Posted On by &filed under High Court, Punjab-Haryana High Court.


Punjab-Haryana High Court
The Defence Colony Residents … vs State Of Punjab And Others on 11 November, 2011
CWP No. 9917 of 2008                                    1

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH



                                  CWP No. 9917 of 2008

                                  Date of decision:   11.11.2011


The Defence Colony Residents Society (Registered), Jalandhar


                                             ......PETITIONER

                       VERSUS


State of Punjab and others
                                             ..... RESPONDENTS



CORAM:HON'BLE MR.JUSTICE RANJAN GOGOI, CHIEF JUSTICE
      HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH



Present: Mr. Rohit Sud, Advocate,
          for the petitioner.

            Mr. R.S. Khosla, Addl. A.G. Punjab.

            Mr. Amit Sethi, Advocate,
            for respondents No. 2 to 4.

            Mr. Rajiv Atma Ram, Sr. Advocate,
            with Mr. Saurabh Arora, Advocate,
            for respondent No. 5.

            ***
AUGUSTINE GEORGE MASIH, J.

This Public Interest Litigation has been preferred by the

residents of the Defence Colony Area of Jalandhar through the

Defence Colony Residents Society (Registered) alleging that the

sanction has been granted by respondents No. 1 to 4 to M/s Radhey
CWP No. 9917 of 2008 2

Buildwell Private Limited-respondent No. 5 to construct a multiplex

building/shopping mall on Cantt. Road, Jalandhar, a residential area,

which is surrounded by residential houses and is not permissible.

It is the contention of the petitioners that the sanction,

which has been granted to respondent No. 5, could not be issued

despite it being on a non-scheme area since this area is primarily a

residential area and across the Cantt. Road, also it is only an

institutional area where no commercial activity is being carried out

nor can it be permitted. The Cantt. Road has not been declared a

commercial road and, therefore, the sanction granted cannot be

sustained.

M/s Radhey Buildwell Private Limited-Respondent No. 5,

vide application No. 1137 dated 19.02.2007, applied for sanction of

building plan on the plot owned by it for setting up a shopping mall.

On consideration of the application of respondent No. 5, the same

was recommended to the Government for technical approval on

20.03.2007. The same was considered by the Chief Town Planner,

Department of Local Government and vide letter dated 12.08.2007

addressed to the Commissioner, Municipal Corporation, Jalandhar-

respondent No. 2 conveyed that it is not advisable to allow the

proposed commercial construction on the site in question as the site

was adjoining to the Defence Colony, which is a Development

Scheme and the houses on the road are residential and no

commercial construction has been approved on this stretch of road.

This communication, on receipt by the Municipal Corporation,
CWP No. 9917 of 2008 3

Jalandhar, was forwarded to respondent No. 5 by the Municipal Town

Planner who conveyed that the approval for commercial activity

cannot be granted on the plot.

On receipt of this communication from the Municipal

Corporation, Jalandhar, respondent No. 5 submitted a letter dated

23.08.2007 stating therein that the proposed commercial complex is

situated on Cantt. Road, which is a non-scheme area with other

institutional buildings like college, school buildings existing in the

area. The back side of the site is adjoining defence colony area,

which does not face it and there is no direct approach to the site from

the defence colony side. On this representation, the comments were

sought by the Chief Town Planner, Department of Local Government,

Punjab, vide his letter dated 06.09.2007, from the Municipal

Corporation, Jalandhar. In response thereto, the Joint

Commissioner, Municipal Corporation, Jalandhar, vide his letter

dated 19.09.2007, confirmed the facts as stated by respondent No. 3

that the plot does not fall under any scheme and thus, it is in a non-

scheme area. No entry or exit of the site is shown in the map

towards the road on the defence colony plots and the approach of

the site is shown towards the Cantt. Road side. Thereafter, the Chief

Town Planner, Department of Local Government, Punjab, addressed

a letter dated 28.11.2007 to the Commissioner, Municipal

Corporation, Jalandhar requesting therein that a specific report be

sent with clear-cut recommendations, whether commercial building

on the site in question should be permitted or not as per ground
CWP No. 9917 of 2008 4

