Punjab-Haryana High Court
Rajat Kuchhal & Others vs State Of Haryana & Others on 23 August, 2012
Author: Hemant Gupta
Bench: Hemant Gupta, Rajiv Narain Raina
1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Date of Decision : 23.08.2012
C.W.P.No.17048 of 2007
Rajat Kuchhal & others ...Petitioners
Vs.
State of Haryana & others ...Respondents
C.W.P.No.9534 of 2001
H.D.Ansani & others ...Petitioners
Vs.
State of Haryana & others ...Respondents
Present: Mr. Arun Palli, Senior Advocate, with
M/s Munish Behl & Tushar Sharma, Advocates,
for the petitioners.
Mr. H.S.Hooda, Advocate General, Haryana with
Ms. Palika Monga, DAG, Haryana,
for respondent Nos.1 to 5.
Mr. Akshay Bhan, Advocate, &
Mr. Rajiv Anand, Advocate, for respondent No.6.
C.W.P.No.4209 of 2002
Anita Mehta & others ...Petitioners
Vs.
State of Haryana & others ...Respondents
Present: None for the petitioners.
Mr. H.S.Hooda, Advocate General, Haryana with
Ms. Palika Monga, DAG, Haryana for respondent Nos.1 to 4.
Mr. B.R.Gupta, Advocate, for respondent No.5.
CWP No.17048 of 2007 2
and other connected cases
C.W.P.No.6005 of 2002
Mrs. Renu Bagrodia & others ...Petitioners
Vs.
State of Haryana & others ...Respondents
C.W.P.No.158 of 2011
Suresh Kumar & another ...Petitioners
Vs.
State of Haryana & others ...Respondents
Present: None for the petitioners.
Mr. H.S.Hooda, Advocate General, Haryana with
Ms. Palika Monga, DAG, Haryana for the respondents.
CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA
HON'BLE MR. JUSTICE RAJIV NARAIN RAINA
HEMANT GUPTA, J.
This order shall dispose of above mentioned writ petitions, wherein the construction raised by the petitioners is now situated within the municipal limits of Municipal Corporation, Gurgaon, except CWP No.158 of 2011, wherein house of the petitioners is situated within the municipal limits of Municipal Council, Sonepat. The issues raised in all these petitions are common; therefore, all the writ petitions are being disposed of together. However, for facility of reference, the facts are taken from CWP No.17048 of 2007.
The petitioners are purchasers of a residential plot bearing No.4302 situated in DLF Qutab Enclave, Phase-IV, Gurgaon set up by the DLF Universal Limited after obtaining the licence under the provisions of the Haryana Development and Regulation of Urban Areas Act, 1975 (for CWP No.17048 of 2007 3 and other connected cases short 'the 1975 Act') and also after obtaining permission of change of land use under the provisions of the Punjab Scheduled Roads and Controlled Areas Restriction of Unregulated Development Act, 1963 (for short 'the 1963 Act') being situated within controlled area declared under the said Act. The individual building plans in the licensed colony are required to be approved by the Director, Town & Country Planning, Haryana under the provisions of the 1963 Act. The petitioners assert that they have raised construction in pursuance of the approval of the building plans by a Committee constituted in terms of Section 19(2) of the 1963 Act. The petitioners have been granted occupation certificate as well. It is pointed out that the ground floor of the said building is being used for residential and commercial purposes, whereas the basement is being used by the petitioners only for storage purposes. The petitioners were served with a notice dated 22.07.2003 (Annexure P-8) under the provisions of Section 12 (2) of the 1963 Act for alleged change of user of the basement and ground floor from residential purposes to commercial purposes using the building as show- room and godown and that the petitioners have violated the conditions imposed under Section 8(2) of the 1963 Act. The petitioners submitted reply to the said show cause notice, but the District Town Planner (Enforcement), Gurgaon exercising the powers of the Director, Town & Country Planning, Haryana under Sections 9 and 12 of the 1963 Act ordered that the petitioners shall restore the land and building to its approved state in conformity to the orders issued under Section 8(2) of the 1963 Act. The petitioners have also made reference to the meeting held on 13.02.2001 and also a newspaper report dated 10.01.2002 permitting commercial use of the residential properties in the colonizers' area. But it is alleged that the petitioners have been picked up at the instance of a colonizer. It is also pleaded that the entire area covered under DLF Qutab Enclave was intended to be included CWP No.17048 of 2007 4 and other connected cases within the Municipal Council, Gurgaon, when a draft notification to this effect was published. The respondents will cease to have jurisdiction and authority if the area is included within the municipal limits. It is pointed out that no decision has been taken to extend the municipal limits after publication of the draft notification. It is also pointed out that the petitioners have filed an appeal before the Tribunal constituted under the 1963 Act, but the same was dismissed on 05.10.2007. The challenge in the writ petition is to the said order as well, inter alia, that the order passed by the District Town Planner in exercise of the powers conferred under 1963 Act on the ground that the provisions of the 1963 Act do not apply to misuse of the property, as the plot in question is situated in licensed colony and has ceased to be a controlled area.
