Indian Oil Corporation through Sh. A.P. Jain, Assistant Manager vs Municipality Thanesar, through its Administrator

D.V. Sehgal, J.

This judgment shall dispose of C.W.P. No. 5057 of 1988 and C.R. No. 1102 of 1988. The subjectmatter of dispute in both of them being the same and the questions of law involved being common, it is expedent to dispose them of together. Reference to the parties, facts and documents, unless otherwise specified, shall, however be made from C.W.P. No. 5057 of 1988.

When C.R. No. 1102 of 1988 was at the motion stage, an order was passed on 6.5.1988 by M.S. Liberhan, J. appointing Shri Rajan Gupta, Advocate as Local Commissioner to inspect the spot and submit his report within a week on the following points:

(i) Whether any wall has been constructed ?

(ii) Whether there is any interference in the working of the petrol pump.

The Local Commissioner submitted his report dated 11.5.1988. The Administrator, Municipality Thanesar (Kurukshetra), respondent therein, filed C.M. No. 2456CII of 1988 vide which certain objections were raised against the report of the Local Commissioner. Surinder Singh petitioner therein, on the other hand, filed C.M. No. 2460CII of 1988 vide which were appended therewith. Surinder Singh (hereinafter referred to as `the dealer'') is a lessee for 99 years of land comprising Khewat No. 1449, Khatoin No. 1678, Khasra No. 216/2/2 measuring 3 Kanals 3 Marlas situated in Dara Kalan within the limits of Municipal Committee, Thenesar, Kurukshetra, respondent, by virtue of a registered lease deed dated 4.10.1968. This fact is mentioned in his plaint Annexure R.10 filed in the Court of the learned Sub Judge, Kurukshetra, which has not been disputed by the respondent in its written statement Annexure R. 11 to the said suit. As is evident from the other documents placed on the record, this land is situated on the PehowaPipli road within the municipal limits and has substantial commercial importance. Surinder Singh entered into an agreement of dealership with the Indian Oil Corporation Ltd., petitioner, whereby the petitioner agreed to install retail outlet on the aforesaid site interalia, on the condition that he shall lease out to the petitioner the licensed premises together with all the structures thereon and the rental will be Rs. 250/ permonth for the first ten years and Rs. 300/ per month for the next ten years. The petitioner in turn was to recover from the dealer licence fee at the rate of Rs. 250/ plus Rs. 50/ per month for the first ten years and Rs. 300/ plus Rs. 50/ per month for the next ten years. These terms are mentioned in a letter dated 11.5.1976 addressed by the petitioner to the dealer which was placed before me during the course of arguments. A photostat copy of the agreement entered into between them was also produced for my perusal which, interalia contains the condition that the dealer shall not sell, assign, sublet, mortgage, charge or part with or otherwise transfer the premises or any part thereof, or his interests in the dealership. If for any reason the forfeiture of the site is imminent or the forfeiture shall be actually incurred, the dealer shall forthwith report the matter to the petitioner. The petitioner was to obtain in its name a storage licence for the Inspector of Explosives for the storage of petroleum products at the said premises and also other licences and permissions from the Central/State Government/local authorities. The dealer was to reimburse the petitioner any fees or charges paid on that account.

It is the case of the respondent that the Government of Haryana vide letter dated 11.8.1972 Annexure Rule 1 had decided that no one should be permitted to set up/open a petrol pump within the limits of the municipal committees. The dealer made an application Annexure Rule 2 to the then Minister for Local Government, Haryana, for allowing him to set up a petrol pump at the site in dispute. The Government vide letter dated 18.5.1976 Annexure Rule 3 asked the Deputy Commissioner, Kurukshetra, to give his comments and make recommendations on the application of the dealer and in particular on the following point:

(i) Whether the proposed petrol pump is not near any hospital ?

(ii) The consumption of petrol where petrol pump is proposed to be set up ? Whether the public will have any difficult or not on its account ?

(iii) The traffic on the said road.

(iv) Whether the proposed petrol pump should be set up outside the limits of the municipality or not to check environment vide pollution ?

After recipt of comments from him, the Government vide letter dated 16.7.1976, Annexure Rule 4, in relaxation of the decision Annexure R 1, granted permission to the dealer to set up a petrol pump at the site in dispute whitn the municipal limits of Thanesar through the petitioner.