situation so that the matter could be reconsidered by the

Government. In response to this letter, reply was sent the same day

by the Commissioner, Municipal Corporation, Jalandhar, giving the

earlier details and further stating that there is no hesitation to pass

the map as commercial. On the basis of this response, technical

clearance was granted by the Government on 07.12.2007 and relying

thereon, the Sub-Committee of the Municipal Corporation, Jalandhar,

considered the application dated 19.02.2007 submitted by

respondent No. 5 for approval of the building plan and granted

sanction on 14.02.2008. Letter dated 15.02.2008 communicating the

sanction along with the terms and conditions, which respondent No.

5 was required to comply with, was issued by the Commissioner,

Municipal Corporation, Jalandhar.

The petitioner, in this writ petition, has proceeded on the

assumption that letter dated 28.11.2007 addressed by the

Commissioner, Municipal Corporation, Jalandhar, to the Chief Town

Planner, Department of Local Government, Punjab, was the sanction

granted to respondent No. 5 and, therefore, challenged the same

through the present writ petition. It was alleged that the construction

had been started by respondent No. 5 and, therefore, prayed for the

stay.

The case came up for hearing before this Court on

30.05.2008 when this Court directed respondent No. 5 not to effect

construction on the site in question and respondents No. 1 to 4 to

ensure that no such construction activity is carried out on the site in

question.

CWP No. 9917 of 2008 5

Reply to the writ petition has been filed by the

respondents. Respondent No. 1-State of Punjab has submitted in its

reply that there are two types of areas/colonies within the municipal

boundary; (a) the colonies/areas, which have been developed under

any law of the State such as Development Scheme framed under the

Punjab Town Improvement Act, 1922, Urban Estates developed

under the Punjab Urban Estates (Development and Regulation) Act,

1964, Colonies developed under the License given under Punjab

Apartments and Property Regulation Act, 1995, Focal Points under

the Punjab State Industrial Export Corporation and the Town

Planning and Building Schemes framed under Section 275 of the

Punjab Municipal Corporation Act, 1976, are known as Scheme

Areas and (b) the other areas are termed as Non-Scheme Areas. In

the Scheme Areas, land use of the plots/lands is duly defined while

sanctioning the relevant scheme and erection/re-erection of buildings

in such scheme areas is regulated in accordance with the Schedule

of Clauses of the concerned sanctioned scheme. The erection/re-

erection of the buildings in the areas other than the Scheme Areas is

regulated as per the provisions of the Municipal Building Bye-laws

regarding residential, commercial, industrial or institutional buildings.

Since the site in question falls in a non-scheme area, Municipal

Building Bye-laws would be applicable. Since respondent No. 5

fulfilled the required Bye-Laws, sanction has been granted by the

Government to the building plan for commercial purposes. Earlier

since the building was shown to be surrounded by the residential
CWP No. 9917 of 2008 6

buildings and was adjacent to the Defence Colony, which was

developed under the Improvement Trust Scheme, Government

deemed it proper to advise, vide letter dated 01.08.2007, not to

sanction the commercial plan. However, subsequently when it was

brought to the notice of the Government that it is a non-scheme area

and was situated on 160′ wide main road called the Cantt. Road and

there were other institutional and commercial buildings existing on

the road, technical clearance was granted by the Government vide

letter dated 07.12.2007 subject to compliance of the parameters

mentioned therein. It has further been pleaded that the petitioner

has not challenged the letter dated 15.02.2008 issued by the

Commissioner, Municipal Corporation, Jalandhar, therefore, the writ

petition deserved to be dismissed.

Respondent No. 4-Municipal Town Planner, Jalandhar

has almost towed the same line as respondent No. 1 except stating

that the site in question is situated on the Cantt. Road, which is a

busy main street of the town, upon which many institutional and

commercial buildings are situated such as Khalsa College for Girls,

Atwal House Market, St. Joseph’s School, North India Section of 7th

Adventists School with structure for living quarters and Ruby Nelson

Memorial Hospital etc.

