M/S Geetanjali Construction Vs State of Chhattisgarh

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2024:CGHC:46428-DB

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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WA No. 69 of 2021

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M/s Geetanjali Construction (Colonizer, Developer And Builder) A Partnership Firm Registered Under Indian Partnership Act, 1956 Through Its Partner Shri Sant Ram Sahu, S/o Shri Mutan Ram Sahu, Aged 65 Years, R/o Geetanjali House, Nehru Nagar, Ameri Road, Bilaspur Chhattisgarh, District : Bilaspur, Chhattisgarh

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---- Appellant

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versus

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1 - State Of Chhattisgarh Through Secretary, Urban Administration And Development Department, Mahanadi Bhawan, Mantralaya, Nawa Raipur, Atal Nagar, District Raipur (Chhattisgarh), District : Raipur, Chhattisgarh

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2 - Municipal Corporation Bilaspur, Through Commissioner, Municipal Corporation, Bilaspur Chhattisgarh.

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3 - Commissioner, Municipal Corporation, Bilaspur Chhattisgarh

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4 - Development Officer, Municipal Corporation, Bilaspur Chhattisgarh

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5 - Gram Panchayat Mangla Through Its Secretary, Gram Panchayat, Mangla, Tahsil And District Bilaspur (Chhattisgarh)

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---- Respondents

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WA No. 76 of 2021

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M/s Geetanjali Construction (Colonizer, Developer And Builder) A Partnership Firm Registered Under India Partnership Act, 1956 Through Its Partner Shri Sant Ram Sahu, S/o Shri Mutan Ram Sahu, Aged 65 Years, R/o Geetanjali House, Nehru Nagar, Ameri Road, Bilaspur, Chhattisgarh., District : Bilaspur, Chhattisgarh

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---- Appellant

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Versus

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1 - State Of Chhattisgarh Through Secretary, Urban Administration And Development Department, Mahanadi Bhawan, Mantralaya, Nawa Raipur, Atal Nagar, District- Raipur, Chhattisgarh., District : Raipur, Chhattisgarh

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2 - Municipal Corporation Bilaspur, Through Its Commissioner, Municipal Corporation, Bilaspur, Chhattisgarh.

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3 - Commissioner Municipal Corporation, Bilaspur, Chhattisgarh.

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4 - Development Officer Municipal Corporation, Bilaspur, Chhattisgarh.

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5 - Sub-Divisional Officer(Revenue) Kota, District- Bilaspur, Chhattisgarh.

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6 - Gram Panchayat Uslapur Through Its Secretary, Gram Panchayat Uslapur, Tahsil And District- Bilaspur, Chhattisgarh.

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---- Respondents

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For Appellant	: Mr. Malay Shrivastava, Advocate
For Respondents	: Mr. Abhyuday Singh, Advocate
For Respondent /	: Mr. Y.S. Thakur, Add. A.G.
State

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Hon'ble Shri Ramesh Sinha, Chief Justice

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Hon'ble Shri Amitendra Kishore Prasad , Judge

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Judgment on Board

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Per Ramesh Sinha, Chief Justice

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26.11.2024

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Heard Mr. Malay Shrivastava, learned counsel for the appellant. Also heard Mr. Y.S. Thakur, learned Additional Advocate General for respondents / State as well as Mr. Abhyuday Singh, learned counsel for private respondents.

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These writ appeals are presented assailing the order dated 08.05.2020, passed by the learned Single Judge in WPC No. 3114/2008 and WPC No. 3115/2008 (M/s Geetanjali Construction vs. State of Chhattisgarh and others) whereby, the writ petitions filed by writ petitioner / appellant herein was dismissed by the learned Single Judge.