The petitioner in its turn sent a letter of request dated 24.5.1976 to be District Magistrate, Kurukshetra, for granting permissionto the dealer to instal a petrol pump within the muncipal limits. The District Magistrate vide letter dated 23.9.1976 Annexure P1 granted `No Objection Certificate'' for installation of petrol/ diesal pump, which specified storage capacity, on imposition of certain conditions. The petitioner then applied to the Deputy Chief Controller of Explosives, North Circle, Agra, for grant of licence to store petroleum in the tank with pump outfit for fuelling motor conveyances at the silt in dispute. This licence Annexure P.3 was granted to it on 21.1.1977. It is the case of the petitioner that subsequent alterations and additions to the case of the petitioner that subesequenty alterations and additions to the tank and the petrol pump at the site in dipute were allowed by the Deputy Chief Controller of Explosives in exercise of his powers under the Petroleum Act, 1934 (fro short `the Petroleum Act''). At the time the dispute between the parties arose, there existed two diesel pumps and two petrol pumps at the site in dipute. Their position and location is given in the site plan Annexure P. 2.

The respondent framed a town planning scheme under Section 203 of the Haryana Municipal Act, 1973 (for shorty `the Act''), consisting interalia, of parts 1 and 13. The site in dispute was included in part 13 thereof. The scheme was sanctioned by the Government of Haryana vide its order dzted 13.11.1971 Annexure Rule 14, a copy of which was endorsed to the respondent on 3.1.1972. During the course of arguments the plan of the scheme comsisting of parts 1 and 13 was placed before me. It shows that part I of the scheme consists of area which is nearly ten times the area of part 13 of the Scheme. It further shows that excepty for small patches the entire are4a in part 1 jof the scheme was unbuilt. On the other hand, he major part of the area in part 13 of the scheme belongs to religious institutions and has been reserved as such in the scheme. The remainin part of it consists of house line etc. There is a temple and some existing buildings in this area. It coudl not be disputed before me that the entire area of part 1 of the scheme had, subsequent to its sandction by the State Government, been axquired for urban development by the Haryana Urban Development Authority (for shor `HUDA''), which later carved out plots, roads, parks, public convenciences etc. in the same and has established an urban estate there.

The order Annexure R 5 on the record shows that when objections to the aforesaid town planning scheme in the area were invited the dealer agreed to leave 25% of the site in dipute and also agreed to the tentative proposal of the town planning scheme. This is so recorded in Annexure R 5 under the signature of the Administrator of the respondent on 18.9.1970. Later, vide letter dated 26.7.1977 the respondent informed the dealer that it would demarcate the land of the petrol pump on that very date. He was required to remain present on the spot. The plan prepared after demarcation is Annexure R. 6/A which shows that on demarcation, keeping apart the land under the petrol pump of the dealer, the protion of the land shown in pink colour was determined as the land meant for the park which had been encroached upon by the dealer. It is not in dispute that this encroached land is in fact the land belonging to the dealer which he had agreed to set apart and give to the respondent being 25% of his unbuilt area. The dealer was then served with a notice Annexure R 7 under Section 180 of the Act by the respondent on 30.7.1977 pointng out that he had built a boundary wal of the eptrol pumpo extending to the land meant for the park. He was required to remove this encroachment. The dealer sent reply Annexure R 8 to the notice. Thereon, another notice dated 2.3.1978 Annexure R 9 under Section 235 of the Act was served on the dealer to remove the encroachment within six hours. At this, the dealer filed a suit for permanent injunction restraining the respondent from interfering with the ownership and peaceful possession of the land including the land shown in pink colour in the plan Annexure R. 6/A. The plaint of the suit is Annexure R 10 on the record. The respondent filed its written statement Annexure R 11. The learned Sub Judge who tried the suit then recorded the statement of the dealer on 28.5.1980, a copy of which is Annexure R 12. He stated therein that the disputed land is with him for 99 years lease and is in his possession. The respondent has declared it unbuilt area in its scheme. In his previous statement he had given 25% of this land for implementation of this scheme. It was this land which is the subjectmatter of the suit. He stated that when the respondent would implement the scheme he would hand over the possession of the disputed space to it and would not raise any objection whatsoever. Till then this land would be used by him and his customers and the respondent would not interfere. He further stated that without the approval of the respondent he would not raise any construction over this land because the same falls in 25% area which he had given for the scheme and it is ownered by the respondent but is being used by him. It was further stated that in case the scheme was modified the parties would be bound by it. On the strength of this statement of the dealer, the learned Sub Judge passed order dated 29.5.1980 Annexure P.5 whereby he granted a decree for permanent injunction in favour of the dealer and against the respondent restraining the latter from interfering with his possession on the disputed land till scheme No. 1 part 1 and 13 of the town is carried out. In case of implementation of the scheme the dealer was to hand over the vacant possession of the disputed land to the respondent without any objection and compensation. It was further made clear that the dealer shall not raise any construction without the permission of the respondent. The dealer was allowed to restore the floor at his own expense which had been dismantled and uprooted by the respondent.