Respondent No. 1, in its reply, has pleaded that the

petition is not within the ambit of the Public Interest Litigation and the

President of the Society has sought to settle his personal vendata

against respondent No. 5. The plot in dispute was earlier a factory of
CWP No. 9917 of 2008 7

one Gopal Singh. It being an industrial plot, its user can be easily

changed into commercial. There is no residential house in front of

the site of respondent No. 5 and across the road, there are colleges,

hospitals and other institutional establishments. It is denied that the

plot of the petitioner is situated within the vicinity of the residential

area. The contentions, as raised by respondent No. 1, have also

been pleaded and put forth by respondent No. 5 in its reply.

When the case came up for hearing before this Court on

14.11.2008, upon hearing the learned counsel for the parties, an

agreed order was passed by the Court appointing Chief Judicial

Magistrate, Jalandhar, as Commissioner, to be assisted by the

District Town Planner, Jalandhar to submit a report after proper site

inspection on Cantonment Road, Jalandhar, indicating whether and if

so the kind of establishments that exist on either side of the said

road. This was done in order to facilitate proper adjudication of the

matter as to whether the area is residential or commercial or non-

scheme mixed use area.

The Commissioner submitted his report on 15.12.2008.

Paras 3 and 4 of the said report read as follows:-

“3. It is hereby submitted that the site in dispute

which is situated on the Cantonment Road, Jalandhar,

towards the Western side of the site, there is residential

house bearing No. 17 and the said house, as per

respectables, it was that of one Mangat Singh and
CWP No. 9917 of 2008 8

towards the Eastern side, there is a vacant plot. In front

of the site in question, a road i.e. towards North is

passing and on the north side of the road, there is a small

park and the boundary wall of Layallpur Khalsa College

for Women is abutting the said small park. K.C.L.

Institute of Law has been newly constructed and the

building is five storeyed which is by the side of Layallpur

Khalsa College for Women towards the east of the said

college. The residential houses have been constructed

towards the southern side of the site in question and the

people are residing therein.

4. Towards the Southern side of the property in

question, a residential house No. 18 of the Defence

Colony has been constructed. After seeing the site and

the establishments on the either side of the property in

question, it has been found that the residential houses

have been constructed towards the western side and on

the southern side of the site in question, whereas on the

eastern side, there was a vacant plot. Myself and the

District Town Planner along with respectables have seen

the establishment on road which is passing in front of the

property in question and it was found that the residential

houses which are situated in the Defence Colony have

been constructed on the side on which the property in

question is situated, whereas towards the northern side

after K.C.L. Institute of Law, Ruby Nelson Memorial
CWP No. 9917 of 2008 9

Hospital has been constructed and thereafter Church and

School namely North India Section of 7th Adventists with

structure for living quarters, whereas after the residential

houses in the Defence Colony abutting the main road on

which the property in question is situated, a building of

St. Joseph’s Convent School is existing.”

To this report, objections have been filed through

additional affidavit on 17.02.2009 by respondent No. 5, wherein it has

been alleged that the Commissioner did not intimate respondent No.

5 as to the date/time of the said visit. It was done in the presence of

the residents of the Defence Colony alone. The report does not

mention the shops, which are available and functioning on Cantt.

Road even though in the site plan attached with the report, the shops

are shown. On the northern side of the site, M/s K.C.L. Institute of

Law, which is a newly constructed five storeyed building by the side

of Layyalpur Khalsa College for Women, has been shown.

Photographs have been attached with the affidavit to show other

commercial activities, which are being carried out in the residential

area of the colony and in Atwal Colony (Saundh Complex). Site plan

has also been attached with the affidavit.

In response to this affidavit, petitioner has also filed an

affidavit dated 18.03.2007, wherein it has been mentioned that M/s

K.C.L. Institute of Law has been constructed in the existing premises

of Khalsa College for Women, which has a common entrance from
CWP No. 9917 of 2008 10

the G.T. Road. Besides the commercial activities, photographs have

been attached with the affidavit. They are inside the Atwal house

locality and not of the Cantt. Road. The other commercial activities

are not sanctioned by the Municipal Corporation and are being run

illegally. As regards the shop located on the Garha Road, which is a

declared commercial road, no objection can be raised. Apart

therefrom, the booths, which have been mentioned in the Defence

Colony market, are Government approved booths and there are few

small shops, Doctors’ clinics, which have been shown in the

photographs are being run illegally in the residential colony.