After filing of the writ petition, admittedly, a notification has been issued on 02.06.2008 constituting Municipal Corporation, Gurgaon, which includes an area of the licensed colony as well.
Before this Court, keeping in view the subsequent development of Constitution of Municipal Corporation, learned counsel for the petitioners have raised an argument that in terms of Chapter XX of the Haryana Municipal Corporation Act, 1994 (for short 'the 1994 Act'), the authorities under the 1963 Act particularly the Director, Town & Country Planning or any of the delegate of the Director is not competent to initiate any proceedings against the petitioners for violation of the conditions of licence. The action in respect of any violation of controlled area or the plan sanctioned in terms of 1963 Act can be in initiated only by the Commissioner under the 1994 Act. It is also argued that the judgment in Smt. Poonam Vs. the District Town Planner, Karnal 2011 (2) PLR 305 of the learned Single Bench of one of us (Hemant Gupta, J.) is not correct CWP No.17048 of 2007 5 and other connected cases enunciation of law, when it is held that the Director, Town & Country Planning under the 1963 Act is competent to issue notice for demolition of a building situated within the municipal limits. The reliance is also placed upon a Division Bench judgment of this Court reported as Premier Spinning Mills Pvt. Ltd. & another Vs. State of Haryana & others 2005 (3) RCR (Civil) 298.
It is also argued that after the erstwhile controlled area comes within the municipal limits, no action can be taken against the petitioners for the alleged violations of the controlled area restrictions. Learned counsel for the petitioners have relied upon a Full Bench of this Court in CWP No.8011 of 1999 titled 'M/s Shiva Ice Factory Vs. State of Haryana & others' decided on 12.12.2007 and another Division Bench judgment in Satpal & others Vs. State of Haryana & others 2010 (4) RCR (Civil) 331.
On the other hand, Mr. Hooda, Learned Advocate General, Haryana has vehemently argued that 1963 Act was enacted to prevent haphazard and sub-standard development along scheduled roads and in the controlled area. Since the Act was enacted to regulate the unrestricted and haphazard growth, the Director, Town & Country Planning under the aforesaid Act has been entrusted with the duties to regulate constructions along scheduled roads and in the controlled area. Therefore, such specific object of unplanned haphazard growth can be better controlled by the Director, Town & Country Planning, as an expert in town development. It is contended that controlled area under the 1963 Act continues to be controlled area even of the erstwhile controlled area falls within municipal limits governed by either the 1973 Act or 1994 Act. Therefore, the Director, Town & Country Planning or the authorities under the aforesaid Act are fully CWP No.17048 of 2007 6 and other connected cases competent to initiate proceedings to bring the buildings in conformity with the building plans sanctioned under the 1963 Act.