The respondent once again threatened to dispossess the dealer from the site in dispute which drove him to the filing of another suit on 1.8.1985 in the Court of the Senior Sub Judge, Kurukshetra. A copy of the plaint is Annexure R/13. He also move an application for grant of an adinterim injunction restraining the respondent from dispossessing him from the site in dispute. This application was, however, dismissed by the learned Sub Judge Ist Class, Kurukshetra, before whom the suit is pending, vide his order dated 27.11.1987. The dealer filed an appeal which has also been dismissed by the learned Additional District Judge, Kurukshetra, vide order dated 5.5.1988. He then filed Civil Revision No. 1102 of 1988 in this Court.

It is not in dispute that after the learned Additional District Judge dismissed the appeal of the dealer on 5.5.1988, the respondent built the walls `AB'' and `AD'' shown in the rough site plan attached with the report of the Local Commissioner the same day and in this manner segregated from the main petrol pump the disputed part of the land, which according to the respondent had been earmarked for a park and the dealer had agreed to give the same to the respondent, being 25% of his unbuilt area. The report, no doubt, shows that within the aforesaid two walls there exists an installation of a diesel pump, which is still in working condition, but access of vehicles to it has been obstructed by the raising of the said walls.

The petitioner thus approached this Court through the present writ petition contending that the statement made by the dealer agreeing to hand over possession of 25% of his unbuilt area where installation of the diesel pump exists cannot be enforced by the respondent. It is, interalia, pleaded that the town planning scheme which was sanctioned by the Government on 30.11.1971 vide Annexure Rule. 14 lapsed on the expiry of five years in view of the provisions of Section 203(6) of the Act. The case of the respondent on the other hand, is that the petitioner has no locus standi to file the petition. It had simply come to the rescue of the dealer whose application for grant of temporary injunction had been dismissed by the Courts below and who has approached this Court through the revision petition. It is further contended that the dealer is bound by his statement and the undertaking wherein he admitted that respondent is the owner of 25% of the area in dispute and he shall hand over its possession for implementation of the scheme as and when required. The same cannot be rendered infructuous by the attempt of the petitioner through the present writ petition.

I have heard the learned counsel for the parties. I am of the considered view that this writ petition must succeed. The plea of the respondent that the petitioner has no locus standi to maintain the same is not tenable. The petrol and diesel pumps installed at the site in dispute belong to the petitioner. According of the agreement entered into between it and the dealer, the site is leased out to the petitioner and the dealer is its lessee. The obstruction caused by construction of the walls by the respondent segregating one of the diesel pumps installed at the site leads to affecting the marketing of its products there. No doubt, the dealer in the first instance did approach the Minister, Local Government, for allowing him to instal the petrol pump but it is clear that it was on the letter of request of the petitioner that the District Magistrate, Kurukshetra, who is the statutory authority, granted the No Objection Certificate'' for installation of petrol/diesel pump at the site in dispute. Not only that, the licence Annexure P.3 under the Petroleum Act was also issued at the instance of the petitioner and in its name by the Deputy Chief Controller of Explosives and subsequent alterations and additions were allowed by the same authority again at the instance of the petitioner vide letter dated 25.8.1984, annexure P. 4. The terms of agreement between the petitioner and the dealer to which reference has already been made above amply show that the business of marketing the products of the petitioner as also the installations at the site in dispute belong to the petitioner, who is operating the same through the dealer. I have no doubt in my mind that the petitioner has the locus standi to maintain the petition.

Subsection (4) of Section 2 of the Act defines `built area'' to mean that protion of a municipality of which the greater part has been developed as a business or residential area. Subsection (24) ibid, on the other hand, defines `unbuilt area'' as an area within the municipal limits which is declared to be such at a special meeting of the Committee by a resolution confirmed by the State Government. Section 203, interalia, lays down that a municipal committee may draw up a building scheme for built area and a town planning scheme for unbuilt area. As has been already noticed above, town planning scheme No. 1 and 13, including the site in dispute was assanctioned by the Government vide order dated 30.11.1971 Annexure R 14. However, nearly 90% of the area covered by this scheme was later on acquired by HUDA for establishing an urban estate. That area constitutes Part 1 of the scheme. Thus, the remaining area of nearly 10% for which Part 13 was framed was to be implemented by the respondent, but there is nothing on the record to show that this part of the scheme was ever implemented. In fact, on perusal of the plan of the town planning scheme it is clear that a major portion of the area comprising Part 13 of the scheme is reserved for religious purposes. It has a temp on it and other propeties pertaining to it. Some houses are also constructed in this area. Thus, it is difficult to say that independent of Part 1 of the scheme the area of which has since been acquired by HUD, the remaining area comprisiong Part 13 of the scheme could at all be called unbuilt area and could be declared as such by the respondent with the sanction of the Government. In my view, therefore, before the town planning scheme in respect of the area covered by Part 13 of the scheme could be implemented, it was necessary for the respondent and the Government to apply their mind to the question whether the said area remained unbuilt and a town planning scheme in respect thereof could be implemented. Nothing of the kind has been done.