An affidavit dated 04.05.2009 has also been filed by

respondent No. 5 stating therein that the site plan, which was

prepared in the year 1963 for Development Scheme of 50 Acres on

Cantt Road, Jalandhar (now called Defence Colony) would show that

the site in dispute was a factory of Gopal Singh and rest of the land

was agricultural land. Layout plan has also been placed on record of

the said scheme where the site has been shown as a factory. To

which it has been responded by the petitioner vide affidavit dated

20.08.2009 that as per the revenue records of the years 2005 to

2008, the land has been shown as gair abadi land, which cannot be

said to be now an industrial area and since the area now is purely a

residential and an institutional area, it cannot be converted into the

commercial area. Further, Cantt Road has not been declared a

commercial road. Reference has been made to the affidavit dated

18.03.2009 filed in this Court by Sh. Bhajan Singh, PSS-I, Under
CWP No. 9917 of 2008 11

Secretary, Department of Local Government, Punjab, Chandigarh,

according to which, fourteen roads of Jalandhar have been declared

as commercial, in which the present road does not find mention.

We have heard counsel for the parties, who made their

submissions on the basis of the respective pleadings of the parties

they represent, referred to above and with their able assistance have

gone through the records of the case.

Dealing with the preliminary objection, which has been

raised by the respondents that it is not a public interest litigation and

which has been impugned in the present writ petition, is only an inter-

departmental communication, wherein the Commissioner, Municipal

Corporation, Jalandhar has, vide his letter dated 28.11.2007,

informed the Chief Town Planner, Department of Local Government,

Punjab, Chandigarh that there is no hesitation to pass the map as

commercial, would not be maintainable and that the sanction letter

dated 15.02.2008 communicated by the Commissioner, Municipal

Corporation, Jalandhar, has not been impugned, needs to be dealt

with by only stating that in a Public Interest Litigation, such technical

objections cannot be sustained and accepted. The primary thrust

and emphasis of the Court, while dealing with such like cases, is to

see that justice is done to all and the basic purpose is to see that by

some act or conduct of a person/authority/agency, the public purpose

and interest is not defeated/jeopardized. This objection of the

respondents does not carry weight and is thus, rejected.
CWP No. 9917 of 2008 12

The question, which needs to be answered in this case

is, whether a site, which is surrounded by residential houses on their

sides, making it primarily a residential area, situated on a road which

is not declared as a commercial road and across the road the area is

institutional only, could be granted permission to raise a building,

which is purely commercial in nature especially when no other

commercial activity is being carried out in the area or earlier

permitted ?

It is apparent from the report of the Local Commissioner

that no commercial activity is being carried out in the locality. As per

the site plan attached with the report, the side of the road, on which

the site in dispute is situated, is purely residential except for one

school, which cannot be termed as commercial. On the opposite

side of the road also, there is no commercial activity and the area is

institutional in nature as there is a College, a Law Institute, a School

and a Charitable Hospital.

The objection raised by respondent No. 5 to the report of

the Local Commissioner, wherein it has been stated that commercial

activities are being carried out in the area, to which it has been

responded that the said activities are being carried out illegally

without the permission of the Municipal Corporation and small

booths, which are in the Defence Colony, are approved by the

Government and none of them opens on the Cantt Road to which

there is no rebuttal. If some illegal activities are being carried out in

the area/road, without the sanction of law/authorities, that cannot be
CWP No. 9917 of 2008 13

made the basis to claim the same benefit by any party. Equity and

discrimination cannot be pleaded and claimed in derogance to law.

What was required to be submitted by the Local Commissioner was

the report of the activities being carried out on the Cantt. Road.,

which has been done. The report submitted by the Commissioner is

in accordance with and in compliance with the order passed by this

Court. In this report it has been stated that no commercial activity

was being carried out on the Cantt Road, which is clear also from the

site plan attached and thus, this report is accepted.

