CWP No.8456 of 2008 [1].IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No.8456 of 2008 Reserved on:02.04.2014 Date of Decision:06.05.2014 Nirpaljeet Kaur and others ..Petitioners Versus State of Punjab and others ..Respondents CORAM:HON'BLE Mr.JUSTICE SANJAY KISHAN KAUL, CHIEF JUSTICE HON'BLE Mr.JUSTICE ARUN PALLI Present:Mr.Animesh Sharma, Advocate and Mr.J.S.Thind, Advocate, for the petitioneRs.Mr.Harsimran S.
Sethi, Advocate General, Punjab, for respondents No.1 and 2.
Mr.Salil Sagar, Senior Advocate with Mr.Sunil Kumar, Advocate, for respondents No.3 and 4.
Mr.Rajiv Atma Ram, Senior Advocate with Mr.Vikas Kuthiala, Advocate, for respondent No.6.
***** 1.Whether reporters of local papers may be allowed to see the judgment?.
2.To be referred to the reporters or not?.
3.Whether the judgment should be reported in the digest?.
***** ARUN PALLI, J.
The petitioners are resident of Shaheed Sewa Singh Thikriwala Nagar, Patiala and had approached this Court in purported public interest vide this petition.
They had, inter alia, prayed for a writ of mandamus directing the official respondents to stop the commercial activity being carried out at the instance of respondent No.6 in the residential area (Shaheed Sewa Singh Thikriwala Nagar, Patiala) and to remove Rajan Kumar 2014.05.07 12:41 I attest to the accuracy and integrity of this document Chandigarh CWP No.8456 of 2008 [2].illegal encroachments/violations.
A direction was also prayed for against the respondents to stop the functioning of the College i.e.Sr.Guru Harkrishan College of Management and Technology and also a High School, which was being run in the middle of residential colony, over a site which was indeed allotted to set up a Primary School.
Pursuant to the notice issued by this Court, the respondents filed their counter-affidavits/written statements respectively, which, we would refer to and deal with at an appropriate stage in the judgment.
Since the instant writ petition was filed in the year 2008 and was monitored by this Court for almost six yeaRs.in the interregnum, there have been multiple developments pursuant to certain orders/directions issued by this Court from time to time.
However, we need not dilate upon those, in context of the questions which have eventually evolved for determination by this Court.
So we proceed.
On 19.07.2013, the matter was taken up by this Court and on hearing learned counsel for the parties, this Court had passed an order, which reads as thus: “There appears to be an apparent contradiction in the stands being taken by the Improvement Trust, Patiala in different affidavits.
It has been pointed out by the learned counsel for the petitioners that in the affidavit filed on 10.08.2010, the stand Rajan Kumar 2014.05.07 12:41 I attest to the accuracy and integrity of this document Chandigarh CWP No.8456 of 2008 [3].taken was that neither CLU was recommended nor could it be so recommended.
The stand of the Punjab Government was that the Improvement Trust recommended CLU and they accepted the same.
Thereafter, the stand, which is sought to be taken, is that it is a residential colony and CLU was recommended, though it was for the State of Punjab to accept the same or not.
The question is whether did the Improvement Trust recommended CLU or not and if so, could it so recommend.
We, thus, call upon the Chairman of the Improvement Trust, Patiala to remain personally present in the Court on the next date of hearing.
Learned counsel for the petitioners submits that other than the three plots in question, Plot Nos.577, 578 and 593, there is no other plot where commercial activity is being run.
In these three plots, respondent No.6 is running the business of printing press, a television channel and full-fledged hostel.
We are, thus, of the view that the crucial question to be examined is whether there was any irregularity or illegality in the change of the land use of those three plots because if the CLU stands, then respondent No.6 cannot be faulted with.
Another aspect urged by the learned senior counsel for respondent No.6, on Rajan Kumar 2014.05.07 12:41 I attest to the accuracy and integrity of this document Chandigarh CWP No.8456 of 2008 [4].instructions, is that the petitioners are specifically targeting the said respondent as there are other plots where commercial activities are being carried out and that he will file an affidavit stating out where else commercial activity is being carried out with relevant photographs.
The needful be done within two weeks.
He contradicts the stand of the learned counsel for the petitioners by claiming that both commercial and residential activities are permissible in the locality.
List on 21.08.2013.”
.
Pursuant to the afore-reproduced order, the Chairman of the Improvement Trust, Patiala, appeared before this Court and maintained that the Trust never recommended CLU to the State Government.
Not just that, it was pointed out that in fact CLU ought not to be granted for such cases.
Further, since the State Government had accorded CLU, the Improvement Trust was bound to comply with the said decision.