Further, when the provisions of clause (c) of Section 203 (1) ibid are perused, it is made clear that it is only in the case of a town planning scheme for unbuilt area that an owner can be asked to transfer to the municipal committee without payment area not exceeding 25% of his land within the unbuilt area for public purposes. In case a building scheme is prepared for a built area, the provisions of clause (c) of Section 203 (1) do not apply. Therefore, before the respondent could legally force the petitioner or its dealer to part with 25% of the area in dispute, it was incumbent on it and the Government to determine whether the small area covered by Part 13 of the scheme could be treated as an unbuilt area.

The learned counsel for the petitioner vehemently contended that a period of five years having clapsed since the date of sanction of the scheme vide Annexure R 14 the scheme was no longer in force. I agree withthis submission. Subsection (6) of Section 203 ibid lays down, interalia, that after the scheme has been sanctioned the Committee shall complete it within a period of five years from the date of its sacntion. This means that after the period of five years is over the scheme would lapse and if at all it is necessary a fresh scheme shall have to be prepared keeping in view the changed position of the area. A, more or less, similar provision exists in Section 44A of the Punjab Town Improvement Act, 1922, as applicable to the State of Haryana, which lays down thus:

"Any scheme in respect of which a notification has been published under Section 42, shall be executed by the Trust within a period of five years from the date of such notification :

Provided that the Government may if it is satisfied that it is beyond the control of the Trust to execute the scheme within the said period, extend the same as it many deem fit."

This provision came up for consideration before a Full Bench of this Court in Nawal Singh v. The Administrator, Municipal Committee, Charkhi Dadri, District Bhiwani and others, 1984 P.L.R. 57 : 1984 R.R.R. 651, and it was held that the same inflexibility provides for a period of five years for the completion and accomplishment of the scheme from the date of its notification unless duly extended by the State Government under the proviso thereto. Subsection (6) of Section 203 of the Act does not contain a proviso smiler to the one in Section 44A of the Punjab Town Improvement Act, 1922. thus, if the scheme was not implemented and completed within a period of five years from its sanction, it lapsed. The respondent, therefore, could not force the petitioner or its dealer to part with 25% of the area in dispute nearly 15 years after the sanction of the scheme.

The learned Advocate General, Haryana, appearing for the respondent contended that the dealer himself had admitted but that the respondent is the owner of 25% of the area and could take possession for implementation of the scheme as and when it required. Therefore, he was estopped from raising the plea that he is the owner of the said area and could not be compelled to part with the same. The provisions of Section 192(1) (c) of the Punjab Municipal Act, 1911, which are analogous to Section 203(1) (c) of the Act were examined by a Division Bench of this Court in Om Parkash v. Municipality, Bhatinda, and another, A.I.R. 1960 Punjab and Haryana 254, and it was held that the said provision lays down for transfer of the land to the Committee for the limited purpose of its development but in law the possession and ownership of the land so transferred under the scheme still remains with the owners. The true interpretation of the clause would be that in all cases the land sought to be so transferred up to 25% shall be without payment of compensation and the land so transferred beyond 25% will be with compensation to all owners. It appears that the statement Annexure R 12 which was made by the dealer in the Court of Sub Judge Ist Class, Kurukshetra, on 28.5.1980 whereby he admitted the respondent to be its owner was in ignorance of the legal position. As held by he Supreme Court in Shri Krishnan v. The Kurukshetra University, Kurukshetra, U.J. (S.C.) 1976 Page 15, any admission made by a citizen in ignorance of his legal rights cannot bind the maker of the admission. Thus, the aforesaid statement of the dealer has no legal consequence and does not divest him of rights in the site in dispute nor does it vest its ownership in the respondent.

There is yet another aspect of the matter. It is the categoric stand of the petitioner that Part 13 of the scheme has not at all been implemented : No other owner of the land in that area has been asked to part with 25% of his unbuilt area. The respondent has brought no material whatsoever on the record to show that any of the owners of land in this area has parted with possession of 25% of the unbunility area. In the absence of any such material and in view of the unrebutted case of the petitioner that the scheme has neither and in view of the unrebutted case of the petitioner to dispossess the petitioner from the site on the ground that it constitutes 25% of the unbuilt area of the dealer and the same belongs to it.

In view of the above discussion, i allow the writ petition with costs and direct the respondent to remove the obstruction in the shape of Walls `AB'' and `AD'' shows in the rough site plan attached with the report of the Local Commissioner in C.R. No. 1102 of 1988 and restore the possession of the site enclosed by those walls to the petitioner and its delay so that they can carry on this business unhampered.

As a consequence C.R. No. 1102 of 1988 is also allowed but without any order as to costs. C. Ms. Nos. 2456CII and 2460CII of 1988 stands disposed of.

The costs of the writ petition are assessed at Rs. 1000/.