Rajive Bhalla, J.
1. Prayer in the present writ petition, filed under Articles 226/227 of the Constitution of India, by the petitioners, is for the issuance of a writ in the nature of certiorari quashing the orders dated 10.1.1994 and 11.3.2003, Annexure P-14 and P-17 respectively, as also for the issuance of a writ of mandamus directing the respondents not to demolish the petitioner's factory.
2. A brief narrative of the facts, that have led to the filing of the present writ petition, would be appropriate.
3. The petitioner-company claims to have purchased 6000 sq. yards of land, situated at G.T. Road, Karnal, vide a registered sale deed dated 17,11.1984. The said land fell within the municipal limits of Karnal town. The petitioners raised construction, pursuant to plans, duly sanctioned by the Municipal Committee, Karnal on 9.1.1985 (Annexure P-2 and P-3). The factory commenced operation in 1985. The petitioners received a notice dated 3.6.2002 from the Tribunal, constituted under the Punjab Scheduled Roads and Controlled Area (Restriction of Unregulated Development) Act, 1963 (for short herein after referred to as 'the Scheduled Roads Act) requiring them to appear before the Tribunal on 18.7.2002. The aforementioned notice referred to show cause notices dated 16.1.1985/30.11.1993, as also an order dated 10.10.1994 calling upon the petitioners to restore the land or building to its original state or to bring it in conformity with the provisions of the Scheduled Roads Act and the Rules framed there under. The petitioners were infonned that as the Tribunal had been constituted, they had a right to file an appeal against the aforementioned order.
4. The petitioners applied for copies of the notice/order, referred to above and on receipt of the same, filed an appeal impugning the aforementioned notices and order.
5. As averred in the writ petition, vide notification dated 120.9.1971, published on 21.9.1971, the State of Haryana issued a notification, under Section 4 of the Scheduled Roads Act, declaring the area around Karnal town to be a controlled area. Pursuant to the aforementioned notification, plans were published on 5.1.1978. In the year 1971, the petitioner's factory was beyond municipal limits.
6. Vide notifications dated 27.10.1975 (Annexure P-8), published on 4.11.1975, under the Haryana Municipal Act, 1973 the limits of Municipal Committee, Karnal were extended, to include the land and factory belonging to the petitioners, within municipal limits.
7. On 15.1.1985, the District Town Planner prepared a report (Annexure P-9) that construction was being raised by one Joginder Lal Chawla, residing near Water Tank, Modern Town, Karnal. On the basis of this report, show cause notices, dated 16.1.1985 (Annexure P-l) and 23.2.1985 (Annexure P-11) were issued to Joginder Lal Chawla, under Section 12 of the Scheduled Roads Act, alleging contraventions of Sections 3, 6 and 8 or 10 of the Scheduled Roads Act. However, these notices were never received by the petitioners.
8. On 18.11.1993, a report was prepared by the Building Inspector/Section Officer in the office of the District Town Planner, Karnal showing that construction had already taken place and now fresh construction was being raised. The report showed the constructed area in blue colour and the fresh construction in red colour. A show cause notice dated 30.11.1993 (Annexure P-l3) was issued by the respondents qua the new construction, which was a small cycle shed, for parking of cycles by the labourers working in the factory. Thereafter, the Assistant Town Planner, passed an order dated 10.1.1994 (Annexure P-14) directing the petitioners to restore the land to its original state and remove the building.
9. As per averments in the writ petition, the aforementioned facts came to the notice of the petitioners upon service of a notice by the Tribunal. The petitioners deny complete knowledge of the notices, issued by the office of the District Town Planner, as also the impugned order (Annexure P-14).
10. On the basis of the aforementioned facts, the petitioners preferred an appeal before the Tribunal, which was dismissed, vide order dated 11.3.2003 (Annexure P-17).
