Punjab-Haryana High Court
M/S Palam Vihar Constructions Pvt. Ltd. ... vs State Of Haryana And Others on 21 March, 2013
Author: Amol Rattan Singh
Bench: Satish Kumar Mittal, Amol Rattan Singh
CWP No.11175 of 2012 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CWP No.11175 of 2012
Date of Decision : 21.03.2013
M/s Palam Vihar Constructions Pvt. Ltd. through its Director Anuj Puri s/o
Sh. M.M. Puri, r/o C-96 Vasant Kunj, New Delhi
...... Petitioner
Versus
State of Haryana and others ...... Respondents
****
CORAM : HON'BLE MR. JUSTICE SATISH KUMAR MITTAL
HON'BLE MR. JUSTICE AMOL RATTAN SINGH
Present : Mr. Avinash Mittal, Advocate
for the petitioner.
Mr. Paramjit Batta, Addl. Advocate General, Haryana for respondents No.1 to 5.
Mr. Chetan Mittal, Sr. Advocate with Mr. Harsh Bangar, Advocate for respondent No.6
1. To be referred to the Reporters or not?
2. Whether the judgment should be reported in the Digest?
**** AMOL RATTAN SINGH, J
1. This petition has been filed by the petitioner-company seeking right of easement of way to his property, which he alleges has been time and again blocked by respondent No.6, which is a company that has developed a colony known as DLF Phase II, Guragaon. It is to and from one of the Chander Vikas 2013.08.12 17:08 I attest to the accuracy and integrity of this document Chandigarh CWP No.11175 of 2012 2 12 meter wide surface road in the said colony, that the petitioner is seeking rights of ingress and egress.
2. As per the case set up by the petitioner, it was having agricultural land in Gurgaon, measuring 163.5 square meters, for which it sought change of land user from the respondents-authorities, for setting up of a bakery unit.
3. The Change of Land Use (herinafter called as CLU) was granted by the respondent-authorities vide order dated 11.02.2010 (Annexure P-4). While submitting the proforma (annexed as Annexure P-
3), the report by the District Town Planner stated that the site is approachable from the 12 meter wide road of DLF Phase- II.
The building plan was also approved vide communication dated 12.07.2010, a copy of which has also been annexed with the petition as Annexure P-5. The architectural plan/building plan shows the entry of the building from the said 12 meter wide road, of the DLF colony.
It is further pleaded in the petition, that all relevant fees etc. and other formalities qua the statutory requirements of the official respondents, have also been fulfilled by the petitioner-company.
4. Despite the above, the averment in the petition is that whenever the petitioner company made a door for ingress/egress to its duly sanctioned building, some musclemen of respondent No.6 demolished the same and blocked the passage, by constructing a wall against it, on the public way and thus, infringed on the right of easement of the petitioner, of ingress/egress to its building. Allegations of threats by the said musclemen, have also been made in the petition.
Chander Vikas 2013.08.12 17:08 I attest to the accuracy and integrity of this document Chandigarh CWP No.11175 of 2012 3
To substantiate its contention with regard to stoppage of passage, photographs (Annexure P-6) have been annexed with the petition, showing the gate blocked by a thick stone wall, with workmen undertaking the construction work thereof and a large number of people gathered on the spot.
5. In the reply filed by the official respondents, the factum of grant of CLU and sanction of building plan, with ingress and egress to the 12 meter wide road, is admitted. It has further been averred, that since the land of the petitioner falls in the area surrounded by the licenced area of M/s DLF Universal Ltd. (respondent No.6) and its associate companies, who are responsible for internal development of the colony, it was thought appropriate to recover the cost of the proportionate internal development works from the petitioner and to deposit the same with the colonizers, with the direction to provide services to the petitioner.
Accordingly, a sum of Rs.4,20,650/- was worked out by the department, which was recovered from the petitioner-company and the same was paid to respondent No.6, on account of the cost of internal services to be provided to the petitioner-company.