On the contrary, learned State counsel referred to the affidavit of Special Secretary (Shri Vinod Kumar Bhalla).Department of Local Government affirmed on 5/6.03.2012 to contend that in fact it was pursuant to a proposal sent by the Trust for change of land use of plot Nos.577 and 578 from residential to commercial, the State Government, in exercise of Rajan Kumar 2014.05.07 12:41 I attest to the accuracy and integrity of this document Chandigarh CWP No.8456 of 2008 [5].its power under Section 43 of the Punjab Town Improvement Act, 1922 [for short, 'the 1922 Act']., accorded the requisite approval.
It was stated that the said approval was in turn, considered by the Trust in its meeting on 03.09.2008 vide resolution No.70 (Annexure R1/1).Learned counsel for the Trust, however, maintained that the said resolution (Annexure R1/1) was post-decision of the Government and thus, the crucial issue remained as to by which document/resolution, the Trust had requested for change of land use.
Faced with this, learned State counsel prayed for time to look into the matter.
He was called upon to produce the records granting CLU and also the document vide which the Trust had sent a proposal for change of land use.
Special Secretary, Department of Local Government, who had affirmed the affidavit on 5/6.03.2012, was directed to remain present on the next date.
The said order dated 21.08.2013 reads as thus: “Learned counsel for respondents No.3 and 4, states on instructions from Chairman of the Improvement Trust, Patiala, who is present in court, that the Improvement Trust never recommended CLU to the State Government.
Not only that, his submission, on such instructions, is that CLU ought not to be granted for such cases, but once CLU has been granted by the State, the Rajan Kumar 2014.05.07 12:41 I attest to the accuracy and integrity of this document Chandigarh CWP No.8456 of 2008 [6].Improvement Trust is bound to comply with the decision.
Learned counsel for respondents No.1 and 2 has invited our attention to the affidavit of Shri Vinod Kumar Bhalla, Special Secretary, Department of Local Government affirmed on 5/6.3.2012 at page 422.
It is the say of the said respondents that according to Section 43 of the Punjab Town Improvement Act, 1922, a Scheme may be altered by the Trust at any time with prior approval of the State Government between its sanction by the Government and its execution.
A proposal is stated to have been received from the Trust for change of land use of Plots No.577 and 578 from residential to commercial and it is while exercising the powers under Section 43 of the said Act that the same was approved by the State Government.
This approval was in turn, considered by the Improvement Trust in its meeting on 3.9.2008 vide Resolution No.77 dated 3.9.2008 (Annexure R1/1).Learned counsel for Improvement Trust states that the aforesaid Resolution- Annexure R1/1 is post the decision of the Government and thus, moot point is as to by which document/Resolution, the Trust has requested for such change of land use.
Learned Additional Advocate General, Punjab, appearing for respondents No.1 and 2 states that he will have to look Rajan Kumar 2014.05.07 12:41 I attest to the accuracy and integrity of this document Chandigarh CWP No.8456 of 2008 [7].into the matter.
We call upon him to produce the relevant records of the State Government granting such CLUs duly flagged which resulted in the decision dated 20.12.2005 (Annexure R3/7).specifically the document by which the Improvement Trust is stated to have proposed/requested for change of land use.
Mr.Vinod Kumar Bhalla, Special Secretary, Department of Local Government, who affirmed the affidavit, should also remain personally present in court.
List on 23.09.2013.”
.
On the next date i.e.23.09.2013, an additional affidavit dated 23.09.2013 was filed by Special Secretary, Department of Local Government, which was taken on record along with the documents appended thereto.
A reading thereof, apparently, suggests that the stand, which has been set out on behalf of the State Government in an earlier affidavit dated 5/6.03.2012, was sought to be resiled from.
It would be apposite to refer to the said order, dated 23.09.2013, and the same reads as thus: “Learned Addl.
Advocate General, Punjab for respondents No.1 and 2 seeks to file an additional affidavit of Special Secretary, Department of Local Government, Punjab in Court which is taken on record.
A reading of the affidavit seeks to suggest that what was stated earlier in Rajan Kumar 2014.05.07 12:41 I attest to the accuracy and integrity of this document Chandigarh CWP No.8456 of 2008 [8].affidavits filed on behalf of the State did not reflect the correct position i.e.it is not a case where any proposal is emanating from the Improvement Trust for CLU on the application filed by respondent No.6, but on the other hand the Improvement Trust is taking a stand to the contrary that infact it had been directed by respondents No.1 and 2 to take a decision in a particular manner.
It is thus obvious that the stand, which has been put-forth by the Improvement Trust that it is only implementing the decision of the Government, is correct.
Learned counsel for respondent No.6 seeks some time to examine the affidavit as well as annexures enclosed therewith.
