released in favour of DLF and other developers. However, at the time of arguments, he has failed to show that the land was released contrary to the rules. It was brought to our notice that land was released to develop a Group Housing Colony as per the policy of the State Government in terms of the provisions of the 1975 Act. Nothing has been shown to the contrary.
No case is made out for interference.
Dismissed.
(JASBIR SINGH) JUDGE (RAKESH KUMAR GARG) JUDGE 03.02.2011 neenu