Punjab-Haryana High Court
Welfare Society (Regd.) ... vs Punjab State And Another on 21 November, 2011
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.
CWP No. 4397 of 2010 (O&M)
Date of Decision: November 21, 2011
Welfare Society (Regd.) Shaheed-A-Azam Bhagat Singh Nagar,
Roopnagar
...Petitioner
Versus
Punjab State and another
...Respondents
CORAM: HON'BLE MR. JUSTICE M.M. KUMAR
HON'BLE MR. JUSTICE RAJIV NARAIN RAINA
Present: Mr. S.S. Rangi, Advocate,
for the petitioner.
Mr. Suvir Sehgal, Addl. AG, Punjab,
for respondent No. 1.
None for respondent No. 2.
Mr. Manpreet Singh Longia, Advocate,
for respondent Nos. 3 to 8.
1. To be referred to the Reporters or not?
2. Whether the judgment should be YES
reported in the Digest?
M.M. KUMAR, J.
1. Challenge in this petition filed under Article 226 of the Constitution is to the notification dated 22.3.2006 (P-3) issued by the respondent State of Punjab under Section 43 of the Punjab Town Improvement Act, 1922 (for brevity, 'the Act'), sanctioning alteration/change in the layout plan in Drawing No. DTP/2281, dated 19.12.1990 of Shaheed-A-Azam Bhagat Singh Nagar, backside Deputy Commissioner residence. The revised Layout Plan bearing Drawing No. RIT/4/2005, dated 29.9.2005 was sent for sanction of the Improvement Trust, Ropar by passing Resolution No. 60, dated 28.10.2005. The petitioner has also challenged order CWP No. 4397 of 2010 (O&M) 2 dated 30.9.2009 (P-9) whereby the appeal filed by it against the notification dated 22.3.2006, has been dismissed. Further prayer has been made directing respondent No. 2-Ropar Improvement Trust, Ropar to set up a Janj Ghar in the area of Shaheed-A-Azam Bhagat Singh Nagar, Ropar, as per the original layout plan (P-1).
2. Facts of the case may first be noticed. Petitioner is a registered Welfare Society of Shaheed-A-Azam Bhagat Singh Nagar, Ropar. In the year 1991, a scheme, namely, 'Shaheed-A-Azam Bhagat Singh Nagar at Ropar' (for brevity, 'the Scheme') was formulated and sanction of the State Government was also given under Section 41 of the Act and the land stood acquired. According to the petitioner, when the Scheme was framed certain land was reserved for open space, parks and public purposes etc. in the layout plan (P-1). Neither any building could be constructed over reserved area nor it could be used for any other purpose. The Scheme became operational and as per the approved layout plan (P-1) residential plots were carved out, which were duly developed and allotted from time to time. With the passage of time, people also raised construction of their houses. The dispute in the present petition is with regard to the area shown in Green colour in the layout plan (P-1). According to the petitioner the same was earmarked to be used to set up a Janj Ghar (Community Centre).
3. On 18.6.2004, the respondent Improvement Trust passed a resolution for change of use of the area reserved for Special Purpose/Janj Ghar into area for constructing residential plots. On 25.1.2005, the appropriate Government granted approval under Section 43 of the Act for change of land use. Thereafter, a revised layout plan bearing Drawing No. R.T.I. 2/2005 was prepared CWP No. 4397 of 2010 (O&M) 3 by the Improvement Trust in which proposal for carving out 400 square meter residential plot was made. The said layout plan was sent for technical approval to the Chief Town Planner, which was granted on 9.9.2005. However, a rider was imposed that the area of the plot in the proposed layout plan should be of the size of 10 meters x 15.5 meters. Accordingly, the Improvement Trust again revised the layout plan vide drawing No. R.T.I. 4/2005, dated 29.9.2005, in which 6 plot of the size 155 sq. meters and 4 plots of the size 170 sq. meters were proposed to be carved out. The said layout plan was sent to the Chief Town Planner for approval. Eventually, on 22.3.2006 (P-3), the respondent State of Punjab issued the impugned notification under Section 43 of the Act according final sanction to alteration/change in the original layout plan of Shaheed-A-Azam Bhagat Singh Nagar, Backside Deputy Commissioner residence of Improvement Trust, Ropar, bearing Drawing No. DTP/2281, dated 19.12.1990, to the extent as shown in the revised layout plan bearing Drawing No. RIT/4/2005, dated 29.9.2005.