Mr.Vinod Kumar Bhalla, Special Secretary, Department of Local Government, Punjab shall also remain present in Court personally on the next date of hearing.
List again on 12.11.2013.”
.
On 12.11.2013, Special Secretary, Department of Local Government, who was directed to remain present in the Court, appeared and stated that in fact there was an incorrect factual position set out by him, which was the reason for which his personal presence in the Court was directed.
Accordingly, he was asked to file an affidavit and remain present in the Court even on the next date.
The said order reads as thus: Rajan Kumar 2014.05.07 12:41 I attest to the accuracy and integrity of this document Chandigarh CWP No.8456 of 2008 [9].“An adjournment slip has been circulated by learned counsel for respondent No.6 with no objection of learned counsel for the petitioneRs.Mr.Vinod Kumar Bhalla, Special Secretary, Department of Local Government, Punjab, who is present in Court, now seeks to state that there was in fact an incorrect factual position set out by him which was the reason for directing his personal presence as recorded in the last order.
Mr.Vinod Kumar Bhalla to file an affidavit and personally remain present in Court on the next date.
The respondents may also take note of the additional facts brought on record by the petitioner today.
List on 18.12.2013.”
.
In compliance to the order, dated 12.11.2013, Mr.Vinod Kumar Bhalla filed another affidavit dated 05.12.2013 seeking to explain his position and also tendered an unconditional apology, which was accepted by this Court and he was cautioned to remain careful in future.
On 18.12.2013, the matter was heard at length and this Court made an order, which reads as thus: Rajan Kumar 2014.05.07 12:41 I attest to the accuracy and integrity of this document Chandigarh CWP No.8456 of 2008 [10].“Mr.Vinod Kumar Bhalla, Special Secretary, Department of Local Government, Punjab has filed an affidavit of unconditional apology.
We accept the same cautioning him to be careful in future.
In so far as the allegations made in the petition qua compoundable and non- compoundable violations are concerned, learned senior counsel appearing for respondent No.6 has drawn our attention to the order passed on 22.10.2009 where the concession is recorded that the violations will be charged for whatever is compoundable and remove whatever is non- compoundable failing which the Improvement Trust will be at liberty to remove the same.
He, thus, submits that as per his instructions charges already stand paid for whatever is compoundable and there is no compoundable violation and if something still remains the Improvement Trust may inform in writing and respondent No.6 will do the needful failing which the Improvement Trust can take action at his costs.
We, thus, direct the Improvement Trust/respondent No.3 to communicate to respondent No.6 within 15 days from today whether there are any compoundable or non- compoundable violations still left to be addressed and in case of compoundable violations the charges for the same.
Rajan Kumar 2014.05.07 12:41 I attest to the accuracy and integrity of this document Chandigarh CWP No.8456 of 2008 [11].Respondent No.6 will deposit the charges for compoundable violations within 15 days thereafter and so far as non-compoundable violations are concerned will either remove them within the same period of time or respond to the same.
We make it clear that respondent No.3 is, thus, free to proceed against non-compoundable violations violations after the aforesaid period and in our opinion no further directions in this behalf are henceforth required.
This takes care of nine plots of respondent No.6 or his family membeRs.Now turning to the three plots where the CLU occurred, in our view, the following question really would arise for consideration:- Whether in the absence of any proposal from the Improvement Trust is there any authority vested with the State Government to instruct the Improvement Trust to change the land use or issue the CLU itself?.
Learned counsel for the petitioners submits that there is an incidental issue which will also arise in case the aforesaid issue is answered in favour of respondent No.6 i.e.whether by grant of this CLU there is change in the nature and character of the colony and, thus, it would be impermissible to issue the same.
Learned senior counsel for Rajan Kumar 2014.05.07 12:41 I attest to the accuracy and integrity of this document Chandigarh CWP No.8456 of 2008 [12].respondent No.6 further submits that the petition filed is not bonafide.
Learned counsels for the parties seek some time to examine the aforesaid issue and make submissions in this respect.
List on 05.02.2014.”
.
Ex facie, in so far as the compoundable and non- compoundable building violations/deviations, the matter was closed as no further directions were required.
Thus, the only question we are left with to determine is as to whether there indeed was any proposal ever made by the Improvement Trust as conceived and contemplated by Section 43 of the 1922 Act and, if no, then whether in the absence of any proposal from the Improvement Trust was there any authority vested with the State Government to either instruct the Trust to accord change of land use or issue CLU itself?.
We have heard learned counsel for the parties and perused the records and also examined the synopsis submitted by learned counsel for the parties.
Learned counsel for the petitioner submits that the Government had no power to grant CLUs, especially when the Improvement Trust had refused change of land use and never sent any proposal.