The three statutes i.e the Punjab Scheduled Roads and Controlled Areas Restriction of Unregulated Development Act, 1963; the Haryana Municipal Act, 1973; and the Haryana Municipal Corporation Act, 1994 have under gone many changes in the recent past. The relevant provisions from the three statutes are extracted below in juxtaposition:
Punjab Scheduled Roads and Haryana Municipal Act, 1973 Haryana Municipal Controlled Areas Restriction of Corporation Act, 1994 Unregulated Development Act, 1963
2. Definitions - In this Act, 2. Definitions - In this Act, unless 2. Definitions - In this Act, unless the context otherwise there is anything repugnant in the unless the context otherwise requires - subject or context - requires -
xx xx xx xx xx xx xx xx xx (6) "Director" means the 2 (9) "Director" means the (4) "Commissioner" means Director of Town and Country Director Urban Development the Commissioner of the Planning, Haryana, and Department, Haryana; Corporation, appointed by the includes any person for the time State Government; 2 being appointed by the Substituted by Haryana Act No 5 of 2002. Government by notification to The earlier provision reads as xx xx xx exercise and perform all or any (9) "Director" means the Director of Local
of the powers and functions of Bodies appointed by the State Government;} the Director under this Act and the rules made thereunder in xx xx xx respect of any scheduled road or controlled area;
xx xx xx (12) "erect or re-erect any (10) "erect or re-erect any building" includes - building" includes -
(a) any material alternation (a) any material alteration or or enlargement of any building; enlargement of any building;
(b) the conversion by (b) the conversion by structural structural alteration into a place alteration into a place for human for human habitation of any habitation of any building not building not originally originally constructed for human constructed for human habitation;
habitation;
xxx xxx 1
4. Declaration of controlled 3(7-A) "controlled area" means an 5
346. Declaration of area - (1) The government area declared under section 203 C controlled area - (1) may, by notification in the of this Act to be a controlled areas; Notwithstanding any law for Official Gazette, declare any the time being in force, the area outside the limits of Commissioner may, with the xx xx xx previous approval of the municipal town or any other area, which in its opinion has Government, by notification, CWP No.17048 of 2007 7 and other connected cases the potential for building declare the whole or any part activities, industrial, 3 203C. Declaration of controlled of the area within the commercial, institutional or area - (1) Notwithstanding Corporation to be a controlled recreational estate/ activities anything to the contrary contained area provided that the same and uses sub-servient to the in the Punjab Scheduled Roads and has not been declared as above, to be a controlled area Controlled Areas Restriction of controlled area under the for the purposes of this Act. Unregulated Development Act, Punjab Scheduled Roads and 1963 (Act 41 of 1963), the Director Controlled Areas Restriction 1 Substituted by Haryana Act No 6 of may, with prior approval of the of Unregulated Development 2007. The earlier provision reads as State Government, by notification Act, 1963
4. Declaration of controlled area - (1) in the Official Gazette, declare any 5 The government may, by notification area within the limits of a Substituted by Haryana Act No 20 of 2004. The earlier provision reads as declare the whole or any part of any area municipality to be controlled area. adjacent to and within a distance of - (a) eight kilo-meters on the outer side of the In case any area has already been 346. Declaration of controlled area - boundary of any town; or declared as controlled area by the (1) Notwithstanding any law for the time Director, Town and Country being in force, the Commissioner may, with the previous approval of the
(b) two kilo-meters on the outer side of Planning, then the same shall be Government, by notification, declare the the boundary of any industrial or housing estate, public institution or an ancient and deemed to be the controlled area whole or any part of the area within the Corporation including an area within a historical monument, specified in such for the purpose of this Act. distance of 8 kilometres on the outer sides notification to be controlled area for the of the boundaries of the Corporation as a purposes of this Act) controlled area.
(2) The Director shall not later than six months from the date of (2) The Commissioner (2) The Government shall also shall not later than six months declaration under sub-section (1), cause the contents of the from the date of declaration or within such further period as the declaration made under sub- under sub-section (1), or State Government may allow, section (1) to the published in at within such further period as prepare plans showing the least two newspapers printed in the Government may allow, controlled area and signifying a language other than English. prepare plans showing the therein the nature of restrictions and conditions proposed to be controlled area and signifying made applicable to the controlled therein the nature of area and submit the plans to the restrictions and conditions State Government; proposed to be made applicable to the controlled area and submit the plans to xx xx xx the Government.