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Brief facts of cases are that the writ petitioner is a partnership firm and it was given permission to develop a colony styled as Geetanjali City, Face-ll, in Khasra No. 1452/1, 1452/5, 1452/6, 1452/7, 13453/1, 1453/2, 1456/5, 1456/6, 1455/2, 1458/4, 1459/1 and 1459/2 total area 4.90 acres situated at village Mangla, District Bilaspur and Colony styled as Geetanjali City, Face-II, in Khasra No. 193, 194/1, 195, 196/1, 199/1, 216/1, 217, 218/1 and 218/2 total area 5.68 acres situated at village Uslapur, District

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Bilaspur under the provisions of Chhattisgarh Nagar Palika (Registration of Colonizers, Terms and Conditions) Rules 1998 (for short, "the Rules 1998"). As per provisions of Rule 10 of the said Rules, a colonizer is required to reserve 15% plots of the land of the colony for persons belonging to Economically Weaker Section of the society. As per said schedule, if the land remained vacant for two years from the date of reserving, it may be released in favour of colonizer on deposit of the shelter fee at the rate prescribed. Writ petitioner firm is doing the work of developing the residential colonies and for this purpose, the writ petitioner is registered with respondent No.2 under the provisions of Rule 3 (4) of the Rules 1998. Respondent No.3 refused to release the land of the writ petitioner, therefore, it is violative of Rule 10 of the Rules 1998 Colonizer licence was granted to the writ petitioner on 27-2-2004 and 15% of the land was reserved for Economically Weaker section. The said land remained vacant for two years, therefore, the writ petitioner is entitled for release of the land in question. Being aggrieved by the same, the writ petitioner / appellant herein preferred WPC No. 3114/2008 and 3115/2008 and the same was dismissed by the learned Single Judge vide order dated 08.05.2020. Being aggrieved by the same, the appellant has preferred this present appeal.

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Learned counsel for the appellant submits that the order passed by the Hon'ble Single Judge is arbitrary, illegal and contrary to the law applicable to the facts and circumstances of the present

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case. Further, while passing the order by the learned Single Judge, the learned Single Judge has not adhere to the provision of Rule 10 of the Rules, 1998, wherein, the Rule 10 was substituted as-

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“ 10. In residential Colonies, availability of Plots/ Houses for the Weaker Section of the Society-

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1. In every residential colony in the urban area, out of the area of the developed plots by the colonizer, fully developed plots equal to 15% of the size of 32 to 40 square meter area. Shall have to be reserved for persons belonging to economically weaker section.

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2. Such colonizer who wishes to offer the constructed residential house instead of developed plot in his residential colony for the persons of economically weaker sections under sub rule (1) then they may make available the houses of the size of 20 to 24 square meter constructed on an area equal to 1/4th of the total area of the developed plot.

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3. In respect of the land in which the Urban Land (Celling and Regulation) Act, 1976 is applicable, the colonizer shall have to reserve developed plot of the size of 32 to 40 square meter area on at least 25% of the total developed area for the persons belonging to economically weaker section in accordance with the exemptions from the state govt. for the land under section 20 of the Urban Land (Celling and Regulation) Act, 1976.

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4. Such colonizer, who do not wish to develop plots

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or construct houses for the economically weaker section in his colony having the area of 0.4 hectare or more under sub rule (1) or (2) shall have to deposit the following shelter fee in the shelter fund for the total area of the colony, the rate at which may be revised by the state government from time to time. Provided that in case of the proposed colony having an area of 0.4 hectare, the colonizer shall have to pay shelter fee compulsory at the prescribe rate-

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i. Town having population Upto 3 lakhs - Rs. 40 per Sq. m

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ii. Town having population more than 3 lakhs but Upto 5 lakhs - Rs 60 per sq. m

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iii. Town having population more than 5 lakhs -- Rs 100 per Sq.m

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5. Cost of developed plots or constructed house shall be determined by a committing consisting of the following members-

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i. Collector or his representative not below the rank of Additional Collector- Chairman

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ii. Superintending Engineer/ Executive Engineer/ Works Department- Member.

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iii. Dy. Commissioner/Executive Engineer / M.P. Housing Board Member.

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iv. Commissioner, Municipal Corporation/ Chief Municipal Officer- Member.

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v. Jt. Director/ Dy. Director / Asstt. Director, Town and Country Planning- member.