He referred to the provisions of Section 43 of the 1922 Act, and contends that the provisions clearly postulate that the scheme framed by the Trust can be altered only by the Trust, though, with the prior approval of the Rajan Kumar 2014.05.07 12:41 I attest to the accuracy and integrity of this document Chandigarh CWP No.8456 of 2008 [13].Government.
He asserts that the process, thus, has to be initiated by the Trust and not by the Government.
He further contends, even the Trust can alter the scheme only between its sanction and execution.
Whereas, the scheme stood executed years prior to the decision dated 20.12.2005.
The other issue, that is being raised by the learned counsel, is that the industrial-commercial activities are being carried out over the plots in question in the middle of a residential colony.
He contends, even if it is assumed that the Government had the power to grant CLU, still the question would be, could it at all be accorded to carry out an industrial-commercial activity in the residential area.
Despite a decisive change in the stand set out in subsequent affidavits filed by Special Secretary, Department of Local Government, Mr.Sethi, learned State counsel, submits that it was pursuant to a proposal from the Trust, the State Government, in exercise of its power under Section 43 of the 1922 Act read with Clause XXI of the notification dated 30.12.1976, accorded approval for change of land use (from residential to commercial).It is urged that at no point of time, the State Government instructed the Improvement Trust to accord any such permission.
Instead, it only acted on the decision taken by the Trust and he drew our attention to Annexure R1/2, at page 577.
Thus, it is contended that once the Trust asked the State Government to take a decision at its Rajan Kumar 2014.05.07 12:41 I attest to the accuracy and integrity of this document Chandigarh CWP No.8456 of 2008 [14].own level, the order dated 20.12.2005 (Annexure R1/9).was passed by the Government.
And the said decision, already stands approved by the Improvement Trust by passing a resolution.
Learned senior counsel, appearing for the Trust (respondent No.3).referred to the stand set out in the written statement filed on behalf of the Trust and also the extensive correspondence that was exchanged between the Trust and the State.
It was submitted that once the Government had accorded prior approval for change of land use, the Trust accepted the said decision followed by a necessary resolution.
Since we notice a complete dichotomy in what was urged before us on behalf of the State and the case sought to be built on behalf of respondent No.6, who is the beneficiary of the decision of the State Government, we deem it appropriate to deal with the contentions that have been raised on behalf of respondent No.6, separately.
Thus, the crucial issue that comes to fore for consideration, is, whether there was ever indeed any proposal made by the Trust as contemplated under Section 43 of the 1922 Act.
Therefore, to unravel the verity, we deem it expedient and necessary to refer to the extensive correspondence that was exchanged between the State and the Trust: a) It indeed, started with a letter dated Rajan Kumar 2014.05.07 12:41 I attest to the accuracy and integrity of this document Chandigarh CWP No.8456 of 2008 [15].11.02.2002, when the State Government asked the Trust to send its comments forthwith, since it had received a request from respondent No.6, seeking change of land use.
b) Vide letter No.528 dated 28.02.2003, the Trust in response, informed the State Government that there were no rules and bye- laws containing any provision for change of land use vis-a-vis the plots, which were already sold.
c) Vide endorsement dated 29.11.2003 (Annexure R1/1).the Executive Officer of the Trust was again asked to send his comments along with the records to the Government within two days, positively.
The said letter reads as thus: “Endst.
No.3/15/03-2LG2/17641 dt.
29.11.03 A copy of the above forwarded to Executive Officer, Town Improvement Trust Patiala with the request that in this regard your comment along with record be sent to the Government within 2 days positively.”
.
In response, the Trust vide letter dated 11.12.2003 (Annexure R1/2).conveyed as under: “In this regard to the letter under reference it is submitted that the applicant has demanded to change the land use of Plot No.593, 578 and 577 which are residential plots for the use as commercial.
It shall be pertinent to Rajan Kumar 2014.05.07 12:41 I attest to the accuracy and integrity of this document Chandigarh CWP No.8456 of 2008 [16].mention here that as per Government letter No.7/61/96-2LG-II/14776 dated 23.10.03, Plot No.593 being discretionary quota has already been cancelled.
As per rules of Trust in case any change of land use is to be made by the Improvement Trust prior to sell the properties then under Section 43 of Punjab Town Improvement Act 1922 approval from the Government is to be obtained.
But regarding the properties which are already sold, there is no provision in the Act to change of land use.
Therefore, it is humbly submitted that it shall be proper to take the decision at Government level regarding the change of use of these plots.”
.
d) Again, the Government wrote another letter dated 28.01.2004 (Annexure R1/3) to the Trust: “In reference to your letter No.3072, dated 11.12.2003 on the above cited subject.
2.