4
203D. Prohibition on use of the xx xx xx land and building in controlled area :- (1) No land and building within the controlled area shall, except with the permission of the 347. Erection or re-erection
5. Publication of plans etc. in Director and on payment of such of building etc. in controlled controlled area - (1) The conversion charges, scrutiny fee area - Except as provided Director shall, not later than and development charges as may hereinafter, no person shall three months from the be prescribed from time to time, be erect or re-erect any building declaration under sub-section used for purposes, other than those or make or extend any (1) of Section 4 or within such for which it was used on the date of excavation or lay out any further period as the publication of the notification means of access to a road in a Government may allow, prepare under sub-section (1) of section controlled area save in plans in the prescribed manner 203C and no land within such accordance with the plans and showing the controlled area and controlled area shall be used for the the restrictions and conditions signifying therein the nature of purposed of a charcoal-kiln, referred to in section 346 and restrictions and conditions pottery-kiln, lime-kiln, brick-kiln with the previous permission proposed to be made applicable or brick field, or for quarrying of the Commissioner. to the controlled area and stone, bajri, surkhi, kankar or for submit the plans to the other similar extractive or ancillary Government. operation except under and in 348. Prohibition on use of accordance with the conditions of a land in controlled area - (1) licence as may be prescribed. No land within the controlled (2) Without prejudice to the generality of the powers area shall, except with the specified in subsection (1), the permission of the plans may provide for any one Commissioner be used for or more of the following 4203G. Powers and functions of purposes, other than those for matters, namely:- Director - All powers and which it was used on the date functions of the Director, Town of publication of the notification under sub-section
(a) the division of any site and Country Planning, Haryana (1) of section 346 and no land into plots for the erection or re- being performed under the Punjab within such controlled area erection of any building and the Scheduled Roads and Controlled shall be used for the purposes manner in which such plots Areas Restriction of Unregulated of a charcoal-kiln, pottery-
may be transferred to intending Development Act, 1963 (Act 41 of CWP No.17048 of 2007 8 and other connected cases purchasers or lessees; 1963), and the rules made kiln, lime-kiln, brick-kiln or thereunder as applicable to the brick-filled or for quarrying xx xx xx areas within municipal limits, shall stone, bajri, kanker or be exercised and performed by the manufacturing of surkhi or for (3) The Government may Director and the acts already done crushing stone or for other either approve the plans without under the provisions of the said Act similar extraction or ancillary modifications with such and the rules made thereunder, operations except under and in modifications as it may shall be construed to be acts done accordance with the consider necessary or reject the by the Director under this Act. The conditions of a licence to be plans with directions to the powers of the Commissioner and obtained from the Director to prepare fresh plans Secretary to Government, Haryana, Commissioner on payment of according to such directions. Town and Country Planning such fees and under such Department under the above Act, conditions as may be shall be exercised by the prescribed.
6. Erection or re-erection of Commissioner and Secretary to (2) The licence so granted buildings etc. in controlled Government, Haryana, Urban shall be valid for one year may areas - Except as provided hereinafter, no person shall Development Department, under be renewed annually on this Act, within the municipal payment of such fees as may erect or re-erect any building or make or extend any excavation limits. be prescribed. or lay out any means or access (3Inserted vide Haryana Act No 1 of 2001) 349. Application of to a road in a controlled area save in accordance with the permission or licence and 4 Earlier inserted vide Haryana Act No 1 of the grant or refusal thereof -
plans and the restrictions and 2001 but later substituted by Haryana Act No 5
of 2002) (1) Every person desiring to
conditions referred to in Section
5 and with the previous obtain the permission or
licence referred to in sections
permission of the Director;
347 and 348 shall make an
application in writing to the
7. Prohibition on use of land Commissioner in such form
in controlled areas - (1) No and containing such
land within the controlled area information in respect of the
shall, except with the land, building, excavation or
permission of the Director, and means of access to a road to
on payment of such conversion which the application relates
charges as may be prescribed as may be prescribed.