4. The grievance of the petitioner is that before deciding to change the layout plan, no objections were invited from the residents of the area. Secondly, the area which was specifically reserved for setting up of a Janj Ghar in the original layout plan, could not be utilised for any other purpose. On 7.10.2008, the petitioner filed an appeal challenging notification dated 22.3.2006. On 20.11.2009 (P-9), the Principal Secretary to Government Punjab, Department of Local Government, dismissed the appeal. The relevant extract of the order dated 20.11.2009 reads as under:
" The Development Scheme for the area was CWP No. 4397 of 2010 (O&M) 4 sanctioned on 29.08.1991. As per the Scheme layout, a piece of land opposite to the block of residential houses was reserved for "Special purpose (Public Buildings)". During the long period of more than 14 years in between the 29.08.1991 to 28.10.2005, no resident of Colony has ever submitted any request to the Improvement Trust that Janj Ghar/Community Centre may be constructed over this land. Perhaps such demand was not lodged as two Community Centres already existed in this small town of Ropar and there was no need of any more Janj Ghar. The Scheme area is situated in a corner of the Town and the land in question was situated on the boundary of the Scheme area. Accordingly, considering the location of the land in question, the Trust deemed it appropriate to change the land use of this piece of land from Public Buildings to Residential Houses and a resolution No. 60 dated 29.10.2005 was passed in this regard. Thereafter, the proposal was technically examined by the Chief Town Planner, Local Government Department and it was recommended that in all 10 plots of small size of 155 Sq. Meters and 170 Sq. Meters each may be carved out instead of proposed bigger area plots. The Govt. accorded its approval to the proposed change of land use by issuing a Notification dated 22.03.2006 u/s 43 of the PTI Act, 1922. The Improvement Trust then proceeded to allot the newly carved out residential plots in due course. The process of allotment has already been completed but only the possession of the plot/land CWP No. 4397 of 2010 (O&M) 5 is to be delivered by the Trust......... In the instant case the unexplainable delay has been caused in objecting to the change of land use. Otherwise also, the decision dated 29.10.2005 by the Trust has been taken after examining and considering the ground situation and as such the decision is reasoned and tenable. The contention of appellant Society that except the land in question there is no other common place in the Scheme area, therefore, residents shall suffer, is contrary to the ground situated (situation?) because there already exist two parks as per the Scheme layout. On construction of Janj Ghar in such like small colony having odd 90 houses, the residents shall face traffic, sanitation and pollution related enormous difficulties whereas the addition of 10 small residential houses in the colony would make no difference."
5. The petitioner had earlier approached this Court by filing CWP No. 2543 of 2010. A Division Bench of this High Court dismissed the said petition as withdrawn with liberty to file a fresh petition. However, the Division Bench also specifically observed that if a fresh petition is filed, the petitioner was required to explain the delay in approaching the authorities as the allotment of the plots was made in 2005 (P-10). Order dated 15.2.2010, passed in CWP No. 2543 of 2010 reads as under:-
" After arguing the matter at some length, learned counsel for the petitioner seeks leave to withdraw the writ petition as he wants to adduce some more evidence/documents on record to substantiate the plea CWP No. 4397 of 2010 (O&M) 6 that the plot in question was ear-marked for Community Centre.
Dismissed as withdrawn, with the liberty prayed for. While filing a fresh petition learned counsel for the petitioner shall explain the delay in approaching the authorities as the allotment of the plots was made in 2005."
6. In the preliminary objections raised in the written statement filed by the respondent Improvement Trust, it has been pointed out that the then President of the petitioner Society, namely, Ajit Singh, had earlier filed Civil Suit No. 444, dated 23.12.1999 in the Court of Additional Civil Judge (Senior Division) Roopnagar, seeking permanent injunction restraining the Trust from auctioning the site in question and which is the subject matter of controversy in the instant petition. In fact, the respondent Improvement Trust had issued an advertisement for auctioning the site of the Janj Ghar for the purposes of performing marriages and other social gatherings of the locality. However, the then President of the petitioner Society took the objection in the said suit that it would create nuisance in the area and disturbance to the residents of the locality. The suit was dismissed on 20.12.2001 as the plaintiff was not able to adduce any evidence (R-3/2). Therefore, the petitioner is now estopped from taking a totally contrary stand by glorifying the utility of the Janj Ghar. The factum of filing of the civil suit has not been disclosed in the instant petition. The respondent Improvement Trust has also raised the objection of unexplained delay on the part of the petitioner. In that regard reference has also been made to the order dated 15.2.2010 passed CWP No. 4397 of 2010 (O&M) 7 by the Division Bench in CWP No. 2543 of 2010. It has also been pointed out that the land in question has already been allotted to various persons including respondent Nos. 3 to 8, who have already raised construction. Thus, third party rights have already accrued. On merits it has been asserted that in the city there are other places that are available for community use including marriage places, parks and clubs, which are situated within the vicinity of the petitioner's colony. The impugned notification dated 22.3.2006, has been issued after complying with all the provisions of the Act. It is also submitted that the Scheme has not so far been fully executed, inasmuch as, some built up booths and a school site are still available for auction.
7. A separate reply has also been filed by the added respondent Nos. 3 to 8, wherein they have taken almost similar objections, as has been noticed in the preceding para while considering the written statement filed by the respondent Improvement Trust.