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vi. Project officer, District urban Development Agency- Member- Secretary.

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6. The list allocated Plots/Houses to the persons of economically weaker sections by the colonizer shall be scrutinised by the collector, and if any violation of the prescribed criteria in allotment is noticed the allotment may be cancelled by the collector. But before cancellation of allotment, opportunity of being heard shall be given to allotee and colonizer. If on the scrutiny of allotment it is noticed by the collector that allotment to ineligible persons have been made deliberately the registration of colonizer shall be cancelled.

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7. The collector shall collect shelter fee for the whole of the planning area and municipal area, which shall be deposited in the shelter fund by opening a separate account which shall be under in accordance with the instruction issued by the state Government from time to time.

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(i) Collector - Chairman

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(ii) Chief Executive officer, development Authority - Member

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(iii) Commissioner, Municipal Corporation/ Chief Municipal Officer, Municipality/ Nagar panchayat - Member

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(iv) Project Officer, District Urban Development Agency Member Secretary

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(v) Jt. Director/ Dy. Director/ Assistant Director, town and Country Planning - Member

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(vi) Dy. Commissioner/ Executive engineer, M.P. Housing Board Member8. After depositing the shelter fee by the colonizer in the Joint Account of the collector and the Project officer District Development Agency The competent Authority shall grant permission for the development. The amount of shelter fee deposited with the collector may be made available without interest as loan to Local bodies/ Madhya Pradesh Housing Bard/ Madhya Pradesh slum Clearance Board/ Development Authority. The said amount may be utilised as margin money to obtain loan from financial institutions for the construction of houses for economically weaker section. This amount may be utilised for providing the basic services like sewerage, drinking water, public toilets etc, in the old jhuggi basti area.

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9. The colonizer may also exercise the aforesaid alternative in relation to the layouts approved earlier, by the Town and country Planning Department, but it shall be essential to give such option within six months from the date of publication of these rules in the "Madhya Pradesh Gazette".

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10. At the time of submission of the application prescribed in rule 8 the colonizer shall have to clarify that out of the options shown in sub- rule (1) or (2) or (4) which option he would like to select and shall also submit the details of the options as selected by him along with the application. These options shall be got technically examined by the Competent authority and at time of sanction of the compensation of colony he shall mention about the option also.”

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He also submits that the impugned order is per se illegal as no

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reasons have been assigned by the learned Single Judge while passing the impugned order. The rules having the force of the law cannot be superseded by the administrative instructions. Later, since the respondent No.3 has failed to allot the land reserved for Economically Weaker Section within two years from the date of reserve, therefore, the appellant is entitled for redemption of its plot. The action of the respondents is violative of proviso to Rule 10 (1) of the Rules, 1998.

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Learned counsel for respondents opposes the submissions made by the learned counsel for the appellant in his appeals and submits that the learned Single Judge after considering all the aspects of the matter has rightly dismissed the writ petitions filed by the writ petitioner / appellant herein, in which no interference is called for.

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We have heard learned counsel for the parties and perused the impugned order and other documents appended with writ appeals.

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From perusal of the impugned order in WA No. 69/2021, it transpires that the learned Single Judge has dismissed the writ petition (c) No. 3114/2008 filed by the writ petitioner / appellant herein observing as follows:-

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“5. The only question for consideration of this court is whether the petitioner is entitled for returning of

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land.

