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Thursday, March 26, 2015

declaration that the Application dated 21.8.1998 filed by the plaintiff before the defendants seeking permission for setting up a Country Club/Resort at village Karoran, Tehsil Kharar, District Ropar is deemed to have been allowed and permission granted/sanctioned, the same having not been refused in writing within the statutory period of 90 days of its submission as mandated by the provisions of the Punjab New Capital Periphery Control Act, 1952. Consequential relief of permanent injunction was also sought "restraining the defendants and their agents from interfering in any manner in the works undertaken by the plaintiff over the land and from demolishing the constructions/developments already made over the suit land forcibly or in any other manner." the decree passed by the trial court in favour of the plaintiff, which was affirmed in first appeal, has been reversed by the High Court.

    


                                                          NON-REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION
                     CIVIL APPEAL NOs.4684-4685 OF 2005

DASHMESH EDUCATIONAL SOCIETY       ...APPELLANT(S)

                                   VERSUS

PUNJAB URBAN DEVELOPMENT
AUTHORITY & ORS.                        ...RESPONDENT(S)

                                       WITH

                 SPECIAL LEAVE PETITION (C) No.19226 of 2013
                                      &
                 SPECIAL LEAVE PETITION (C) No.20235 of 2013


                                  JUDGMENT


RANJAN GOGOI, J.


1.    The plaintiff in civil Suit No.65  of  2001  i.e.  Dashmesh  Education
Society  has  preferred  these  appeals  against  the  common  order   dated
12.10.2004 passed by the High Court of  Punjab and Haryana in RSA Nos.  4328
and 4345 of 2002.  By the aforesaid order, the decree passed  by  the  trial
court in favour of the plaintiff, which was affirmed in  first  appeal,  has
been reversed by the High Court.

2.    Civil Suit No.65 of 2001 was filed  seeking  a  declaration  that  the
Application dated 21.8.1998 filed by the  plaintiff  before  the  defendants
seeking permission for setting up a Country Club/Resort at village  Karoran,
Tehsil Kharar, District Ropar is deemed to have been allowed and  permission
granted/sanctioned, the same having not been refused in writing  within  the
statutory period of 90 days of its submission as mandated by the  provisions
of the Punjab  New  Capital  Periphery  Control  Act,  1952.   Consequential
relief of permanent injunction was also sought "restraining  the  defendants
and their agents from interfering in any manner in the works  undertaken  by
the    plaintiff    over    the    land    and    from    demolishing    the
constructions/developments already made over the suit land  forcibly  or  in
any other manner."

3.    According to the plaintiff, a registered body,  by  application  dated
21.08.1998 it had sought permission for setting up  a  forest  hill  country
club/resort within the area of  village  Karoran,  Tehsil  Kharar,  District
Ropar.  According to the plaintiff the project was a non polluting  industry
and was capable of generating substantial employment.  The plaint  averments
also disclosed that it is the case of  the  plaintiff  that  the  area  over
which the resort was planned is covered by the provisions of the Punjab  New
Capital Periphery Control Act, 1952 (hereinafter referred to as "the Act  of
1952").  The application  dated 21.08.1998 submitted by the plaintiff  under
the said Act had initially invoked the response of  the  defendants  in  the
suit who had asked for submission of site plan/location plan  etc.,  all  of
which requirements were complied with  by  the  plaintiff.   No  action  was
subsequently  forthcoming   despite   several   representations/   reminders
submitted by the plaintiff. According to the plaintiff, under Section  5  of
the Act of 1952 a decision was required  to  be  taken  by  the  respondents
within 90 days, failing which, the application  of  the  plaintiff  must  be
deemed to have been accepted.   Hence the suit claiming the reliefs  earlier
noticed.

4.    The suit was contested by the State of Punjab as well  as  the  Punjab
Urban Areas Development Authority (PUDA) contending, inter  alia,  that  the
application filed by the plaintiff was not under Section 5  of  the  Act  of
1952  as  the  essential  requirements  thereof  were  not  complied   with.
Consequently, no question of deemed permission can and does arise. The  suit
was also claimed to be not maintainable as  the  Forest  Department  of  the
State, a necessary party, was not impleaded. Specifically it  was  contended
that the land falls within the purview of the Punjab Land  Preservation  Act
1900 (hereinafter referred to  as  PLPA)  and  attracts  the  provisions  of
Indian Forest Act, 1927 and the Forest  (Conservation)  Act  1980.   It  was
accordingly urged that the land could not be used by any non forest  purpose
without the prior approval of  the  Union  Government  and  that  the  State
Government was not competent in law to give permission  for  setting  up  of
the country club/resort  without  due  permission  from  the  Government  of
India.

5.    The suit, as mentioned earlier, was  decreed  and  the  first  appeals
filed by the State and PUDA were also  dismissed  by  the  learned  District
Judge by order dated 30.04.2002.  Aggrieved, RSA Nos.4328 and 4345  of  2002
were instituted before the High Court by the PUDA and the State  wherein  by
the impugned judgment and decree dated 12.10.2004  the  High  Court  allowed
the second appeals and reversed  the  judgment  and  decree  passed  by  the
learned trial court and  affirmed  by  the  first  appellate  court.  It  is
against the aforesaid order passed in the second appeals that the  plaintiff
in the suit has filed the present appeals.