After re-considering this case as per rules/instructions, the proposal be sent to the Government.”
.
e) Vide yet another letter dated 25.02.2004 (Annexure R1/4) written by the State, the Trust was asked to send clear proposal immediately for consideration of the Government: “In reference to Government Memo No.3/15/2003-2LG2/1232 dated 28.01.2004 on the above cited subject.
2.
The Government had written that after re- Rajan Kumar 2014.05.07 12:41 I attest to the accuracy and integrity of this document Chandigarh CWP No.8456 of 2008 [17].considering this case as per rules/instructions, proposal be sent to the Government, but till date necessary information has not been received.
In this regard, another representation No.1282, dated 12.2.2004 from Sh.
Jagjit Singh Dardi has been received, copy of the same is attached herewith and it is requested that in this case keeping in view the rules/instructions, self clear proposal be sent immediately for the consideration of the Government.”
.
In response, the Trust vide its letter dated 10.03.2004 (Annexure R1/5) reiterated its stand: “In regard to the letter of the government under the above reference, it is submitted as under:- 2.
Allotment of plot No.593 situated at SSST Nagar Patiala has been cancelled in view of decision dated 25.7.2003 of Hon'ble Punjab & Haryana High Court in CWP No.7401 of 1996, therefore no consideration can be made in respect of change of land use of it.
So far as the other two plots are concerned, there is no provision in the rules or byelaws for change of land use of plots already sold.
Trusts can only compound the case of change of land use in accordance with applicable building byelaws after charging the fee fixed.
In para XXI of the Schedule of clauses of the Scheme and in rule 14 of the Allotment of plots and Utilization of Land Rules, 1983, Government has the authority to relax the rules.
So the Trust is unable to take decision regarding change of land use in this case at its level.
Therefore this case can be looked into by Punjab Government under the above said provisions.
It is made clear here that when some land is allotted by the Trust for institutional purpose, its cost Rajan Kumar 2014.05.07 12:41 I attest to the accuracy and integrity of this document Chandigarh CWP No.8456 of 2008 [18].can be taken 15% less than the reserve price.
But at the time of fixing reserve price of commercial sites, generally double the rate of residential property is taken and then auction is made at this rate.
So far as the question of fixing of composition fee of institutional building is concerned, there is no separate composition fee for change of land use fee in the concerned byelaws of the Trust, whereas there is provision of charging of Rs.2000 per square yards as composition fee from residential to commercial.
Therefore, whatever decision can be taken on the subject, that can be taken by the Government at its level.”
.
f) The Government vide letter dated 27.07.2004 (Annexure R1/6) again asked the Trust to consider the matter and send the proposal as per instructions dated 19.07.2004: “In reference to your letter No.668, dated 10.03.2004 on the above cited subject.
2.
You had sent case vide letter reference above regarding consideration on the basis of Govt.
instruction dated 10/11/98 & 17.11.1998 Govt.
has revised the instruction vide letter No.5/103/2004-4LG2/13438-39 dated 19.7.2004.
Now this proposal be sent as per instruction dated 19.7.2004 (copy enclosed).”
.
g) The said letter was replied by the Trust vide its letter dated 01.02.2005 (Annexure R1/8).“Ref: In regard to Government Memo No.3/15/2003/2LG2/13882 dated 27.7.04.
Rajan Kumar 2014.05.07 12:41 I attest to the accuracy and integrity of this document Chandigarh CWP No.8456 of 2008 [19].On the basis of above letter you are informed that as per new Govt.
instruction change of land use cannot be complied.
It is for your information.”
.
h) It was, at this point in time, the Government, vide its letter dated 20.12.2005 (Annexure R1/9).conveyed to the Trust that the Government after consideration of the matter was pleased to accord prior approval of change of land use from residential to commercial of plot Nos.577 and 578, S.S.S.T.Nagar, Patiala.
The said letter reads as thus: “In reference to your office letter No.668, dated 10.3.2004 and Memo No.3/15/03-2 LG2/17624, dated 17.11.2005 of the Government on the above cited subject.
2.
After considering this matter at Government level, the prior approval of change of land use of the residential to commercial of Plot No.577 and 578 S.S.S.T.Nagar, Patiala is accorded on the condition that the allottee will deposit entire amount in Trust Fund at the rate of Rs.2000/- per square yard.
This case may not be treated as precedent.”
.
i) Eventually, vide letter dated 16.03.2006 (Annexure R1/15).the Government accorded the change of land use from residential to commercial even vis-a-vis the third plot i.e.No.593 and the Trust was informed accordingly.
Rajan Kumar 2014.05.07 12:41 I attest to the accuracy and integrity of this document Chandigarh CWP No.8456 of 2008 [20].At this moment in time, we find it expedient to refer to the provision of Section 43 of the 1922 Act, and the same reads as thus: “43.
