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2003 DIGILAW 1248 (PNJ)

Pradeep Kumar v. State Of Haryana

2003-09-05

HARJIT SINGH BEDI, SATISH KUMAR MITTAL

body2003
Judgment Satish Kumar Mittal, J. 1. In the present writ petition, the petitioner has impugned the notice dated 1.4.1988 (Annexure P5), order dated 1.2.1990 (Annexure P8), passed by respondent No. 5. Orders dated 1.7.2003 (Annexure P12) and 18.8.2003 (Annexure P14), passed by respondent No. 3 under the provisions of the Punjab Scheduled Roads and Controlled Areas (Restriction of Unregulated Development) Act, 1963 (hereinafter referred to as the Act). The petitioner has also impugned the notification dated 10.9.1971 (Annexure P1) issued by the Government of Haryana under Section 4(1) of the Act. 2. The petitioner contends that he and his family members purchased the land measuring 5 kanals 5 marlas vide two registered sale deeds dated 10.12.1987 and 11.2.1988. After purchase of the said land, the petitioner started raising construction on the land in the month of March, 1988. It is the pleaded case of the petitioner that he had completed the construction up to December, 1988 but he has not annexed any proof in this regard. It is undisputed that the land on which the petitioner raised the construction is falling in the area which was declared as controlled area vide notification dated 10.9.1971 issued by the Government of Haryana under Section 4(1) of the Act. It is pertinent to mention that the petitioner vide application dated 6.12.1987 applied for change of land use from the Director, Town and Country Planning Department, Haryana, but the said prayer of the petitioner was declined vide order dated 14.3.1988. In spite of that the petitioner started raising construction in violation of the mandatory provisions of the Act. 3. When the petitioner was raising the aforesaid construction in the year 1988. A show-cause notice dated 1.4.1988 (Annexure P5) was issued to him and he was warned that as the same is falling under the controlled area and it would contravene Sub-section (1) of Section 7 of the Act. Therefore, he was asked to stop further construction. In the said notice, it was also mentioned that the petitioner had laid out a means of access of his land at Panipat-Karnal G.T. road in contravention of Section 3 of the Act. He was required by the said notice to immediately stop the construction and to appear before the authorities on 18.4.1988. In the said notice, it was also mentioned that the petitioner had laid out a means of access of his land at Panipat-Karnal G.T. road in contravention of Section 3 of the Act. He was required by the said notice to immediately stop the construction and to appear before the authorities on 18.4.1988. Neither the petitioner replied to the aforesaid show-cause notice nor he appeared before the authorities for hearing on the due date, ultimately, the order dated 1.2.1990 (Annexure P8) was passed against him directing the petitioner to restore the land to its original position and to bring it in conformity with the provisions of the Act and the Rule made thereunder. The petitioner did not challenge the aforesaid order. 4. On 22.9.2000 a notice was issued by the Superintendent of The Tribunal constituted under the Act intimating the petitioner that he can file an appeal against the order dated 1.2.1990 before the Tribunal. In response to the said notice, the petitioner filed an appeal against the order dated 1.2.1990 before the Tribunal. The said appeal was dismissed by The Tribunal vide its order dated 1.7.2003 (Annexure P12), The Tribunal has held that the petitioner raised the construction on the land in question in violation of Section 3 and 7(1) of the Act as neither he sought any permission before laying out means of access to Panipat-Karnal G.T. Road nor any permission was taken by him before changing the use of land. It was also held that the application of the petitioner for change of land use was rejected by the Director, Town and Country Planning vide his order dated 14.3.1988. Therefore, the construction raised by the petitioner for using the land for commercial purpose is wholly illegal and in violation of the aforesaid provisions of the Act. 5. A review application against the aforesaid order dated 1.7.2003 was also dismissed vide order dated 18.8.2003 (Annexure P14). All these orders have been challenged by the petitioner in this writ petition. 6. While impugning the aforesaid orders and the action taken by the respondents. 5. A review application against the aforesaid order dated 1.7.2003 was also dismissed vide order dated 18.8.2003 (Annexure P14). All these orders have been challenged by the petitioner in this writ petition. 