The petitioner, a Proprietorship firm through its proprietor has instituted a petition, against the orders passed by the Respondents against the application of the petitioner for the change of land use and hence have ordered for the removal of construction and made on the site, as it being illegal. The Punjab and Haryana High Court has held that that 'change of land' permit is within the jurisdiction of the Municipal Corporation.
Facts of the Matter
Petitioner is the owner of the Plot No. 681/1, Industrial area DLF-1, Hyderabad, surrounded by industries on all side. The property in question was earmarked as Community Hall and the same was purchased by the petitioner and as per the conditions of conveyance ,the property was put to be use as a Community Hall. Thereafter, the petitioner stated that the site in question was not put to use as a community Hall and thus applied and was granted a no objection certificate to use the plot as an industrial site. However, even after getting all the formalities completed, an activist intrudes and files a complaint in respect to the site in question and claims it to be used beyond the approved purpose. Thus the petitioner moves an application for getting the site plan passed before the office of Municipal Commissioner. However the same was declined by the Respondent No. 3 (Joint Commissioner, Municipal Corporation) The petitioner was put to notice regarding the illegal construction and was directed not to use the land except as mentioned in the Layout Plan. The petitioner was given seven days time to stop all the industrial activities and to remove all the violations.
Thus, in the background of the above stated facts the Petitioner institutes the petition .
Questions of Law Addressed by the Court
1. Whether the Municipal Corporation/ Director General Urban Local Bodies Haryana under the aegis of Haryana Municipal Corporation Act 1994 have the power and authority to grant the change of land use in respect of the sites in the Licensed Colonies developed under the 1975 Act / approved under the 1963 Act and stand transferred to Municipal Corporation?.
2. Whether the Municipal/ Director General Local Bodies Haryana have the role, function and power to administer the “ controlled areas” declared under the 1963 Act and over period of time are included within the Municipal limits of Municipal Corporation?
3. Whether the petitioner is entitled to permission of change of land use and can impugned orders of the respondents can be sustained in the eyes of Law?
Court's Reasoning
The first question in determination is answered in affirmative and for the provisions of Section 3 of the Haryana Municipal Corporation Act 1994 is taken into consideration. Haryana Municipal Corporation Act 1994 is self contained code and provides for the provisions regarding the administration of the “municipal area” which vests with the Corporation and provides for the powers, functions, procedures regarding the permission of the erection/ re erection of the Buildings and the use of the premises.
With respect to change of land use, Chapter XIV of the 1994 Act deals with the ‘ Building regulations’ and also encompasses with the scope of the words ‘to erect buildings’ as defined under Section 249 of the 1994 Act, to include the conversion a building which was never used as a factory and is converted into a factory as in the present case. Such change will thus read and dealt with as a case of erecting of a building. Moreover under section 265 of the 1994 Act in the same Chapter XIV dealing with the Buildings Regulations, the Commissioner is empowered to permit any person to change or to allow the change of use of land. Thus, it is established that the Municipal Corporation /Director General Urban Local Bodies Haryana, as the case may be, under the aegis of Haryana Municipal Corporation Act 1994 have the power and authority to grant the change of land use in respect of the sites in the Licensed Colonies developed under the 1975 Act. Other issue raised with respect to the power/ role/ function of the Municipal Corporation of the controlled areas declared under the 1963 Act. It was stated by the court that the Municipal Corporation is given an area of Jurisdiction and the Corporation within that area exercises all jurisdiction in respect of the administration of that area concerning the construction and use of land. Thus in totality Municipal Corporation / Director General of Local Bodies Haryana have the role, power, function to administer the controlled areas mentioned under the 1963 Act .
The last question of determination before the court was that the petitioner is entitled to allowance of change of land use of the Community Hall to industrial use given under the facts of the present case and the reasoning of the impugned order in denying the permission for the change of land can be sustained or not in the eyes of law? It was stated by the court that the application for change of land Use was declined without considering the fact that the "plot in question falls within the Municipal Limits and the colony has been completed way back and is under scope and powers of the Director General Local Urban Bodies, Haryana. The question regarding the competency to grant the change of land use under the 1994 Act and the power and role of the Municipal Corporation is already been decided in the previous raised issues."
The respondents have in fact, not delved into the bar in law based and founded upon the legal provisions under the 1975 Act , 1963 Act or the 1944 Act against the grant of change of land use in the present case. Moreover the instrumentality of the State i.e. HUDA has also permitted similar change of land use by invoking in the case of QRG Hospital case. The court further stated that if HUDA is empowered to consider the cases for change of land use by applying a rational approach then it is not understandable why the Department of State cannot apply the same principles. Thus, the court stated if the instrumentality of State and the Department of Town and Country of Planning of the State are granting benefits, then we see no reason why the respondents Authorities under the Municipal Corporation / or the Department of Municipal Corporation cannot exercise their powers in the favor of the petitioner.
Decision of the Court
Hence, the court asserted that in the view of attending facts and circumstances of the instant case and the findings in regard to the Questions No. (i, ii, iii), the bench was of the view that the impugned orders passed by the authorities is without any application of mind and therefore liable to be quashed.
Case Details
Before: Punjab and Haryana High Court
Bench: Hon'ble Mr. Justice Jaswant Singh and Hon'ble Mr. Justice Sant Praakash Singh
Parties: M/s Krishna Industries v. State of Haryana& Ors.
Case No.: CPW NO. 29604 OF 2017
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