Alteration of scheme after sanction – A scheme under this Act may be altered by the trust at any time with the prior approval of the government between its sanction by State Government and its execution.”
.
An analysis of the records and the letteRs.which have been reproduced above, irresistibly show that no proposal indeed emanated from the Trust for change of land use.
The Trust never initiated any such process ever as contemplated under Section 43 of the 1922 Act.
There exists nothing on record to substantiate to the contrary.
It is axiomatic, so to say, the letteRs.which are being referred to by the State to justify its decision, cannot even, by distorting the contents thereof, be construed as proposal contemplated under Section 43.
Since the proposal, which was being repeatedly solicited by the State Government, never came through, it appeaRs.the Government lost its patience and accorded unsolicited prior approval to a self-perceived proposal, which never saw the light of the day.
Apposite it would be to re-notice, the Chairman of the Trust appeared before this Court and made a statement in no uncertain terms that the Trust never made any recommendation qua CLU to the State Government.
In fact, Rajan Kumar 2014.05.07 12:41 I attest to the accuracy and integrity of this document Chandigarh CWP No.8456 of 2008 [21].he asserted that CLU in the present case ought not to have been granted.
It was, however, clarified that the resolution (Annexure R1/1) passed by the Trust was post-decision of the State Government on 20.12.2005 and once CLU had been granted by the State Government, the Trust had no option but to comply with the decision.
It goes even further, in the subsequent affidavits filed by the Special Secretary, Local Government Punjab, it is virtually conceded that there was no proposal sent by the Trust under Section 43 of the 1922 Act.
It's obvious that the Government in pursuit to defend its decision looked for a legislative foothold and in this endeavour the provisions of Section 43 seemed feasible to defend and justify its action.
That is how, the letters exchanged between the State Government and the Trust are being construed and read as proposal.
It appeaRs.according prior approval seemed unprecedented even to the State Government that is how it lost no time to recite that it would not be treated as a precedent.
Provision of Section 43 postulates a collaborative process and complete synergy between the State and the Trust.
Rare and exceptional though, records reveal serious dichotomy in their respective stands.
Having said that, it would be expedient to point out further that in given facts, no such proposal could at all be Rajan Kumar 2014.05.07 12:41 I attest to the accuracy and integrity of this document Chandigarh CWP No.8456 of 2008 [22].made by the Trust under Section 43 of the 1922 Act.
Correspondingly, there could not be any occasion for the State Government to accord approval.
The language of the afore-reproduced provision of Section 43 is clear, concise and incapable of any misconstruction.
Option to have the scheme amended or altered can be exercised by the Trust between its sanction and execution.
It is not abstruse that the provision comes in operation for a limited period or in a specified situation.
Once, post-sanction, the scheme is executed, the provisions of Section 43 would cease to operate.
We may point at this stage, the scheme in question was sanctioned by the State Government on 30.12.1976 and was executed years prior to the order passed by the Government on 20.12.2005.
We may now advert to the other significant question i.e.whether in the absence of any proposal from the Trust was there any authority vested with the State Government to instruct the Trust to accord the change of land use or issue the same itself.
The stand of the State Government before us is, that at no point in time, the Government instructed the Trust to accord change of land use.
Its not their case either that the State Government has the right, power and authority under any provision of law to issue such instructions/order to the Trust.
This is also not claimed before us that the Government Rajan Kumar 2014.05.07 12:41 I attest to the accuracy and integrity of this document Chandigarh CWP No.8456 of 2008 [23].itself can accord any such approval even suo moto.
We may also refer to Clause XXI of the Notification, with the aid of which, the State Government is stated to have exercised its power to accord sanction.
The contents of the said clause read as thus: “XXI.
Relaxation: - The Trust with the prior approval of Government may at any time relax any of the provisions of this scheme in respect of change in use of plots for particular purposes and elimination of any proposed street if the need for such a street becomes redundant by change of use.”
.
A bare reading of the aforesaid clause leads us to an irresistible conclusion that it is the Trust, which has to initiate a proposal for approval of the Government.
Needless to assert, the Trust never made any such proposal.
Never sought any relaxation of any of the provisions of the scheme.
Nothing is placed on record to show that there actually existed any such situation or circumstances which required the Trust to seek such a relaxation vis-a-vis the scheme.
That being the case, the reference to said clause is totally misplaced.
We have reached the stage to deal with the case of respondent No.6.
Learned senior counsel for the said respondent maintains that in fact the decision dated 20.12.2005 was taken by the State Government itself, at its Rajan Kumar 2014.05.07 12:41 I attest to the accuracy and integrity of this document Chandigarh CWP No.8456 of 2008 [24].own level.