6. The reply of respondents No.2 to 4 further states that the said amount was returned by respondent No.6, to the Director Town and Country Planning Haryana (respondent No.3), on the plea that the DLF City Residents Welfare Association had filed a civil suit in which interim orders have been passed, directing parties to maintain status quo regarding services of DLF City, such as water, roads, sewers etc., till the final disposal of the suit. Hence, respondent No.6 took the plea that in view of the interim Chander Vikas 2013.08.12 17:08 I attest to the accuracy and integrity of this document Chandigarh CWP No.11175 of 2012 4 orders, they were not able to provide any services with regard to internal development works to the petitioner.
The said civil suit was decided by the Civil Judge (Junior Division), Gurgaon, on 27.01.2011 with a direction to respondent No.6 herein, restraining it from providing such facilities as are being enjoyed by plaintiffs and the Residents Welfare Association, to any individuals of small pockets, who are not paying for the same. Subsequently, in a writ petition bearing CWP No.20041 of 2010, titled as Mahender and others Vs. State of Haryana and others, this Court allowed the petitioners therein, the use of facilities of roads etc., provided by the licenced colony, on payment of due charges. That writ petition was disposed of on 20.11.2012, by a Division Bench.
7. The reply of the official respondents further states, that vide Haryana Act No.4 of 2012 (notified on 03.04.2012), Section 23-A was inserted, which provides that the Director, with the approval of the Government, may, from time to time, and/or under the directions of the Government, under Section 9A, shall, issue directions as are necessary or expedient, for carrying out the purposes of the Act.
Sections 23-A and 9A of the said Act are reproduced herein.
"23A. Power to issue directions:- The Director, with the approval of the Government, may, from time to time and/or under the directions issued under Section 9A by the Government, shall, issue directions as are necessary or expedient for carrying out the purposes of this Act."
9A Control by Government-- The Director shall carry out such directions, as may be issued to him, from time to time, by the Government for efficient administration of this Act.
Chander Vikas [inserted by Haryana Act 16 of 2010] 2013.08.12 17:08 I attest to the accuracy and integrity of this document Chandigarh CWP No.11175 of 2012 5
8. Accordingly, the official respondents state, that directions were issued to respondent No.6 to provide internal development services " to the change of land use permission granted area to private respondents after receipt of applicable charges". (The stand taken in the reply is reproduced as it is). A letter addressed to one Sh. Devinder Singh of respondent No.6-company, in respect of release of water and sewerage connection, to the petitioner of CWP No.20041 of 2010, has also been annexed with the reply.
9. In the written statement filed on behalf of respondent No.6, on the maintainability of writ petition it is stated, that the relief sought is of civil nature, and also that the case involves disputed questions of fact. Counter allegations of construction of the wall having actually been made by the petitioner company, have also been made, due to which a complaint is stated to have been made to the concerned police station, on 26.05.2012.
It has further been averred that the CLU granted to the petitioner-company is against norms, as the petitioner-companys' land is only 163 sq. meters, whereas the minimum required for grant of such CLU is 5 acres.
It is further averred that the consent of DLF was never taken, before allowing the petitioner company to approach the 12 meter road in the colony of DLF. It has further been stated that the site falls within the controlled area of Gurgaon and that the 12 meter road is a broad road of respondent No.6 which serves a residential area and, as such, an industrial site allowed to be opened would result in the movement of heavy vehicles, posing a safety hazard for the residents.
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10. We have heard Sh. Avinash Mittal, learned counsel for the petitioner, Sh. Siddharth Batra, learned Additional Advocate General for the official respondents and Sh. Chetan Mittal, learned Senior counsel for respondent No.6.
11. Sh. Chetan Mittal has vehemently argued his pleaded case in the petition. Sh. Siddharth Batra has also reiterated what is contended in the reply of the official respondents, to the effect that the petitioner is entitled to the use of the 12 meter wide road, in terms of the CLU granted, the approved building and the lay out plan, as also in accordance with the provisions of Section 23-A of the Act.
12. We are convinced that this petition deserves to be allowed, in view of the stand taken by the official respondents, to the effect that, as per the terms of the CLU granted to the petitioner, as also the earlier Division Bench judgment of this Court in CWP No.20041 of 2010, the petitioner has a right of easement and use of services of the colony developed by respondent No.6, on payment of internal development charges.