by the Government from time
to time be used for purposes 6
351. Commissioner to carry out
other than those for which it functions of the Director - All powers
and functions of the Director, Town and
was used on the date of Country Planning, shall be exercised and
publication of the notification performed by the Commissioner in
under sub-section (1) of Section respect of the Corporation and acts
already done under the provisions of the
4, and no land within such Punjab Scheduled Roads and Controlled
controlled area shall be used for Areas Restrictions of Unregulated
the purposes of a charcoal-kiln, Development Act, 11963 (Act 41 of 1963)
shall be construed to be acts done by the
pottery kiln, lime-kiln, brick- Commissioner under this Act. The
kiln or bricks field or for powers of the Commissioner of the
Division under the aforesaid Act shall be
quarrying stone, bajri, surkhi, exercised by the Government for the
kankar or for other similar purposes of this Act.
extractive or ancillary operation
except under and in accordance 6
(Omitted by Haryana Act No 20 of
with the conditions of a licence 2004)
from the Director on payment
of such fees and under such
conditions as may be
prescribed;
8. Application for permission
etc. and the grant or refusal
thereof - (1) Every person
desiring to obtain the
permission referred to in
Section 3 or Section 6 or
Section 7 or licence under
Section 7 shall make an
application in writing to the
Director in such form and
containing such information in
respect of the land, building,
excavation or means of access
to a road to which the
CWP No.17048 of 2007 9
and other connected cases
application relates as may be
prescribed.
(2) On receipt of such
application the Director, after
making such enquiry as he
considers necessary, shall by
order in writing either:-
(a) grant the permission or
licence subject to such
conditions if any, as may be
specified in the order, or
(b) refuse to grant such
permission or license,
32. Delegation - (1) The State
Government may, by notification, 401. Delegation - (1) The
19. Delegation - The Government, may by Government may by delegate all or any of its powers under this Act except the power to notification, delegate all or notification direct that any any of its powers under this power exercisable by it under frame forms or make rules under section 257 to any person. Act, except the power to make this Act, except the power rules, to any officer not below specified in sub-section (1) of the rank of an Extra-Assistant Section 4, sub-sections (3) and (2) The State Government may by notification delegate to any officer Commissioner subject to such (7) of Section 5, section 18 and restrictions and conditions as section 25, shall, in relation to not below the rank of an Extra Assistant Commissioner all or any may be specified in the such matters and subject to such notification.
conditions, if any, as may be of the powers conferred under this specified in the notification, be Act on the Deputy Commissioner. exercisable also by such officer (2) The Commissioner may, or authority subordinate to the (3) Every delegation of power by order direct that any power Government as may be under sub-section (1) or sub- conferred, or any duty specified in the notification. section (2) may be subject to such imposed on him by or under restrictions and conditions as may this Act, shall, in such be specified in the notification. circumstances and under such (2) The Director may, with the conditions, if any, as may be approval of the Government, by specified in the order, be an order in writing delegate any exercised and performed by a of his powers and functions Corporation officer or other under this Act or the rules made Corporation employee. thereunder to such other officer subordinate to him as may be specified in such order.
In terms of Section 25 of the 1963 Act, the State Government has framed the Punjab Scheduled Roads and Controlled Areas Restriction of Unregulated Development Rules, 1965. Part VII of such Rules regulated the construction of the buildings in the controlled area. The colonizers are required to prepare plans for residential, commercial and other purposes as per the conditions of development of colonies in a controlled area. Rule 19 prescribed conditions required to be fulfilled by a colonizer including an undertaking permitting the Director or any other officer authorized by him to inspect the execution of the layout and the development works in the colony and to carry out all directions issued by CWP No.17048 of 2007 10 and other connected cases him for ensuring due compliance of the execution of the layout and development works in accordance with the permission granted. Rule 24 empowers the Director to call upon the colonizer to remove the violations in execution of the layout plans or the construction work. An application is required to be made by any person to the Director intending to erect or re- erect any building in the controlled area as per Part VII of the rules. The entire procedure and the conditions for raising of construction of the buildings are prescribed in Part VII of the Rules.