8. On 8.7.2011, this Court opined that the matter may be first examined by the Secretary to Government of Punjab, Local Bodies Department and a report was to be submitted within three months. In compliance with the said order, a report dated 19.11.2011 has been submitted by the Principal Secretary, Local Government, Punjab. Besides noticing the aforementioned factual position, it has been mentioned in the said report that on 16.1.2009, the respondent Improvement Trust invited applications and allotted 9 plots out of 10 by way of draw of allotment. All the 9 allottees have paid the requisite price and 5 of them have already constructed their houses. The last house was constructed in CWP No. 4397 of 2010 (O&M) 8 October 2011. Shri Jawahar Lal, Executive Officer, Improvement Trust, who appeared before the Principal Secretary, also informed that there are two other big schemes in the vicinity of the Shaheed- A-Azam Bhagat Singh Nagar, where there are two community centres, which are open to the members of the public. In the present Scheme there are only 88 houses having the population of about 400-500 people, whereas normally a Janj Ghar is set up to cater to a bigger population of at least 10,000-15,000. In para 4 of the report, the Principal Secretary has noted the contention of Shri Surinder Singh, President of the Society, which is to the effect that by changing the land use to residential plotting, the Trust has reneged on its promise. With regard to filing of the Civil Suit, it has been stated by Shri Surinder Singh that the civil suit was not directed against construction of Janj Ghar by the Improvement Trust but it was directed against auction of the plot to a private party for setting up a marriage palace. In fact, it was incumbent for the Improvement Trust to have constructed the Janj Ghar on its own for the allottees of the Scheme, as has been done by it in the other two schemes. In para 5 of the report, the Principal Secretary has concluded as under:-
5. I have gone through the resolution No. 61 dated 18/6/2004. It was proposed in the meeting of the trust that there were only 80 houses in the scheme and this scheme was located in one corner of the society. There did not appear to be a need for community centre in this scheme. It was therefore proposed that the land use be changed has to residential plotting. The proposal of the trust was accepted in the meeting of the Trust on CWP No. 4397 of 2010 (O&M) 9 18/6/2004. There is some merit in the argument of the society that the trust should not have changed the original purpose of this land. However, as per the resolution of improvement trust, it is quite clear that this scheme was meant for only 80 houses and therefore there was hardly any need for justification for a community hall for the population of 400 or so.
However, even otherwise, it is not possible to put the clock back at this stage. The trust has allotted residential houses on the disputed land to 9 allottees and only one plot remains to be disposed of. Most importantly out of 9 allottees, 5 allottees have already completed the construction of their residential houses. The trust has allotted the houses after due approval from Department of Local Bodies and the allottees have also constructed their houses after getting the building plans approved from the Trust. There is, therefore, no illegality of any kind in either the allotment or the construction of the houses. It is accordingly not possible at this stage to restore the land for the original purpose for construction of Janj Ghar/public building. ..........."
9. Having heard learned counsel for the parties and perusing the paper book with their able assistance, we are of the considered view that the instant petition is devoid of merit and liable to be dismissed on numerous grounds. It has come on record that the proposal for change of land use in respect of the land in question was first of all mooted in the year 2004 when a Resolution No. 61, dated 18.6.2004, was passed by the respondent Trust. CWP No. 4397 of 2010 (O&M) 10 Thereafter, various occasions were available with the petitioner Society to challenge the action of the respondents. But for the reasons best known to it, no proceedings were initiated. Even the Division Bench, vide order dated 15.2.2010, passed in the earlier writ petition No. 2543 of 2010, has specifically directed the counsel for the petitioner to explain the delay in approaching the authorities. However, no reasonable explanation is forthcoming in the instant petition. Therefore, delay would stand in way particularly when third party rights have come into existence. Secondly, there is no whisper in the petition about filing of Civil Suit No. 444 of 23.12.1999 by the then President of the petitioner Society in the Court of Additional Civil Judge (Senior Division), Roopnagar, which amounts to concealment of facts.
10. There is also sufficient material on record which reveals that there is not much necessity of setting up of a Janj Ghar in the locality. From the report of the Principal Secretary it is evident that there are only 88 houses in the Scheme having the population of about 400-500 people. There are already two other community centres in the vicinity of the Scheme which are open to public use. The plots which were carved out after change in the layout plan, have already been allotted and construction has been raised by the allottees and even some of them may have further sold the plots. In this manner, third party rights have accrued. Last but not the least, a bare perusal of Section 43 of the Act shows that it is within the competence of the Trust to make any alteration of scheme after sanction with the prior approval of the State Government. Section 43 of the Act reads as under:
"43. Alteration of Scheme after sanction. - A scheme CWP No. 4397 of 2010 (O&M) 11 under this Act may be altered by the trust at any time, with the prior approval of the State Government, between its sanction by the State Government and its execution."
11. It has been specifically pointed out by the respondent Improvement Trust in its reply that the Scheme is still under execution because some built up booths and a school site are still available for auction. Therefore, the respondents have rightly decided to change the land use by following proper procedure under Section 43 of the Act.
12. As a sequel to the above discussion, no interference of this Court is called for in the matter. The petition does not warrant admission. Accordingly, this petition fails and the same is dismissed.
(M.M. KUMAR) JUDGE (RAJIV NARAIN RAINA) RAINA) November 21, 21, 2011 JUDGE PKapoor