6. While impugning the aforesaid orders and the action taken by the respondents. Shri Ashok Aggarwal, learned senior counsel for the petitioner, submitted that the notification dated 10.9.1971 (Annexure P1) issued by the State of Haryana under Section 4(1) of the Act dealing the area around the Municipal Town, Panipat as controlled area for the purpose of the Act was not published in at least two newspapers printed in language other than English as required under Sub-section (2) of Section 4 of the Act. In this regard, it has been stated that the aforesaid gazette notification dated 10.9.1971 was only published in Indian Express on 16.11.1971 in English and in Dainik Hindi Mialp on 3.2.1971 in Hindi. But this notification was published in second Hindi newspaper Veer Arjun only on 25.1.1992. Therefore, the mandatory requirement of Section 4(2) of the Act regarding publication of the notification in at least two newspapers other than English had not been complied with at least prior to year 1992. Therefore, the petitioner can not be held liable for any contravention of the Act in the year 1988. 7. We have considered the aforesaid submissions made by the learned senior counsel for the petitioner. The petitioner did not raise any such point before the Tribunal in his grounds of appeal. In the appeal, he did not impugn the action of the respondents on this ground that the notification dated 10.9.1971 was not properly published as per the requirement of Sub-section (2) of Section 4 of the Act. When the petitioner purchased the land in question and he wanted to raise the construction, a show-cause notice was issued to him by the authorities under the Act not to raise construction without taking the requisite permission under the Act. In response to that, the petitioner applied for the change of land use and his application was rejected on 14.3.1988. Therefore, it can not be said that the petitioner was having no knowledge of the aforesaid notification. In response to that, the petitioner applied for the change of land use and his application was rejected on 14.3.1988. Therefore, it can not be said that the petitioner was having no knowledge of the aforesaid notification. Even otherwise, at that time, the petitioner did not take such plea before the authorities that the notification dated 10.9.1971 was not properly published, therefore, it was not applicable on the land in question In view of these facts, now at this stage we cannot go into the disputed questions of facts whether the notification dated 10,9.1971 was issued in two newspapers other than English. However, as per the averments made in the writ petition, this notification was duly published in one English as well as in one Hindi newspaper. Similar contentions were considered and rejected by the Division Bench of this Court in Ahuja Vaishno Dhaba No. 1 v. The State of Haryana and Ors., (C.W.P. No. 2294 of 2003, decided on 25.4.2003), while making the following observations:- "In our view, delayed publication of the notification under Section 4 of the Restriction of Unregulated Development Act, 1963, declaring the area in question as controlled area would in no way be of any direct or indirect benefit to the State. Likewise, delay in finalising of the development plan under Section 5 of the Restriction of Unregulated Development Act, 1963, does not vest any direct or indirect beneficial interest in the State Government. So far as the Restriction of Unregulated Development Act, 1963 is concerned, the statement of objects and reasons disclose that the legislation was effected only to restrict the use of land in order to prevent ill planned and haphazard growth. As we have already noticed above, this Court struck down Sub-section (1A), of Section 7 of the Restriction of Unregulated Development Act, 1963, in United Riceland Pvt. Limited case (supra) on the ground that, discrimination was not permissible under the Restriction of Unregulated Development Act, 1963, between private persons on the one hand, and governmental agencies on the other. As we have already noticed above, this Court struck down Sub-section (1A), of Section 7 of the Restriction of Unregulated Development Act, 1963, in United Riceland Pvt. Limited case (supra) on the ground that, discrimination was not permissible under the Restriction of Unregulated Development Act, 1963, between private persons on the one hand, and governmental agencies on the other. In view of the above, it is not possible for us to hold that delayed publication of the "controlled area" under Section 4 of the aforesaid Act as well as the delayed finalisation of the development plans under Section 5 of the aforesaid Act can be described as an act of colourable exercise of powers so as to vitiate the action taken by the authorities under the provisions of the Restriction of Unregulated Development Act, 1963." 