6.    We have heard the learned counsels for the parties.

7.    It will be appropriate, at  this  stage,  to  notice  the  substantial
questions of law that were framed by the High  Court  for  determination  in
the second appeals in question.

"1.   Whether the request for setting up Forest  Hill  Country  Club  Resort
made in these application dated 21.8.1998 can be  considered  to  have  been
automatically granted on the expiry of 90 days  even  when  the  application
was not submitted under any  specific  provisions  of  the  Act  or  in  the
prescribed proforma and to the appropriate authority?

2.    Whether the provisions of Land Preservation Act, 1900,  Indian  Forest
Act, 1927, the New Punjab Capital (Periphery)  Control  Act,  1952  and  the
Forest (Conservation) Act, 1980 are attracted in the present case?

3.    Whether the plaintiff/respondent could justify  the  legality  of  his
actions of setting up the said Resort within  the  area  falling  under  the
purview of 1952 Act on the  ground  of  huge  expenditure  incurred  on  the
alleged development works on the basis of deemed sanction?

4.    Whether the Forest Guard Sunil  Kumar  was  competent  to  accept  the
report submitted by the Patwari regarding the nature and status of  land  in
question without any reference to either  the  revenue  records  or  to  the
notifications issued under the Acts mentioned in para No.9 above?  More  so,
when the Forest Guard was not specifically detailed for any such purposes?

5.    Whether the construction made  by  the  plaintiff/respondents  without
any specific and  express  permission  from  the  competent  authorities  in
violation of the provisions of the Acts mentioned  in  para  No.9  above  is
illegal and liable to be demolished?"



8.    Though a large number of contentions have been urged on behalf of  the
rival parties it will not be necessary for  us  to  consider  the  same  and
record our views thereon in view of  certain  parallel  judicial  orders  of
the same date i.e. 12.10.2004 that came to be passed by the High Court in  a
PIL registered as WP No.1134 of 2004.  The relevant facts in  the  aforesaid
proceeding may now be taken note of.

9.    An order dated 12.10.2004 was passed  in  the  aforesaid  PIL  to  the
effect that the land in question covered by the PIL (same as in the  present
appeals) is forest land and no non-forest activity is  permissible  thereon.
The said order was challenged before this Court  in  Civil  Appeal  No.4682-
4683 of 2005.  The said civil appeals have since  been  disposed  of  by  an
order of this Court dated 21.05.2014.  By the aforesaid  order  this  Court,
on the grounds and reasons assigned, has set aside the decision of the  High
Court to the effect that the entire land in Village Karoran  District  Ropar
is forest land for the purpose of Section 2  of  the  Forest  (Conservation)
Act, 1980 and has remanded the matter to the High Court for a fresh  hearing
and decision. Pursuant to the aforesaid order  passed  by  this  Court,  the
High  Court  has  since  considered  the  matter  and  directed  a  physical
verification of the land to be made for  determination  as  to  whether  the
same or any part thereof is forest  land  or  not.  Such  determination  was
ordered by the High Court in another separate but connected proceeding  i.e.
CWP No.22756 of 2013 which proceeding along with the  PIL  (CWP  No.1134  of
2004) has since been disposed of after taking on record the  report  of  the
survey undertaken.

10.   The order passed by this Court in civil appeal  No.4682-4683  of  2005
remanding the matter for de  novo  consideration  by  the  High  Court;  the
consequential consideration of the matter by the High Court; the  directions
for survey and the report of survey are subsequent  facts  which  cannot  be
overlooked or ignored while rendering our orders  in  the  present  appeals.
Though valiant efforts have been made by learned counsel for the  appellants
to restrict the scope of the arguments to certain other specific issues  and
not to dwell upon the aforesaid aspects  of  the  case,  the  same  are  too
significant to be overlooked or ignored. In fact, we  have  already  noticed
that specific issues/substantial questions of law were framed  by  the  High
Court in the second appeals in  question  with  regard  to  the  land  being
covered by the provisions of the Forest (Conservation) Act, 1980.  The  High
Court, however, did not feel it necessary  to  go  into  the  said  question
except for the purpose of a prima facie decision thereon for determining  as
to whether the State Forest department was a necessary party  in  the  civil
suit.  In fact, the second appeals were decided on consideration of  certain
other questions namely, as to whether the application for permission was  in
the proper prescribed form; whether relief could have been  granted  to  the
plaintiff  without  impleading  the  forest  department  and  other  similar
questions.  However, in view of the subsequent developments which have  been
noted above there is no escape from the necessity of  consideration  of  the
question as to whether the land on which the resort/country club  is  sought
to be established being a part of the Karoran village is forest land  within
the meaning of the Forest (Conservation) Act, 1980 or  not.  A  decision  on
the said question so  as  to  conclusively  and  effectively  determine  the
rights of the plaintiff has become  unavoidable  in  view  of  the  parallel
developments and orders of this Court in civil appeal  No.  No.4682-4683  of
2005 and the consequential orders passed by the High Court.   In  fact  such
determination of the entitlement of the plaintiff cannot be  short-circuited
by avoiding a decision on the said question particularly when a  substantial
question of law was framed by the High Court in the  second  appeals  before
it as noticed and extracted above i.e.  whether  the  land  in  question  is
covered by the provisions of the Forest (Conservation) Act, 1980.  The  said
question not answered by the High Court  in  the  judgment  under  challenge
will now be requiring a specific determination in  view  of  the  subsequent
development  and  orders  of  the  court  in  the  parallel  and   connected
proceedings in C.A. Nos. 4682-4683 of 2005.

