CWP No.

16602 of 2010

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IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH CWP No. 16602 of 2010 Date of Decision: December 09, 2011 Tirlochan Singh and another Versus State of Punjab and others ..Respondents Petitioners

CORAM: HON'BLE MR. JUSTICE M.M. KUMAR HON'BLE MR. JUSTICE RAJIV NARAIN RAINA Present: Mr. Gaurav Singla, Advocate for Mr. Sanjiv Gupta, Advocate for the petitioners. Mr. Suvir Sehgal, Addl. A.G., Punjab for respondent Nos. 1 and 2. Mr. Sunil K. Sahore, Advocate for respondent No.3. Mr. B.S. Jolly, Advocate for respondent No. 5 to 7. Mr. Amit Rishi, Advocate for Mr. G.S. Anand, Advocate for respondent Nos. 9 and 10. 1. 2. To be referred to the Reporters or not? Whether the judgment should be reported in the Digest?

M.M. KUMAR, J. 1. The petitioners have approached this Court with a

grievance that certain individuals have encroached the State High Way-II and directions be issued to remove the encroachment on 30 meter road as the construction has been raised in violation of provisions of Punjab Regional and Town Planning and Development

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Act, 1995 (for brevity '1995 Act') as well as provisions of Punjab Schedule Roads and Controlled Areas Restriction of Unregulated Development Act, 1963 (for brevity '1963 Act'). The grievance has also been made that directions issued by this Court on 25.03.2009 in CWP No. 4559 of 2007 have not been complied with. In the

aforesaid order, this Court has issued directions to take time bound action against the offending and unauthorized constructions. In

pursuance of the directions issued by this Court, the Government has also passed an order as a follow up action (P-1). The petitioners

have specifically alleged that Vikramjeet Singh and Bhupinder Singhrespondent Nos. 11 and 12 sons of Narinder Singh Sohal raised construction along with other persons which has resulted in issuance of notice under Section 143(1) of 1995 Act and the notices were withdrawn. It is alleged that even the release of the electricity

connection was without any basis as the construction was apparently unauthorised. 2. In response to the notice of motion having been issued,

official respondent Nos. 1, 3, 4, 8 and 13 have filed their reply by way of affidavit of Sh. Adesh Gupta, Executive Engineer. It has been conceded that a show cause notice dated 15.06.2010 was issued to respondent Nos. 11 and 12. Those respondents submitted a detailed reply along with evidence that the building in question was constructed much prior to the enforcement the notification issued under the provisions of 1995 Act. On the basis of the records

maintained by the official respondents, it was proved that the

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building was constructed prior to the notification issued under the Punjab Schedule Road and accordingly, the proceedings were dropped and the show cause notice was withdrawn on 20.09.2010 (R-8/1). It is pertinent to mention that the notification in pursuance of Section 2(zi) of 1995 Act was issued on 23.12.2004 (R-8/2). It has also been asserted that the official respondents conducted a Video-graphing of the road and show cause notice was issued to everyone of those who were to construct the building after the notification issued on 23.12.2004. There was no show cause issued to respondent Nos. 11 and 12 in the year 2005 because the building in question was already in existence. On the complaint made by the petitioners, a show cause was, however, issued in the year 2010, which was dropped. 3. In a separate written statement filed by respondent No.3

i.e. National Highways Authority of India, the stand taken is that the State Highways are maintained by Public Works Department (B&R), State of Punjab and not by respondent No.3, therefore, no relief has been sought by the petitioners against the National Highways Authority of India-respondent No.3. 4. Private respondent Nos. 11 and 12 have also filed their

reply. The stand taken by officials respondents that the show cause notice issued to them was withdrawn on 20.09.2010 (R-1), has been reiterated along with the stand that the first time a notification dated 23.12.2004 was issued declaring Ludhiana-Malerkotla-Sangrur-

Patran-Munak road as a Punjab Schedule Road and thereby it

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became State Highway. It has also been stated that before issuance of notification on 23.12.2004, official respondent No.8 conducted a Videography of the road and show cause notice were issued to all of them who were keen to raise the construction of the building after notification dated 23.12.2004. On account of the fact that the

building of respondent Nos. 11 and 12 was already in existence, no show cause notice was issued to them. Therefore, it is stated that there is no violation of provisions of law and the writ petition is wholly misuse of the process of the Court. 5. In another short affidavit of Sh. Adesh Gupta filed on

behalf of respondent Nos. 1, 3, 4, 8 and 13, it has been stated that on the directions issued by this Court, the Executive Engineer had called the petitioners to support their complaint dated 10.06.2010 and had also asked respondent Nos. 11 and 12 to be present. A copy of the letter dated 03.11.2011 has been placed on record

(R-8/3). Despite service, petitioners did not appear to substantiate the allegation concerning the violation of the provisions of law by respondent Nos. 11 and 12. However, respondent Nos. 11 and 12

appeared and apprised the Executive Engineer that they were being harassed by the petitioners on account of their personal grudge. They also produced true copy of the notification dated 23.12.2004 (R-8/4). Thereafter, Sub Divisional Engineer, personally visited the spot and verified the facts. He visited the village Sarpanch and other villagers and recorded their statements. He also inspected the building and found that as per record submitted by respondent Nos.

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11 and 12, the building was very old. been placed on record (R-8/6).

The statements have also

It was after verifying the official

record as well as taking into consideration the statements of the Sarpanch and other villagers that the Executive Engineer reached the conclusion that the building was in existence much prior to the notification of 23.12.2004. 6. 7. We have heard learned counsel for the parties. Two facts which emerge from the record are that there is The

no construction raised on any public land or on the road.

construction is old and it was in existence prior to issuance of notification dated 23.12.2004 declaring the Ludhiana-MalerkotlaSangrur-Patran-Munak Road as a Scheduled road under Section 2 (zi) of 1995 Act. The net effect of Section 143 of 1995 Act was that no person was entitled to erect or re-erect any building etc. within 30 meters on either side of the road which is declared as schedule road. Therefore, the present petition is frivolous and vexatious piece of litigation and is driven by extraneous consideration. Accordingly, the same is dismissed with costs of ` 50,000/- which shall be paid by the petitioner to respondent Nos. 11 and 12 within two months.

(M.M. KUMAR) JUDGE (RAJIV NARAIN RAINA) JUDGE December 09, 2011
Atul