8. Secondly, learned senior counsel for the petitioner submitted that even if for the sake of arguments it is presumed that there was no fault on the part of the State while complying with the provisions of Section 4(2) of the Act regarding publication of the notification under Section 4(1) of the Act, no proceedings against the petitioner could have been initiated against the petitioner regarding violation of Section 7(1) of the Act, as the permission for change of land use under Section 7(1) is required from the date of publication of notification under Section 4(1) of the Act. Since the publication of the notification under Section 4(2) of the Act was made on 25.1.1992, therefore, any construction raised prior to the said publication cannot be said to be violative of Section 7(1) of the Act. 9. Thirdly, learned senior counsel for the petitioner further submitted that the building constructed by the petitioner was beyond 30 metres of the boundary of the land owned by the petitioner and facing towards G.T. Road, therefore, there is no question of construction having been made by the petitioner in violation of Section 1 of the Act. We also do not find any force in the aforesaid condition of the learned senior counsel for the petitioner. The allegation against the petitioner is that he had laid access to Panipat-Karnal scheduled road without permission of "the Director and it on this" ground that it was held that the petitioner has violated Section 3 of the Act. We also do not find any force in the aforesaid condition of the learned senior counsel for the petitioner. The allegation against the petitioner is that he had laid access to Panipat-Karnal scheduled road without permission of "the Director and it on this" ground that it was held that the petitioner has violated Section 3 of the Act. This fact has not been disputed that the petitioner has accessed to his building from the side of the G.T. Road. This fact is also clear from the photograph annexed as Annexure P3 with this petition. 10. We have considered this submission of the learned senior counsel for the petitioner and do not find any force in the same. When the petitioner wanted to raise construction after purchase of the land in question, he was issued a show-cause notice not to raise construction. Thereupon, the petitioner applied for change of land use which was declined by the authorities. Now, the petitioner cannot be allowed to say that any constructions raised by him prior to publication of the notification on 25.1.1992, are not violative of Section 2(1) of the Act. 11. Learned senior counsel for the petitioner further submitted that the Government has not prepared and published the Draft plan in the prescribed manner showing the controlled area and signifying therein the nature of restrictions and conditions proposed to be made applicable to the controlled area under Section 5(1) of the Act. Therefore, till the publication of such plan the petitioner is not required to seek any permission for change of the land use under Section 7(1) of the Act. Thus, the action of the respondents is not legal. 12. We have also considered this submission of the learned counsel for the petitioner and do not find any force in the same. Firstly, the petitioner cannot raise this plea because he had already sought the permission for change of land use in the year 1988 and the same was declined. Secondly, after the issuance of the notification under Section 4(1) of the Act declaring the area as controlled area, no person can use the land other than the original use of the land at the time of issuance of such notification. Secondly, after the issuance of the notification under Section 4(1) of the Act declaring the area as controlled area, no person can use the land other than the original use of the land at the time of issuance of such notification. A similar contention has been rejected by Division Bench of this Court in Ahuja Vaishno Dhaba No. 1s case (supra) by observing as under:- "It is emphatically submitted that Section 5 is the cornerstone of the foundation of the instant legislation which delineates the parameters of the construction activity for the "controlled areas" and, therefore, till the finalisation of the aforesaid plans, access to a scheduled road, or construction within the "controlled area" or change of land use, cannot be branded as unauthorised. It is contended in this behalf that an act of omission or commission at the hands of an individual, could be described as blameworthy only if it violates the norms laid down in the development plan prepared under Section 5 of the Restriction of Unregulated Development Act, 1963. It is not possible for us to accept the contention of the learned counsel for the petitioner. A perusal of Section 3 of the Restriction of Unregulated Development Act, 1963. reveals that the effective date, whereafter access to a scheduled road is prohibited, is the date of enforcement of the Restriction of Unregulated Development Act, 1963. It would be pertinent to mention that the Restriction of Unregulated Development Act, 1963. received the assent of the President of India on 22.11.1963 and was published in the Punjab Government Gazette (Extraordinary), Legislative Supplement, on 30.11.1963, A development plan as envisaged under Section 5 of the Restriction of Unregulated Development Act, 1963, has to be prepared only after an area is notified as "controlled