And the Government was fully competent to accord permission for change of land use under the provisions of Punjab Regional and Town Planing and Development Act, 1995 [for short, the 1995 Act'].It is urged that the competence of the State to grant CLU was not challenged or pleaded by the petitioners and this question was raised by this Court for the fiRs.time in its order dated 18.12.2013.
Reliance was placed upon a decision of Hon'ble the Supreme Court in R and M Trust v.
Koramangala Residents Vigilance Group and otheRs.2005 AIR (SC) 894, to contend that the present petition in public interest filed after three years of the order dated 20.12.2005 suffered from delay and latches.
In our considered view, the submission being advanced by the learned senior counsel cannot be countenanced for multiple reasons, as is being demonstrated hereafter.
Respondent No.6, is indisputably the beneficiary of the decision of the State Government dated 20.12.2005.
The stand set out by the State before us is that it was pursuant to the proposal made by the Trust, the Government had accorded the prior approval under Section 43 of the 1922 Act.
The State has not chosen to place reliance upon any of the provisions of the 1995 Act to justify its decision.
There exists nothing on record to show that the order dated 20.12.2005, according approval for change of land use, was passed in a purported Rajan Kumar 2014.05.07 12:41 I attest to the accuracy and integrity of this document Chandigarh CWP No.8456 of 2008 [25].exercise of power under the 1995 Act.
Not just that, we have examined the provisions of the 1995 Act, its import, intent and applicability.
In fact, the said Act was promulgated for a different purpose and objective to achieve.
It postulates provision for better planning and regulating the development and use of land in planning areas delineated for that purpose for preparation of regional plans and master plans and implementation thereof.
And, for undertaking urban development and housing programmes and schemes for establishing new towns.
It would be apposite to point out here that the scheme in question i.e.Improvement Scheme was framed under Section 35 of the 1922 Act by the Trust.
The sanction was accorded thereto by the Government under the provisions of the said Act and the same stood executed.
So, there could not be any occasion for the Government to accord approval for CLU under the 1995 Act.
The grievance of respondent No.6, that the competence of the State of Punjab to grant CLU was never challenged by the petitioner.
Further, question with regard to the competence of the State Government to grant CLU was raised, for the fiRs.time, by this Court in its order dated 18.12.2003.
No doubt, the decision of the State Government dated 20.12.2005 was not formally assailed in this petition.
But, we must clarify, at this stage again, that this petition was filed Rajan Kumar 2014.05.07 12:41 I attest to the accuracy and integrity of this document Chandigarh CWP No.8456 of 2008 [26].and entertained by this Court in public interest and has been monitored for almost six yeaRs.In the interregnum, there have been multiple developments, pursuant to the directions/orders passed by this Court or otherwise.
The parties to the lis were always and fully alive and conscious to the issues, that have evolved over a period of time, for our consideration.
Fact, which is evident from the orders passed by this Court from time to time.
And that is how we were assisted by the learned counsel for the parties vis-a-vis the said issues.
We may also refer to an order passed by this Court as back as on 17.11.2011 in this context, which reads as thus: “The government of Punjab, Local Government Department passed an order dated 20.12.2005 (R-3/17, at page 389 of the paper book) stating that the matter has been considered at the Government level for prior approval for changing of land use of plot Nos.577 and 578 from residential to commercial and permission is given on the condition that the allottee will deposit `2000/- per sq.
yard into Trust Fund for the change and the aforementioned decision was not to be treated as precedent.
We have asked Mr.Suvir Sehgal, learned Addl.
A.G., Punjab the provision under which the aforesaid order has been passed.
Mr.Sehgal, has stated that there is nothing in the short reply filed by respondent Nos.1 and 2 and has requested for some time Rajan Kumar 2014.05.07 12:41 I attest to the accuracy and integrity of this document Chandigarh CWP No.8456 of 2008 [27].to file additional affidavit stating the provision under which the aforesaid order could have been passed.
Let the detailed affidavit/parawise reply be filed by the respondent-State within two weeks with a copy in advance to the learned counsel for the petitioner as well as respondent No.6.
If any, counter is to be filed, the same shall be filed within a week thereafter.
File containing the various Misc.
Applications shall also be page marked along with affidavit.
List again on 20.12.2011.”
.
Reliance upon the decision of Hon'ble the Supreme Court in R and M Trust's case (supra) also would have no bearing on the matter in hand as in the said case, Association Koramangala Residents Vigilance Group filed a public interest petition challenging the building licence issued for construction of multi-storeyed/multi-apartments on site Nos.403 and 443 in 2nd and 3rd Cross in III Block, Koramangala Layout, Bangalore.
