Man Chand Parmar vs State of Punjab

Harmohinder Kaur Sandhu, J.

The present petition has been filed under Article 2261227 of the Constitution of India for a Writ of Prohibition restraining the respondents from demolishing the Filling Station along with underground petrol and diesel tanks, structure and other installations situated at Zirakpur on AmbalaKalka, AmbalaRajpura road, in the revenue estate of village Lohgarh, Tehsil Rajpura, District Patiala.

The facts giving rise to the filing of this petition are that the petitioner obtained a retail dealership of petroleum products including diesel and petrol from M/s Esso Standard Eastern Inc. (hereinafter called the Company), a company in the year 1969. This Company has now been taken over by the Government of India and is known as M/s Hindustan Petroleum Corporation Limited. The petitioner purchased land for installation of petrol pump from one Nasib Singh vide a registered sale deed dated 8th April, 1970. Later on he purchased the adjoining land from one Baldev Singh vide another registered sale deed dated 15th July, 1970. Possession of the land was taken earlier when agreement to sell was executed. The Company obtained a no objection certificate for installation of the Filling Station from the Deputy Commissioner/District Magistrate, Patiala, copy of which was Annexure P.1. While granting "No objection Certificate" the Deputy Commissioner, Patiala imposed it condition to the effect that the building plans of the proposed petrol pump and other details of the inlet and outlet to the main road were to be got approved from the State Town Planner, Punjab, Chandigarh, before the construction work started. The company on behalf of the petitioner applied for necessary approval of the proposed construction of the petitioner''s Filling Station and approval was accorded by the Town and Country Planner, Punjab, Chandigarh as well as Deputy Commissioner, Patiala vide his memorandum No. PLA/1683 dated 14th October, 1969, copy of which was Annexure P.2. The Company also obtained a licence on behalf of the petitioner from the Controller of Explosives, Agra, under the Petroleum Act, 1934 which was renewed from time to time. The petitioner also got on lease Government land abutting the road for ingress and outgress to the Filling Station vide Annexure PA Thereafter building was constructed and Filling Station was installed with filling apparatus in the year 196970 and since then the petitioner was carrying on his business as a retail dealer of petroleum products.

On 17.1.1983 at about. 4 p.m. five officials of Punjab Housing and Urban Development Department came to the Filling Station of the petitioner'' and asked him to remove his valuable articles from the site of the Filling Station within two days as the construction of the Filling Station was against law. They further threatened to demolish the Filling Station forcibly in case the petitioner failed to comply with their directions. The petitioner made enquiries from the Directorate, Housing and Urban Development Department and was told that construction and installation of Filling Station was against the provisions of Section 5 of the Punjab New Capital (Periphery) Control Act, 1952 (the Act for short) which provided that no person shall erect or reerect any building or make or. extend an excavation or lay out any means of access to a road in the controlled area save in accordance with the plans and restrictions and with the previous permission of the Deputy Commissioner in writing. The petitioner claimed that permission of the Deputy Commissioner for construction and installation of the Filling Station was duly obtained vide Annexure PA and condition. of getting building plans approved from State Town Planner, Punjab was complied with before the construction was raised. The construction could in no way be considered in violation of the Act and threat of demolition of petrol pump was illegal, arbitrary and mala fide.

The petition was resisted by the respondents and in the return filed by the respondents, a preliminary objection was raised that the matter similar to that involved in the present writ petition was subject matter of writ petition No. 415 of 1977 and 26 other writ petitions which were dismissed on 18.2.1980 and further L.P.A. 143 of 1980 and 18 others in these writ petitions were also dismissed on 15.5.1980 by this Court and Special Leave Petitions were also dismissed by the Hon''ble Supreme Court on 30.9.1981. On merits it was contended that "No Objection Certificate" given by the District Magistrate and approval of plan given by the Town and Country Planner did not absolve the petitioner from the obligation cast upon him under the Act. The demolition order was passed by the competent authority under due process of law. A show cause notice was issued to the petitioner and the reply submitted by him was considered and a notice for personal hearing was issued. The contention of the petitioner that he had no notice, was baseless and amounted to concealment of facts.