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6. The case of the petitioner is regarding land bearing Khasra Nos. 1452/1, 1452/5 1452/6 1452/7 13453/1, 1453/2, 1456/5 1456/6 1455/2 1458/4 1459/1 and 1459/2 total area 4.90 acres situated at village Mangla, District Bilaspur. Case of the petitioner falls within ambit of Section 292-A (3) of the CG Municipal Corporation Act, 1956 and Section 10 of the CG Municipal Corporation (Registration of Colonizer, Terms and Conditions) Rules 1998. Rule 10 of the Rules 1998 makes provisions for availing of plots/houses for Economically Weaker Section in the residential colony. Rules were amended by Government of Chhattisgarh on 14-7-2006 and again on by notification dated 26-3-2007. Fresh amendment was incorporated on 25-7-2008 whereas other Rules were substituted in Rule 10 with a new set of Rules. The case of the petitioner would be governed by unamended Rules because he was granted licence in the year 1996 which was subsequently renewed in the year 2000. In unamended rules, there is no such provision of returning of land to the colonizer which is reserved for Economically Weaker Section. The amended Rules which came into force in the year 2006 and 2007 have no bearing with the case of the petitioner. On the date of issuance of colonizer licence and on the date of renewal of licence, the statute did not provide for release of land which is reserved for Economically Weaker Section. The land is reserved for Economically Weaker Section, therefore, it cannot be returned to the colonizer and the respondent No.3 is right in

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issuing possession warrant and taking possession of land in question. The petitioner is only entitled for compensation for the land in question as per valuation on the date of handing over the possession of land. It is not a case where the court can exercise its writ jurisdiction in such matters which have trappings of policy.

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7. In view of the above, no case for exercise of jurisdiction under Article 226 of the Constitution of India is made out. Accordingly, the writ petition is liable to be and is hereby dismissed”

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Further, from perusal of the impugned order in WA No. 76/2021, it transpires that the learned Single Judge has dismissed the writ petition (c) No. 3115/2008 filed by the writ petitioner / appellant herein observing as follows:-

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“5. The only question for consideration of this court is whether the petitioner is entitled for returning of land.

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6. The case of the petitioner is regarding land bearing Khasra No. 193, 194/1, 195, 196/1, 199/1, 216/1, 217, 218/1 and 218/2 total area 5.68 acres situated at village Uslapur, District Bilaspur. Case of the petitioner falls within ambit of Section 292-A (3) of the CG Municipal Corporation Act, 1956 and Section 10 of the CG Municipal Corporation (Registration of Colonizer, Terms and Conditions) Rules 1998. Rule 10 of the Rules 1998 makes provisions for availing of plots/houses for Economically Weaker Section in the residential colony. Rules were amended by Government of Chhattisgarh on 14-7- 2006 and again on by

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notification dated 26-3-2007. Fresh amendment was incorporated on 25-7-2008 whereas other Rules were substituted in Rule 10 with a new set of Rules. The case of the petitioner would be governed by unamended Rules because he was granted licence in the year 1996 which was subsequently renewed in the year 2000. In unamended rules, there is no such provision of returning of land to the colonizer which is reserved for Economically Weaker Section. The amended Rules which came into force in the year 2006 and 2007 have no bearing with the case of the petitioner. On the date of issuance of colonizer licence and on the date of renewal of licence, the statute did not provide for release of land which is reserved for Economically Weaker Section. The land is reserved for Economically Weaker Section, therefore, it cannot be returned to the colonizer and the respondent No.3 is right in issuing possession warrant and taking possession of land in question. The petitioner is only entitled for compensation for the land in question as per valuation on the date of handing over the possession of land. It is not a case where the court cannot exercise its writ jurisdiction in such matters which have trappings of policy.

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7. In view of the above, no case for exercise of jurisdiction under Article 226 of the Constitution of India is made out. Accordingly, the writ petition is liable to be and is hereby dismissed.”

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Having gone through the submissions advanced by learned counsel for the parties and having gone through the finding recorded by the learned Single Judge while dismissing the writ

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petitions filed by the writ petitioner / appellant herein, we do not perceive any error in the impugned order passed by the learned Single Judge as would warrant any indulgence by this Court in the present intra court appeal.

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Accordingly, the writ appeal being devoid of merit is liable to be and is hereby dismissed . No cost(s).

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Sd/- Sd/-

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(Amitendra Kishore Prasad) (Ramesh Sinha ) Judge Chief Justice

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Manpreet

M/S Geetanjali Construction v. State of Chhattisgarh

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M/S Geetanjali Construction v. State of Chhattisgarh

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