Gurdial Singh & Ors. v. State of Punjab & Ors.

CORAM:- HON'BLE MR.JUSTICE JASBIR SINGH HON'BLE MR.JUSTICE AUGUSTINE GEORGE MASIH *** Present:- Mr.Ashok Singla, Advocate, for the petitioners in C.W.P.No.10540 of 2008. Mr.Naresh Kaushal, Advocate, for the petitioners in C.W.P.No.10642 of 2008. Mr.Manohar Lall, Addl.A.G., Punjab, for respondents No.1 and 3. Mr.Manish Bansal, Advocate, for respondents No.2 and 4. *** Augustine George Masih, J. By this order, we propose to dispose of two writ petitions i.e. C.W.P.Nos.10540 of 2008 and 10642 of 2008 which arise out of the same acquisition with the basic facts being the same. Improvement Trust, Sangrur-respondent No.4 formulated a Scheme under Section 24 read with Section 28(20 of the Punjab Town Improvement Act, 1922 (hereinafter referred to as 'the Act') named as C.W.P.No.10540 of 2008 -2- Mansahiya Nagar Scheme, followed by issuance of notice under Section 36 of the Act. Objections were filed by the petitioners which were considered by the Improvement Trust, Sangrur vide resolution No.116 dated 9.11.2005 and it recommended the release of 15 buildings of 'A' class construction including the buildings of the petitioners in C.W.P.No.10540 of 2008 subject to payment of charges. Vide this resolution, acquisition of 10 plots which fell between these 'A' class buildings was also recommended for being released because the plots were of different sizes and were situated at scattered places which included the plots of the petitioners in C.W.P.No.10642 of 2008. The notice issued under Section 36 of the Act and the recommendation as made by the respondent-Trust vide its resolution No.116 dated 9.11.2005 were duly considered by the respondent- State Government. The Scheme was approved by the State Government in exercise of powers conferred under Section 41(1) of the Act and notification dated 15.5.2006 issued under Section 42 of the Act. The recommendation as made by the Improvement Trust vide its resolution dated 9.11.2005 was accepted in part and the houses mentioned at Sr.Nos.1 to 10 in the said resolution were exempted whereas property/houses at Sr.Nos.11 to 15 and the vacant plots were not exempted by the respondent-State. An Award dated 9.5.2008 was passed by the Land Acquisition Collector, Improvement Trust-respondent No.2. Aggrieved by the passing of the Award, the petitioners have approached this Court by preferring the above-mentioned writ petitions, praying for quashing of the award dated 9.5.2008. Counsel for the petitioners in C.W.P.No.10540 of 2008 submits that the petitioners have built up houses which are of 'A' Class construction C.W.P.No.10540 of 2008 -3- which were constructed before the issuance of notice under Section 36 of the Act. Further, the petitioners are residing in these houses and are pursuing their avocation from there by using it for the said purpose. In case the exemption is not granted to the petitioners' properties, their residential houses and their livelihood would be snatched away religating them to the road without any roof and source of livelihood. He contends that when the Improvement Trust, which had floated the Scheme, had itself recommended exemption in favour of the petitioners, they should not be deprived of the said benefit. His further contention is that 'A' Class construction houses in the middle of the Scheme have been exempted from acquisition and even 10 houses as mentioned in resolution No.116 dated

9.11.2005 have been released from acquisition by the Government while granting approval under Section 41(1) of the Act to the Scheme and have not been included in the notification issued under Section 42 of the Act. He, therefore, prays that the petitioners have been discriminated against vis- a vis. those having been granted exemption and, therefore, deserve the same benefit as has been granted to others. It has further been contended by the counsel for the petitioners that the petitioners had earlier undertaken before this Court that they would stop the use of their property for industrial purposes and would restrict the use to only residential purpose. He, on this basis, prays for acceptance of the present petition. Counsel for the petitioners in C.W.P.No.10642 of 2008 submits that while recommending the case of the petitioners for release of their plots from acquisition vide resolution dated 9.11.2005 the Improvement Trust had itself stated that the plots are of different sizes and are located at scattered places which cannot be adjusted in the Scheme on “as is where is” C.W.P.No.10540 of 2008 -4- basis and, therefore, these plots deserve to be released from acquisition. His further contention is that the petitioners have got these plots for building up their own residential houses but the same have not been released by the Government despite the passing of resolution of the Improvement Trust in favour of the petitioners. He, on this basis, prays for the acceptance of their petitions. Per contra, counsel for the respondent-Improvement Trust does not dispute the factum regarding the passing of resolution dated 9.11.2005 by the Trust in favour of the petitioners. However, he submits that the resolution passed by the Improvement Trust is not final and it is subject to approval by he Government as per the provisions of the Act. The State Government has while approving the Scheme not accepted the recommendations made by the Trust vide the above-mentioned resolution in toto but has accepted a part thereof which has been given effect to as is apparent from the notification issued under Section 42 of the Act. Counsel for the State submits that although the Trust had passed the above-mentioned resolution on consideration of the objections preferred by the land owners against acquisition of their land but keeping in view the overall Scheme and the effective implementation thereof, the Government has taken a well considered decision in that regard. While referring to the affidavit dated 23.7.2010 submitted by Sh.S.K.Sharma, Additional Secretary to Government of Punjab, Department of Local Government, Punjab which was filed in this Court in response to the directions issued by this Court on 27.7.2009, he submits that on receipt of the proposal from the Improvement Trust, Sangrur, the issue with regard to exemption of these properties from acquisition, which were referred to in C.W.P.No.10540 of 2008 -5- resolution No.116 dated 9.11.2005, was at the first instance, examined by a Committee headed by the Regional Deputy Director, Urban Local Bodies, Patiala. Thereafter, the proposal was examined by the Chief Town Planner, Local Government Department, as per the Government instructions dated