It is not in dispute that wherever the Municipal

Corporation and the Government found that on a particular road,

commercial activity is being carried out or the area is conducive to

the said purpose, that road has been declared a Commercial Road.

In Jalandhar, 14 such roads were identified and declared as

commercial but Cantt Road does not find mention therein. In such a

situation, it cannot be said that respondent No. 5 could have been

granted the permission to raise a commercial building in an area,

which is primarily residential in nature with a few educational and

charitable institutions running near it and that too across the road.

It is not in dispute, as is apparent from the site plans

placed on record that the area and the road, on which the site in

dispute is in existence, is primarily a residential area and obviously,

St. Joseph’s School, which falls on the side on which the site in

dispute is in existence, blends easily with the residential area. The

commercial area and commercial activities are totally different and do
CWP No. 9917 of 2008 14

not go in tandem with the residential area as the requirements and

the effects thereof are totally different. Commercial activities and

especially the shopping mall has the potential of creating nuisance if

permitted in a residential area, which primarily is a calm and quite

place to live in and the purpose is quite different. The serenity of the

area is totally disturbed. If such like activities are permitted to be

carried out, the basic concept of planning and planned development

would be defeated and would create a situation, which would be

chaotic. The Court cannot be a party to such chaos and confusion.

By now it is well established and accepted norm of

planning and planned development that residential, commercial,

institutional and industrial sectors/areas should be separately culled

out and situated in such a manner that one does not interfere with

the other rather each complementing the other in a manner, which

would create an atmosphere conducive to the growth and systematic

progress of the society, which would be hampered if action of the

authorities, as in the present case, is approved.

In view of the above, the present petition is allowed. The

approval granted to the building plan of respondent No. 5 by the

Municipal Corporation, Jalandhar, which has been communicated

vide letter dated 15.02.2008, stands quashed.

During the course of hearing, this Court had put a

question to the respondents as to why different norms have been

prescribed for the scheme areas and non-scheme areas with regard

to the commercial and residential areas within the municipal limits.
CWP No. 9917 of 2008 15

In response thereto, an affidavit dated 18.03.2009 has been filed by

the State, wherein it has been mentioned that the Department of

Local Government has prepared a proposal for amendment in the

norms of commercial buildings and the same have been circulated

to the Commissioner of the Municipal Corporations and Regional

Deputy Directors for seeking their comments on 29.12.2008 but no

decision thereon has been taken as yet.

We are of the view that the said proposal with regard to

the amendment of the Bye-Laws of the Municipal Corporation needs

to be finalized at the earliest, if not done till date and accordingly,

direction is issued to do the same within a period of three months.

An affidavit dated 30.09.2010 of Sh. H.S.Nanda, IAS,

Special Secretary, Local Government Department, Punjab, states

that the Local Government decided to make certain amendments in

the existing building Bye-Laws and after incorporating the same,

prepared a composite Building Bye-Laws called as “Punjab Model

Building Bye-Laws, 2010” and circulated to all Urban Local Bodies

vide Memo dated 23.04.2010 for taking further necessary action for

notification of these Bye-Laws. The relevant extract regarding norms

of construction of commercial buildings and Multiplexes in Punjab

Model Building Bye-Laws, 2010 was also placed as Annexues R/3

and R/4 respectively along with the said affidavit.

Direction is issued to the Urban Local Bodies of Punjab

State to take further necessary action for notification of these Bye-

Laws, if already not done, within a period of three months.
CWP No. 9917 of 2008 16

As is apparent from the affidavits filed by the petitioner

and respondent No. 5, there are some commercial activities being

carried out in the area in the form of small shops, clinics of doctors

etc. in the houses illegally. Direction is issued to the Municipal

Commissioner, Municipal Corporation, Jalandhar to look into the

same and take action in accordance with law to stop such illegal

activities. This exercise be completed within a period of six months.

The above directions be carried out within the time

stipulated therein from the date of receipt of certified copy of this

order.

( RANJAN GOGOI )                    (AUGUSTINE GEORGE MASIH )
  CHIEF JUSTICE                             JUDGE



November 11, 2011
pj
 

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