11.   In view of the above, we arrive at the conclusion that  the  aforesaid
determination should now be made by the High Court and for that  purpose  if
the  High  Court  considers  it  necessary  may  allow  parties  to   adduce
additional evidence. Such evidence appears to be readily  available  as  the
appellant themselves have brought on the record of the present  appeals  all
the relevant subsequent developments. Reception of the said material may  be
made in the second appeals by following the procedure prescribed by law  and
thereafter the High Court shall arrive at a decision on the  entitlement  of
the parties in the light of the said materials.   As  the  matter  has  been
pending for long we request the  High  Court  to  expedite  its  process  of
consideration  of  the  matter  in  the  light   of   the   present   order.
Consequently both the appeals are disposed of in terms of  the  direction(s)
as indicated above.

Special Leave Petition (C) Nos.19226 of 2013 & 20235 of 2013



12.   Writ Petition (C) No.12105 of 2013 was disposed of  by the High  Court
of Punjab & Haryana  on  29.5.2013  in  terms  of  an  earlier  order  dated
15.05.2013 passed in writ Petition (C) No.10478 of 2013.  Aggrieved  by  the
orders passed in the two writ petitions, the present SLPs have  been  filed.
By order dated 05.07.2013 of this Court, both  the  SLPs  have  been  tagged
with Civil Appeal No.4682-4683 of 2005. No notice was issued.

13.   Civil Appeal Nos.4682-4683 of 2005 has been disposed of by this  Court
by order dated 21.05.2014 whereby the matters have  been  remanded  back  to
the High Court with certain directions. The present  SLPs  initially  tagged
with the aforesaid two civil appeals have been  de-tagged  and  directed  to
hearing separately.

14. The short  contention  of  the  petitioners  in  the  SLP  is  that  the
Notifications issued under Sections 4 and 5 of the Punjab Land  Preservation
(Chos) Act, 1900 (hereinafter referred to as the  '1900  Act'),  which  were
challenged before the  High  Court  were  issued  under  the  provisions  of
Section 3 of the 1900 Act prior to the amendments made to the  said  Section
3 in 1914 and the somewhat comprehensive amendment of the  entire  1900  Act
effected in the year 1942. According to the  petitioner,  Section  3  having
been amended in 1914 and the very object and purpose of the 1900 Act  having
been also altered by the amendment of  1942,  the  subsequent  Notifications
issued under Sections 4 and 5 in the year being under the old Section  3  of
the 1900 Act are non est in law.

15.   The High Court declined to go  into  the  pleas  raised  in  the  writ
petition on the ground that the writ petitions are  highly  belated  and  in
any case a dispute pertaining to the land is pending before this Court.  The
said dispute, as already noticed, arose in Civil Appeal  Nos.  4682-4683  of
2005 which has since been remanded to the High  Court  and  have  also  been
redecided/ reanswered by the High Court.

16.    In so far as delay in filing  the  writ  petitions  is  concerned,  a
series of Notifications, issued from time to time, had  been  challenged  by
the petitioner. The last of the Notifications  under  challenge  is  of  the
year 2004.  The petitioner apparently came into possession of  the  property
much earlier i.e. in the year 1988.  If that be so,  it  was  necessary  for
the petitioner to bring his challenge before the High Court  well  in  time;
instead the writ petitions were filed in the year 2013.  The view  taken  by
the High Court on account of delay therefore cannot be  faulted  though  the
High Court appears to have computed  such  delay  from  the  date  of  first
Notification issued  under  Section  3  of  the  1900  Act  overlooking  the
subsequent Notifications issued which were also  under  challenge.  Even  if
the subsequent Notifications (of the year 2004) are taken into account,  the
eventual conclusion of the High Court cannot be faulted.

17.   For the aforesaid reasons,  we  do  not  consider  it  appropriate  to
entertain the SLPs any further. Both SLP (C) Nos. 19226 of 2013 &  20235  of
2013 are dismissed.



                                ..........................................J.
                                       [RANJAN GOGOI]



                                ..........................................J.
                                       [N.V. RAMANA]
NEW DELHI,
MARCH 25, 2015.

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