Mangat Rai and others vs The Punjab State and others

M.R. Sharma, J.—The petitioners are allottees under a housing scheme of cheap houses built on a plot of land which had been made over by the State Government to the Ludhiana Municipal Committee for public purposes. They were allotted these tenements in the year 1954. At that time a plan of the site was prepared wherein the land in dispute was shown as "low area to be filled". Contiguous to this area, is a road and a cross that some shops have been built by the side of the main road. In front of the "low area to be filled" there is the bus-stand. The Ludhiana Municipal Committee under the sanction accorded by the Deputy Commissioner allotted a piece of land measuring 120 ft. x 130 ft. out of the land in dispute to respondent No. 5 for setting up a petrol filling station. The petitioners claim that this "low area to be filled" was left over at the time when the housing colony was built, to be utilised by the inhabitants of the colony as an open space and that it was not open to the Municipal Committee to allot a piece of land out of it for the construction of a petrol filling station.

In the return filed on behalf of the Municipal Committee, it has been denied that the low area aforementioned was left for use of the inhabitants of the locality as an open space. It has also been mentioned therein that the setting up of a petrol filing station constituted the execution of a work of public utility.

The Learned Counsel for the petitioners has argued that the land in dispute had been allotted to the Municipal Committee for pub-lic purposes and as laid down in Daya Sawrup Nehra v. The State of Punjab ILR (1964) P&H. 150, the setting up of a petrol filling station could not be regarded as an act of public utility. In this case also the senior Town planner vide his letter dated 2. 3. 1973 Annexure ''E'' informed the District Magistrate, Ludhiana, that the site of the petrol filling station fell in the reserved public park of the Cheap Tenements Housing Scheme and Shopping Centre of 170 sites at Ludhiana and that a petrol pomp existed at a distance of 1180 ft. away from the site in dispute. Apparently, the Senior Town Planner was opposed to the allotment of site for a petrol pump. Mr Doabia informs me that the Deputy Commissioner did not agree with the views expressed by the Senior Town Planner when he sanctioned the allotment of the site for a petrol pump.

I need for emphasise that the vacant plot out of which a site is being allotted for the setting up of a petrol filling station lies in the locality in which house have been built for weaker sections of the society. In the nature of things, the houses allotted are comparatively smaller in size. It is, therefore, necessary that there should be enough "lungs space" in such areas. Even otherwise, while bringing under construction open areas in congested localities, municipal authorities are under an obligation to see that the constructions to be made do not unduly interfere with the public health amenties of the people residing in those localities. It has, of course, been conceded by the Learned Counsel for the petitioners that there was no written assurance given to the petitioners at the time of the allotment of the said cheap tenements that the low area shall be kept open so as to allow the people of the locality to use it for community purposes but the tenor of the written statement does indicate that at the time when the scheme was adopted this was the intention of the authorities. Whatever doubt? about this matter, they stand clarified by the letter dated 2.3.1973 Annexure ''E'' written by the Senior Town Planner to the District Magistrate, Ludhiana. Under the rules, the Deputy Commissioner is the competent authority to sanction the transfers of municipal sites. However, it is implied in rule I of Chapter II of the Punjab Municipal General Rules that while sanctioning the transfer the Deputy Commissioner would pay due regard to public health and ecological considerations. In my opinion this provision relates to transfers of ordinary land in contradistinction with land falling under a sheme perpared under the Punjab Town Improvement Act No. 4 of 1922. The residents of such a locality do have right to object to such a transfer and whenever they make such objections, they have to be decided in accordance with the principles of natural justice. Besides, a scheme framed under the Punjab Town Improvement Act. 1922. ("hereinafter called the Act), is given due publicity, objections against it are invited and last of all sanction of the Government has to be obtained before it is put into execution. When the open space kept in a scheme is desired to be brought under construction, that necessarily means the amendment of the scheme even through to a minor extent. Section 43 of the Act expressly lays down that a scheme prepared under the Act can be altered only with the prior approval of the State Government. In other words, any authority subordinate to the State Government including a Deputy Commissioner cannot legalise the alteration of a scheme. If the doing of a thing is prohibited, the same result cannot be achieved by adopting a circuitous route. If a petrol filling station was to be built on a vacant site, then this matter had to be given due publicity, objections invited and sanction of the State Government obtained before authorising the construction of the petrol filling station. The Deputy Commissioner could invoke his powers re-transfer of land after the sanction of the Government regarding the change in user of the site is obtained.

Mr. Doabia has submitted that since no assurance had been given to the petitioners at the time when they were alotted the cheap tenements, they have no locus standi to file the instant petition. 1 am not prepared to accent this contention. Whenever an area laying within the presincts of a municipal committee is developed for a housing society, due regard is paid or atleast is expected to be paid to the public health requirements of the people residing therein. If there are some influential people who can persuade the authorities concerned to execute any scheme, which has the effect of whithing down the effect of public health amenties being enjoyed by a section of the society, then it would be open to any voter of the municipal committee to approach a Court of law for appropriate relief.

The petition is accordingly allowed with costs counsel fees Rs. 300/-.