8.9.1976 with regard to exemption of the properties from acquisition, according to which no vacant plot can be exempted and only those built up properties shall be allowed to be exempted which have been constructed before the preliminary notification of the Scheme and are of 'A' class construction with a further proviso that it fits in the overall layouts of the Scheme. Out of the properties which were placed at Sr.Nos.11 to 15 by Improvement Trust, Sangrur vide its resolution, properties at Sr.Nos.11, 13 and 14 were being used as industrial shed/workshop which was non- conforming with the residential Scheme. So, these properties did not fit into the layout plan. Property at Sr.Nos.12 and 15 fall in pocket reserved for special purposes which abut the main road and adjoin the pocket reserved special purposes (commercial). He, on this basis, contends that taking in view the report of the Chief Town Planner dated 24.4.2008 (Annexure R-3) and the report of the Committee dated 1.4.2008 (Annexure R-2), the Government has decided to exempt only those properties from acquisition which fit into the layout plan and in no way tinker with the basic Scheme. The vacant plots could not be exempted in the light of the instructions dated 8.9.1976 and, therefore, the Government has approved the Scheme under Section 41(1) of the Act and published the notification under Section 42 of the Act in accordance with law and as per the policy decision of the Government. There has not been any violation of the policy and, therefore, the decision of the Government C.W.P.No.10540 of 2008 -6- deserves to be upheld. On this basis, a prayer has been made for dismissal of the writ petitions preferred by the petitioners. We have heard counsel for the parties and have gone through the records of the case. Various interim orders were passed by this Court. In pursuance thereto, affidavits have been filed by the respondents. Vide order dated 8.9.2010, this Court had, in C.W.P.No.10540 of 2008, passed an order directing the respondents to reconsider the contention as has been raised by the petitioners in these writ petitions. In response to this direction, an affidavit dated 28.9.2010 has been filed wherein it has been averred that the matter has been got re-examined by the Additional Chief Town Planner, Local Government, who has reiterated the earlier position wherein he had stated that A class structures are scattered from the pocket under construction. In case exemption in property Nos.12 to 15 is granted, then this pocket reserved for special purposes (commercial) cannot be planned in a composite manner having a proper circulation, parking and pavement etc. These properties cannot be exempted as per the Government instructions dated 8.9.1976 for the reason that these properties do not fit into the Scheme of layout plan and properties at Sr. Nos.13 and 14 are industrial sheds. As regards property No.11, it has been pointed out that it falls in 30' wide road of the proposed layout plan which cannot be exempted. Some part of this property is of A class structure and rest of it is B/C class category or the area is vacant. Same is the position with regard to property Nos.12 to 15 with regard to nature of construction and vacant area. It has further been added that properties at Sr.Nos.13 and 14 are industrial sheds/workshop which also do not fit into the layout plan nor do they qualify for exemption as per the Government policy dated 8.9.1976. C.W.P.No.10540 of 2008 -7- We have perused the site plan which has been placed on record and are of the view that the reasons assigned for not exempting the properties of the petitioners in both the writ petitions are quite justified and are as per the policy/instructions of the Government dated 8.9.1976. Instructions dated 8.9.1976 read as follows:- “Subject Proceeding for exemption of properties from the Scheme of Improvement Trusts. *** Government has considered the issue regarding exemption of properties by Improvement Trusts falling within the development schemes while recommending exemptions the trusts shall observe the following standard: (i) No vacant plot shall be exempted: (ii) Exemption of built up properties shall be allowed on conditions given below. d) Provided the building was constructed before the preliminary notification of the scheme. e) Subject to its fitting in the overall layout of the scheme and f) The standard of construction should be “A” Class. The Exemption shall be granted on the condition that the owner of any such property shall be required to pay betterment charges under section 50(a), (b), (c ), (d) exemption fee under section 56 and development charges under the Town Improvement Act. These instruction C.W.P.No.10540 of 2008 -8- may be kept in view in future in relation to all the schemes of the Trusts. Sd/- Deputy Secretary (I) For Secretary to Government Punjab, Local Government Department.” Perusal of the above would show that the properties of petitioners in C.W.P.No.10540 of 2008 cannot be exempted as they do not fit into the overall layout Scheme. The site plan clearly depicts that properties at Sr.Nos.12,13,14 and 15 fall in the site reserved for special purpose (commercial) whereas they are being used for residential-cum- industrial purposes as detailed above. Property No.11 falls in 30' wide road of the proposed layout plan and further, this property is being used as industrial shed which does not fit into the overall layout scheme, as is apparent from affidavit dated 28.9.2010 filed by the respondent-State and, therefore, cannot be exempted. As regards properties of the petitioners in C.W.P.No.10642 of 2008, the same being vacant plots also cannot be exempted as per the above policy. In view of the above, we do not find any merit in these writ petitions and accordingly, dismiss the same. A photostat copy of this order be placed on the files of connected case. ( JASBIR SINGH ) JUDGE December 15th , 2010 poonam ( AUGUSTINE GEORGE MASIH ) JUDGE Whether referred to Reporters? Yes/No