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 8towards 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 9Hospital 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