It may be noticed that in terms of Section 5 of the 1963 Act, the Director, Town and Country Planning; Under Section 203C (2) of the 1973 Act, the Director, Urban Development Department and the Commissioner under Section 346(3) of the 1994 Act have to satisfy the similar tests while preparing the plans within the scope of their respective jurisdiction.
We have heard learned counsel for the parties. We find that different authorities have been empowered to act within their jurisdiction such as the Director, Urban Development Department within the municipal limits; the Commissioner with the limits of Municipal Corporation and the Director, Town & Country Planning in respect of the controlled area and the scheduled road outside the municipal limits. Such powers have been conferred to avoid overlapping of jurisdiction with the authorities and for focused implementation of the development plans and the Building Rules within their respective jurisdiction. We do not find any merit in the argument that the controlled area declared under 1963 Act cannot continue either under 1973 or 1994 Acts. Section 4 of the 1963 Act empowers the State Government to declare any area outside the limits of municipal town or any other area to be a controlled area. Therefore, the provisions of 1963 Act are applicable in respect of scheduled roads and the controlled area beyond CWP No.17048 of 2007 11 and other connected cases the municipal limits or the local authority. In respect of such controlled area, 1963 Act empowers the Director, Town & Country Planning or such other person appointed by the Government by notification to exercise or perform all other powers of the Director under the aforesaid Act. Once the Municipal Council is constituted or the limits of a local authority are extended, the 1973 Act becomes applicable in respect of a controlled area declared under 1963 Act in terms of Section 203C of the 1973 Act. But the power to implement the provisions of the Act lies with the Director, Urban Development Department, as defined in Section 2 (9) of the Act as amended vide Act No.5 of 2002 or on a delegate of the State Government in terms of Section 32 of the 1973 Act. We find that the legislation has used the expression "Director, Town & Country planning" and the "Director" in the 1973 Act for two different purposes. The expression "Director, Town & Country planning" has been used in respect of the Controlled area declared under the 1963 Act but where the expression used is only 'Director', it signifies that the jurisdiction within municipal limits is with the Director Urban Development Department. This is evident from reading of Sections 203C, 203D and 203G of the 1973 Act. It is further pointed out that the powers of Director can be delegated to any other person by the State Government in respect of an area governed by 1973 Act.
Similarly, under Section 346 of the 1994 Act, it is the Commissioner, who is competent to ensure compliance of the development plans in respect of controlled area declared under 1963 Act. This is so evident from the reading of Sections 346, 347, 348 & 349 as also when Section 351, which stands omitted by Act No.20 of 2004. The Director, Town & Country Planning has no role in respect of an area falling within the limits of a Municipal Corporation. Therefore, keeping in view the rule of CWP No.17048 of 2007 12 and other connected cases harmonious construction and to ensure proper working of all the statutes, it transpires that:
(i) The Director, Town & Country Planning or any officer so appointed by the State Government is to ensure the compliance of the development plans and the provisions of 1963 Act in respect of controlled area and on the scheduled roads, outside the municipal limits;
(ii) The Director, Urban Development Department is competent to seek compliance of the development plans published under Sections 4 & 5 of the 1963 Act in terms of Section 203C of the Act unless such plans are modified in accordance with the procedure prescribed therein; and also by a delegate notified by the State Government in terms of Section 32 of the 1973 Act.
(iii) The Commissioner, Municipal Corporation is competent to seek compliance of the development plans published under Sections 4 & 5 of the 1963 Act in terms of Section 346 of the 1994 Act unless such plans are modified in accordance with the procedure prescribed; and also by a delegate notified by the State Government in terms of Section 401 of the 1994 Act.