13. Section 23A of the Haryana Urban Development Act, 1975 enables the Director, Town and Country Planning, Haryana, to issue directions as are necessary and expedient for carrying out the purposes of the Act. Accordingly, such directions were issued and a sum of `4,20,650/- was charged from the petitioner and paid to respondent No.6 by the official respondents, which at that point (2010) was returned in view of the interim stay orders in Civil Suit No.308 of 2004, pending at that time in the court of Civil Judge, Junior Division, Gurgaon.
That suit having been decreed in favour of the plaintiff therein as also the Residents Welfare Association, to the extent that without Chander Vikas 2013.08.12 17:08 I attest to the accuracy and integrity of this document Chandigarh CWP No.11175 of 2012 7 payment of charges, individuals of small pockets would not be entitled to avail of the civil facilities being enjoyed by the plaintiff and their associates, the obvious interference is that, on payment of charges, facilities can be used by them.
14. Similar directions have been issued by a Division Bench of this Court in CWP No.20041 of 2010, in favour of the petitioners' therein, as already discussed hereinbefore.
15. We see no reason as to why a person who has been granted permission for change of land use by the competent authority and whose site is surrounded by large colonizers, should be denied the right to use the available road, even if developed by the colonizers, provided there is a payment of charges, as per norms, to such colonizers.
16. Mr. Chetan Mittal, has strenuously argued that the petitioner also has access to another developed road behind the premises and can easily use that. Though this contention may have some merit, however, we still see no reason why a small unit cannot use a road which has otherwise become a public road, even though developed by the colonizers, and is used by the public at large for ingress and egress to the colonies. Further, as regards the contention that it is an industrial site and cannot be permitted access to the roads of a residential colony, a perusal of the site plan shows that the unit of the petitioner is at one end of the residential colony, with an undeveloped piece of land abutting it on one side, after which there is a shopping-cum-commercial complex.
17. As regards the contention that heavy vehicles would be coming and going in a residential area, we do not find much force in the argument, in view of the fact that a small bakery unit, running on a plot of less than Chander Vikas 2013.08.12 17:08 I attest to the accuracy and integrity of this document Chandigarh CWP No.11175 of 2012 8 200 sq. yards, would not be serviced by such large heavy vehicles as is sought to be projected by respondent No.6. And further, light commercial vehicles, as are likely to visit the petitioner companys' unit, would also be coming and going to the shopping complex, for delivery of goods.
18. Of course, in case there is any violation of pollution norms, it would be open to the concerned authorities, i.e. the Pollution Control Board etc. to ensure that the ambient air quality and other norms provided for, in an area such as where the petitioners' bakery unit is situated, are adhered to, failing which, obviously, action in that regard would be taken as per law.
19. As regards the contention that the CLU itself has been wrongly granted in view of the small size of the plot of the petitioner company; firstly, learned counsel for the respondents has specifically stated on instructions, that setting up of a bakery is a permissibly activity in a residential zone, as per zoning regulations, and no area norm stands prescribed for this activity; secondly, in our opinion, Sections 9A and 23A of the Haryana Act No.4 of 2012, have been inserted precisely for the reason, that where necessary directions are called for, the Government and the Director, Town Planning, would exercising their jurisdiction, in public interest. To our mind, keeping in view the size of the petitioner-companys' unit, the Government/Director were well within their jurisdiction to exercise their discretion in allowing the petitioner, right to usage of the public road, on payment of charges to respondent No.6, as was done by this court, in CWP No.20041 of 2010.
Consequently, this petition is allowed, with no order as to costs. The petitioner would be given access to the road in question, allowing him to construct a gate on that side of his property, for the purpose of Chander Vikas 2013.08.12 17:08 I attest to the accuracy and integrity of this document Chandigarh CWP No.11175 of 2012 9 ingress and egress, where exists the public road developed by respondent No.6. Such use of this facility, i.e. the road developed by respondent No.6, would be subject to payment of internal development charges by the petitioner company, to respondent No.6, as per norms laid down by respondents No.3 and 4 in that regard.
( AMOL RATTAN SINGH ) ( SATISH KUMAR MITTAL )
JUDGE JUDGE
21.03.2013
vcgarg
Chander Vikas
2013.08.12 17:08
I attest to the accuracy and
integrity of this document
Chandigarh