They had prayed for quashing of the licence and a direction to demolish the building already constructed on the site.
The observation of the Hon'ble Court that delay is a very important factor while exercising extraordinary jurisdiction under Article 226 of the Constitution, were made, inter alia, in context of the third Rajan Kumar 2014.05.07 12:41 I attest to the accuracy and integrity of this document Chandigarh CWP No.8456 of 2008 [28].party interest having come into being in the interregnum.
In fact, one of the appeals before the Hon'ble Court was at the instance of the bona fide purchasers of flats in the building, who were living therein.
Such is the not the position in the present case.
In conspectus of the conclusions we have reached in the matter, we hold: i) No proposal as envisaged by the provisions of Section 43 of the 1922 Act, ever came into being.
Accordingly, nothing could be sent by the Trust to the State Government for its approval; ii) In the given facts, there indeed could not be any such proposal under Section 43 and correspondingly any approval thereof, as post-sanction of the scheme in question, the same stood executed years before the decision of the State Government; iii) This was not the case of the State Government before us that it could either instruct the Trust to accord CLU or could grant the same itself suo moto, under any provision of the Act; iv) What surprises us the most is that vide order dated 20.12.2005, the State Government only accorded a prior approval for change of land use.
This order could not be construed as a decision by the State granting change of land use.
Indeed, there was no such decision but just a prior Rajan Kumar 2014.05.07 12:41 I attest to the accuracy and integrity of this document Chandigarh CWP No.8456 of 2008 [29].approval to a perceived/anticipated proposal by the Trust.
The said proposal never came into being.
In the absence of any decision by the State Government and the proposal made by the Trust, the prior approval accorded by the State remained dormant and, thus, could not be the basis of any consequent decision/resolution.
Thus, the orders dated 20.12.2005 and 16.03.2006 passed by the State Government, vide which a prior approval for change of land use was accorded, were completely devoid of any right, power or authority and the same could not have been passed in purported exercise of power under Section 43 of the 1922 Act.
Thus, we are constrained to set aside the same along with all consequent orders/resolutions passed by the Trust.
A collateral issue i.e.even if it is assumed that the State Government had the power to grant permission for change of land use, could it indeed be granted for carrying out an industrial-commercial activity in the middle of residential area.
Learned counsel for the petitioner submitted that respondent No.6 was running a printing press, a television channel, an institute of film, acting and mass media over the site in question.
It is urged that publishing, printing and reproduction of recorded media were in fact industrial activities.
Thus, all this caused serious problems to the residents of the colony.
Rajan Kumar 2014.05.07 12:41 I attest to the accuracy and integrity of this document Chandigarh CWP No.8456 of 2008 [30].For the present, we do not deem it necessary and appropriate to delve into this aspect of the matter.
We have already set aside the orders passed by the State Government, according prior approval qua the change of land use from residential to commercial, being devoid of any authority in law.
Thus, in the wake of the position sketched out above, we deem it expedient and appropriate to direct the Improvement Trust, Patiala to examine the matter in its entirety, in accordance with law, by following a due process on merits without being prejudiced by our order in any manner.
Needless to assert, the feasibility of according permission/ approval for change of land use i.e.from residential to commercial, in the residential area, would also be considered by the authorities.
A reasoned decision in this regard be taken within a period of one month from today.
And in case, the Trust arrives at a conclusion that a recommendation/proposal, seeking any relaxation/amendment in the scheme, is required to be made to the State Government for its approval, in that eventuality, the State Government would take an appropriate decision in a further period of one month from the date of receipt of such proposal/recommendation.
We are also mindful of the fact that the order of the State Government, according prior approval, was passed in December, 2005.
Improvement Trust executed the said decision and passed the necessary resolution bearing No.70 on Rajan Kumar 2014.05.07 12:41 I attest to the accuracy and integrity of this document Chandigarh CWP No.8456 of 2008 [31].03.09.2008.
Accordingly, drawings were prepared for making changing in the layout plan and approval of the State Government was given on 10.09.2009.
This petition was filed after three years of the decision of the State Government on 19.05.2008, and since then a further period of six years have also elapsed.
Pursuant to the amendment carried out in the scheme, site in question continues to be used for commercial purposes.
That being so, we deem it just and appropriate to keep our order in abeyance and allow the status quo to continue till a conscious and appropriate decision is taken by the Improvement Trust and/or the State government, as has been so directed.
With these observations, we close the proceedings in this public interest litigation, leaving the parties to bear their own costs.
(SANJAY KISHAN KAUL) (ARUN PALLI) CHIEF JUSTICE JUDGE May 06, 2014 Rajan Rajan Kumar 2014.05.07 12:41 I attest to the accuracy and integrity of this document Chandigarh