We may now discuss the judgments referred to by learned Counsel for the parties. Section 203C of the 1973 Act was not brought to the notice either before the Full Bench and to the Division Bench in M/s Shiva Ice Factory and in Satpal's cases (supra) respectively. Such fact has been noticed by one of us (Hemant Gupta J) sitting singly in Smt. Poonam's case (supra). The said judgment has been quoted with approval by another Division Bench in CWP No.18 of 2004 titled 'Women Education Trust & another Vs. State of Haryana & another' decided on 28.01.2011, wherein it has been held to the following effect:
CWP No.17048 of 2007 13
and other connected cases "It may also be relevant to point out at this stage that though learned counsel for the petitioners raised an argument that the land in question falls within the limits of Municipal Council, Kaithal and therefore, the provisions of the Punjab Scheduled Roads and Controlled Areas Act were not applicable in view of the judgments of this Court in Kartar Singh's case, Pritam Singh's case, Satpal's case and M/s Shiva Ice Factory's case (supra) but could not substantiate the said argument in the face of the judgment of this Court passed in CR No.8353 of 2010 (Smt. Poonam v. The District Town Planner, Karnal) decided on 24.12.2010 wherein this Court after considering the aforesaid judgments has clearly laid down that the Hon'ble Full Bench and the Division Benches in the aforesaid cases were not apprised of the amendments in the Statute carried out by the Haryana Act No.1 of 2002, whereby Section 203 C of the Haryana Municipal Act, 1973 was inserted and in view of the aforesaid statutory provisions incorporated in the Haryana Municipal Act, the judgments relied upon by the petitioners were inapplicable."
Therefore, the judgments relied upon by the learned counsel for the petitioners are not helpful to the arguments raised.
However, in Premier Spinning Mills Pvt. Ltd. case (supra), the order passed by the Assistant Town Planner in respect of an area falling within the municipal limits was set aside. In the said case, the reliance was placed upon notifications dated 21.02.1978 and 21.05.2002 issued by the Director under the 1963 Act delegating powers under Sections 9, 12 & 16 to the District Town Planner. The Court held to the following effect:
"20. The notification, Annexure R-10, has its genesis in the various amendments, carried out in the Haryana Municipal Act. With the passage of time, controlled areas, declared under the Scheduled Roads Act, began to be included within the municipal limits. The State, conscious of the fact that such controlled area as would be included within municipal limits, would be subject to the over-lapping jurisdiction of the Municipal Committees and the authorities under the Scheduled Roads Act, enacted the Haryana Municipal (Amendment) Act, 2001 (hereinafter referred to as "the Amending Act"). The Amending Act inserted Section 203-C and 203-G in the Municipal Act. Section 203-C declares that an area already declared as a controlled area, by the Director, Town & Country Planning, shall be deemed to be a controlled area for the purposes of the Haryana Municipal Act. The Amending Act also inserted Section 203-G in the Haryana Municipal Act, pursuant whereto, all powers and functions of the CWP No.17048 of 2007 14 and other connected cases Director Town and Country Planning, being performed under the Scheduled Roads Act, were henceforth to be performed by the Director, as defined under the Haryana Municipal Act. Section 203-G further declares that acts already done under the provisions of the Scheduled Roads Act and the rules made thereunder shall be construed to be acts done by the Director under the Haryana Municipal Act. It further states that the Director, Town & Country Planning and the Commissioner of the Division shall have no jurisdiction under the Scheduled Roads Act and the rules made thereunder, with respect to the controlled area falling within Municipal limits. The 'Director' under the Haryana Municipal Act is defined in Section 2 (9) as the Director Urban Development Department, Haryana.
21. In view of the above amendments, powers of the Director Town and Country Planning and the other officers under the Scheduled Roads Act stood conferred upon the authorities under the Haryana Municipal Act, qua controlled area, which fell within municipal limits.