11. Counsel for the petitioner has impugned the order, passed by the Assistant Town Planner (Annexure P-14) and the order, passed by the Tribunal (Annexure P-17), on various grounds. However, he seeks liberty to keep in abeyance challenge on the other grounds, taken in the writ petition and only presses the argument that the order passed by the Assistant Town Planner (Annexure P-14), is without jurisdiction, as power to pass orders qua defaults, under the Scheduled Roads Act, namely, erection or re-erection of buildings etc. in the controlled area, vests with the Director Town and Country Planning. The impugned order (Annexure P-14) has been passed by the Assistant Town Planner, who had no jurisdiction to pass such an order and, therefore, the said order is a nullity. It is further contended that averments to that effect have been specifically made in paras 13(a) and (c) of the writ petition. In the reply field to the aforementioned sub paras, the respondents have averred that powers of the Director Town and Country Planning, Haryana have been delegated to the District Town Planners in the State and in their absence to the next officer, namely, the Assistant Town Planners. However, as no notification, evidencing such delegation to or conferring such authority upon the Assistant Town Planners, has been placed on record, the averments in the writ petition be accepted as correct.
12. Counsel for the respondents, on the other hand, contends that powers of the Director Town and Country Planning, under the Scheduled Roads Act, have been delegated, by way of a notification, to the District Town Planners and in their absence to the Assistant Town Planners and, therefore, the impugned order, passed by the Assistant Town Planner (Annexure P-14), is legal and valid.
13. We have heard learned Counsel for the parties and perused the pleadings.
14. At the very outset, counsel for the petitioner, has confined challenge to the impugned order (Annexure P-14) on the sole ground that the Assistant Town Planner, Karnal had no jurisdiction to pass the impugned order. In so far as the other plea, raised in the writ petition, and as requested by the counsel for the petitioner, we grant liberty to the petitioner to raise these pleas in any subsequent proceedings that may raise between the parties.
15. Admittedly, the impugned order (Annexure P-14) has been passed by the Assistant Town Planner, Karnal, exercising powers of the Director Town and Country Planning, under Section 9 and 12 of the Scheduled Roads Act.
16. The only question that requires adjudication is whether-the Assistant Town Planner, Karnal had any jurisdiction under the provisions of the Scheduled Roads Act, to pass the impugned order, Annexure P-14.
17. The impugned order is titled as being one passed under Sub-section (2) of Section 12 of the Scheduled Roads Act. A perusal of the aforementioned provision reveals that powers to pass an order thereunder vest with the Director Town and Country Planning. Section 2(6) of the Scheduled Roads Act defines 'Director' to mean the Director Town and Country Planning, Haryana and includes any person for the time being appointed by the Government by notification to exercise and perform all or any of the powers and functions of the Director under the Scheduled Roads Act. It is, thus, apparent that orders, under Section 12 of the Scheduled Roads Act, are required to be passed by the Director Town and Country Planning or a delegatee of the Director, duly notified as having been conferred with such powers.
18. In the pleadings, the petitioner categorically asserts that the Assistant Town Planner, Karnal had no jurisdiction to pass the impugned order. The respondents, on the other hand, without specifically denying this fact, have averred that pursuant to notifications, Annexure R-9 and R-10, powers of the Director under the Scheduled Roads Act were delegated to the District Town Planners and in their absence to the Assistant Town Planners.
19. A perusal of the notification, Annexure R-9 reveals that the then Director Town and Country Planning, Haryana, with the approval of the Government delegated his powers and functions, under Section 9, 12 and 16 of the Scheduled Roads Act to the Regional Town Planner, Rohtak and all District Town Planners in the State of Haryana in respect of controlled areas falling within their respective jurisdiction w.e.f. 21.2.1978. The said notification does not state that in the absence of the District Town Planner, his powers under the Scheduled Roads Act, would be exercised by the Assistant Town Planner.
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 and 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 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 and 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 21.5.2002 (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 the 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, Annexture P-14, which was passed by the Assistant Town 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.
24. In view of what has been stated above, the present writ petition is allowed and the impugned order, Annexure P-14, being without jurisdiction, is set aside. In so far as the order, dated 11.3.2003 (Annexure P-17), passed by the Tribunal, in appeal, as we have already held that the impugned order, Annexure P-14, is without jurisdiction, as a natural consequence, the order Annexure P-17 is also set aside. The matter is remitted to the District Town Planner, Karnal for an adjudication afresh, in accordance with law. The present order shall no be construed to be an adjudication on the merits of the controversy, except and in so far as has been stated above. The parties shall be at liberty to raise all such points as have been pleaded and urged in the present writ petition. The parties, through their counsel, are directed to appear before the District Town Planner, Karnal on 30.6.2005. The District Town Planner, Karnal shall make every endeavour to decide the matter, within a period of three months from the date of receipt of a certified copy of this order.