VIRENDER GAUR Vs. STATE OF HARYANA

JUDGEMENT

(1.) Leave granted.

(2.) The undisputed facts are that the Municipal Committee, Thanesar, District Kurukshetra in Haryana State, framed Town Planning Scheme No. 5. The government of Haryana had sanctioned that Scheme on 30/10/1975. It would appear that one of the appellants, namely, the first appellant was the owner of a parcel of land in the Scheme. She surrendered 25% of her land to the Municipality which was a condition for sanction to construct her building. By operation of Section 61 of the Haryana Municipal Act, 1973 (for short 'the Act') , the land stood vested in the Municipality. The construction of the buildings had to be in accordance with Section 203 while Section 205 prohibited construction in contravention of the Scheme. Admittedly, in the Scheme, the land, the subject-matter of the lease for 99 years made in favour of the Punjab Samaj Sabha (for short 'the PSS') , was earmarked for open spaces. The government, on 3/4/1991, sanctioned for the allotment of the land to PSS on payment of the price at the rates specified therein. It would also appear that PSS had paid the price on 18/4/1991 and had obtained sanction on 18/12/1992 for construction of Dharmashala. It is the case of the appellants that PSS started construction in the month of July 1992 and immediately on becoming aware of it, they filed the writ petition on 18/7/1993 and sought for ad interim injunction. But the High court declined to grant an injunction. By the order dated 7/1/1994, the High court dismissed the Writ Petition No. 9019 of 1993. Thus this appeal by special leave.

(3.) It is contended by Shri Jitendra Sharma, the learned Senior Counsel for the appellants, that the purpose of the Scheme was to reserve the land in question for open spaces for the better sanitation, environment and the recreational purposes of the residents in the locality. The government had no power to lease out the land to PSS. Though the construction of Dharmashala may be a public purpose, the government cannot give any direction to the Municipality to permit the use of land, defeating the Scheme which provided for keeping open land, namely, to deprive the residents in the locality of the public amenity of using the land as an open land for environmental and recreational purposes. Hence the government have acted in excess of its power under Section 250 of the Act. It was contended by Shri D. V. Sehgal, learned Senior Counsel for the Municipality that the government have formulated general guidelines as to the manner in which the land belonging to the Municipality could be put to public purpose and one of the public purposes is grant of the lease for the charitable purposes. The PSS intends to construct Dharmashala for charitable purpose, the assignment of the land by lease of 99 years is in accordance with the provisions of the Act. The High court, therefore, was right in dismissing the writ petition. Shri V. C. Mahajan, learned Senior Counsel for the PSS contended that the government's power to assign the land for any public purposes envisaged in their policy to keep open land in the Scheme is not a permanent one. Since more than two decades had elapsed, after the Scheme had come into force, and the open land was not put to any public use and it being an open land vested in the Municipality, and the government had power under Section 250 to give directions to use the land for a charitable purpose. Therefore, the action of the government and sequel sanction was perfectly in accordance with law. Even otherwise, it is not a fit case for our interference since the PSS has already expended more than seven lakhs in constructing the building. Therefore, any order passed by this court may be made prospective.