22. Faced with the aforementioned situation, the State of Haryana, in its wisdom, vide notification dated 21.05.2002 (Annexure R-10), granted approval to the Director, Urban Development Department, Haryana, Chandigarh to delegate powers, vested in him, under Sections 9 and 12 of the Scheduled Roads Act with respect to controlled areas which had fallen within municipal limits, to all District Town Planners of the Department of Town and Country Planning. The respondents, as noticed earlier, have relied upon the notification (Annexure R-10) to contend that even after the amendment of the Haryana Municipal Act, the District Town Planner continues to exercise jurisdiction, under Section 12 of the Scheduled Roads Act and in his absence, these powers would be exercised by the Assistant Town Planner.
23. We have perused the notifications, Annexures R-9 and R-10 carefully. Though the notifications, prior to and subsequent to the amendment of the Haryana Municipal Act, delegate the powers of the Director Town and Country Planning, in the terms mentioned therein, these notifications are singularly silent about the delegation of any powers, whether of the Director, Town and Country Planning or the Director, Urban Development Department, upon Assistant Town Planners. The notifications do not support the averments in the written statement or the arguments canvassed by counsel for the respondents that in the absence of the District Town Planner Planning, the Assistant Town Planner, Karnal was delegated with powers to pass the impugned order. The respondents have failed to bring to our notice or place on record any other notification in support of their contentions that in the absence of the District Town Planner, the Assistant Town Planner was delegated powers. In this view of the matter, the impugned order, Annexure P-14, which was passed by the Assistant Town CWP No.17048 of 2007 15 and other connected cases Planner, Karnal, an authority not conferred with any jurisdiction to exercise the powers of the Director, Town and Country Planning, under Section 12 of the Scheduled Roads Act, is null and void." The ratio of the said judgment, in fact, supports the findings recorded herein that in terms of Section 203C of the 1973 Act, the controlled area declared under 1963 Acct continues to be controlled area under 1973 Act.
Though in Smt. Poonam's case (supra), it was held that since the controlled area has been declared under 1963 Act, therefore, the Director, Town & Country Planning under the said Act is competent to issue notice in the petition for demolition, but we find that such observation is not warranted in terms of the provisions of the 1994 Act, as it is only the Commissioner or its delegate under Section 401, who can exercise jurisdiction under 1994 Act. In terms of 1973 Act, the jurisdiction under the said Act can be exercised only by Director Urban Development Department or any other delegate notified by the State Government in terms of Section 32 of the 1973 Act.
Though the provisions of 1973 Act are clear and categorical that the Director, Town & Country Planning shall have no jurisdiction to initiate proceedings in the erstwhile controlled area now forming part of municipal area, but the provisions of 1994 Act are somewhat ambiguous. The Municipal Corporation is generally upgraded to that status from an existing Municipal Council. The interpretation suggested by Mr. Hooda cannot be accepted, as the action within the area of Municipal Council can be initiated only by the Director, Urban Development Department in view of the express provisions of the said Act but in case the argument of Sh. Hooda is accepted then the effect would be that within the limits of the Municipal Corporation, it would be the Director, Town & Country Planning to initiate action for violation of controlled area. Such interpretation would do CWP No.17048 of 2007 16 and other connected cases violence to the statutory provisions and will defeat the harmonious and purposive construction. A Municipal Corporation, after its upgrading from Municipal Council cannot be reverted to a status as that existed even prior to the Constitution of the Municipal Council.
Though the notices, subject matter of challenge in the present case, were issued prior to amendment in the 1963 Act; 1973 Act & 1994 Act, but the fact remains that after passing of the impugned orders, there are material changes have taken place in the statutory provisions.
Therefore, while quashing the orders passed under the 1963 Act, we give liberty to the petitioners to conform to the building regulations as per the building plans sanctioned within a period of three months. If the petitioners fail to do so, the authorities as discussed above, shall be at liberty to initiate proceedings against the petitioners so as to seek compliance of the statutory provisions.
With the said observations, all the writ petitions stand disposed of.
(HEMANT GUPTA)
JUDGE
23.08.2012 (RAJIV NARAIN RAINA)
Vimal JUDGE