I have heard the counsel for the parties.

The contention of the respondents was that construction of the building and installation of Filling Station by the petitioner was in contravention of the provisions of the Punjab New Capital (Periphery) Control Act, 1952. Section 5 of the Act reads as under :

"5. Restrictions in a Controlled Area

Except as provided hereinafter, no person shall erect or re erect any building or make or extend any excavation, or lay out any means of access to a road, in the Controlled Area save in accordance with the plans and restrictions and with the previous permission of the Deputy Commissioner in writing."

A perusal of the above provision of the Act makes it evident that no person could erect or reerect any building in the controlled area except in accordance with plans and previous permission of the Deputy Commissioner in writing. It was contended on behalf of the petitioner that the petitioner constructed the petrol pump after obtaining permission from the Deputy Commissioner. Reference was made to Annexure P.1 whereby "No Objection Certificate" was issued by District Magistrate, Patiala. The petitioner was asked to get the plans of the proposed petrol pump and other details of the inlet and outlet to the main road approved from the State Town Planner, Punjab, Chandigarh before starting the construction work. Annexure P.2 shows that after necessary approval was given by the Town and Country Planner, the same was conveyed by the Deputy Commissioner, Patiala to the Sales Supervisor of the Company.

The main contention of the learned counsel for the respondents was that both Annexures PA and P.2 were signed by District Magistrate, Patiala and not by Deputy Commissioner, Patiala. Annexure P.2 was addressed by the District Magistrate, Patiala to Sales Supervisor of the Company and thus proper approval was not accorded. This contention of the learned counsel is, however, without merit,. The Deputy Commissioner and District Magistrate, in all districts is one and the same officer acting under both capacities No Objection Certificate for construction of Filling Station granted by the Deputy Commissioner will not become illegal or non est simply because he used his designation of District Magistrate instead of Deputy Commissioner while granting the approval when the certificate is issued by the competent authority under the Act. A wrong label cannot vitiate an order which is otherwise within the power of the authority. In case The Vice Chancellor, Jammu University and another v. Dushiant Kumar Rampal, A.I.R. 1977 Supreme Court, Page 1146, it was held as under :

"When an authority makes an order which is otherwise within its competence it cannot fail merely because it purports to be made under a wrong provision of law, if it can be shown to be within its powers under any other provision: a wrong label cannot vitiate an order which is otherwise within the powers of the authority to make."

In the instant case Annexure P.1 was signed by District Magistrate, Patiala, but Annexure P.2 was signed on behalf of Deputy Commissioner, Patiala. The same officer was exercising the powers of Deputy Commissioner as well as District Magistrate and if instead of writing Deputy Commissioner it was written District Magistrate, Patiala while granting "No Objection Certificate" that will not render the approval as illegal. Filling Station was thus constructed by the petitioner after complying with the provisions of the Act. It was installed more than 22 years ago and it is not the case of the respondents that the building is constructed against any zonal planning of the area. It will, therefore, be inequitable to demolish the building on technical ground that No Objection certificate was issued by the Deputy Commissioner under wrong designation as District Magistrate.

So far as preliminary objection raised by the respondent is concerned, the writ petitions mentioned in para No. 1 of the written statement were dismissed as the buildings were constructed without getting any permission from the Deputy Commissioner and to some of the petitioners permission was specifically denied. In the present case, building was constructed after getting permission and after getting the plans approved and the decision in these petitions had no applicability in the present case.

As a result, I allow this petition and issue a writ of prohibition restraining the respondents from demolishing the filling Station of the petitioner situated at Zirakpur on AmbalaRajpura Read in the revenue estate of village Lohgarh, Tehsil Rajpura, District Patiala. No order as to costs.