area" under Section 4 of the Restriction of Unregulated Development Act. 1963. It is, therefore apparent, that the Legislature by a conscious will stipulated the effective date of enforcement of the restrictions envisaged under Section 3. Say a date prior to the date of preparation and/or finalisation of a development plan under Section 5. Likewise, Section 6 of the Restriction of Unregulated Development Act. 1963, restricts erection or re-erection of buildings in "controlled areas". The restraint envisaged under Section 6 of the Restriction of Unregulated Development Act. Say a date prior to the date of preparation and/or finalisation of a development plan under Section 5. Likewise, Section 6 of the Restriction of Unregulated Development Act. 1963, restricts erection or re-erection of buildings in "controlled areas". The restraint envisaged under Section 6 of the Restriction of Unregulated Development Act. 1963, are effective from the date on which the area in question is declared as "controlled area" by a notification issued under Section 4 of the Restriction of Unregulated Development Act, 1963. Development plans under Section 5 can be prepared only after the declaration of an area as "controlled area". It is, therefore, clear that the Legislature did not intend to stall the restrictions envisaged in respect of erection or re-erection of buildings in a "controlled area" till the finalisation of development plans. Section 7, which deals with prohibition of change of land use in "controlled areas", the restraints expressed therein takes effect from "..the date of publication of the notification under Sub-section (1) of Section 4...". The mandate of Section 7, therefore, also clearly enforces the restrictions envisaged therein from the date of notification of an area as "controlled area". Development plans under Section 5, as noticed above, are prepared only after the notification of an area as "controlled area". It is, therefore, not possible for us to accept from the clear legislative intent of the provisions of Sections 3.6, and 7 of the Restriction of Unregulated Development Act. 1963, that the restrictions envisaged therein are only enforceable from the date of publication of the development plan under Section 5 of the said Act. Even on a harmonious construction of Sections 3 to 7 of the Restriction of Unregulated Development Act, 1963, it is not possible for us to hold that the scheme of legislation in question pre-supposed the finalisation of the development plans under Section 5 of the Restriction of Unregulated Development Act, 1963, as a pre-requisite to the restrictions expressed through Sections 3.6 and 7 of the Restriction of Unregulated Development Act, 1963. 13. In the last, learned senior counsel argued that various restrictions imposed by Sections 3, 4, 6 and 7 of the Act are unreasonable and violative of the provisions of Articles 19(1)(g) and 300-A of the Constitution of India. It is canvassed that an owner of the property is entitled to enjoy the property in any manner he likes. 13. In the last, learned senior counsel argued that various restrictions imposed by Sections 3, 4, 6 and 7 of the Act are unreasonable and violative of the provisions of Articles 19(1)(g) and 300-A of the Constitution of India. It is canvassed that an owner of the property is entitled to enjoy the property in any manner he likes. In view of the restrictions imposed under the Act, an owner of the land will not be able to enjoy his property for any other use of the land. The restrictions have been imposed for unlimited period. He can not utilise his agricultural land for any other purpose and can not carry on any occupation, trade or business on his land. Thus the restrictions imposed by the various provisions of the Act are not reasonable and thus violate of the aforesaid Articles of the Constitution. In support of his contention, the learned senior counsel put reliance on the decision of the Supreme Court in Bhavnagar University v. Palltana Sugar Mills Pvt. Ltd and Ors., A.I.R. 2003 S.C. 511. 14. We do not find any substance in the aforesaid contention of the learned counsel for the petitioner. The Act was enacted by the State Legislation for regulating the constructions of land on both sides of the notified Roads and to control unrestricted use of the land in the controlled area to stop unplanned, unregulated and hazardous constructions" and development around the big cities. The restriction imposed by the various provisions of the Act on the use of land can not be said to be unreasonable keeping in view the loudable object of the Act. The judgment cited by the learned counsel has no relevancy on the instant controversy. The provisions of the Act do not deprive the owner of the land from use of the land but the same only regulate the use of the land, and thus the same can not be said to be violative of Articles 19(1)(g) and 300-A of the Constitution. In view of the aforesaid, we do not find any merit in this petition. Dismissed in limine.