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2011 Supreme(P&H) 1583
2011 (4) PLR 401
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
K. KANNAN, J.
Sanjeev Aga, Managing Director - Petitioner
Versus
State of Haryana and others - Respondents
CWP No.9571 of 2009 (O&M)
Decided on: 25.08.2011
Mr. R.S. Cheema, Senior Advocate with Mr. K.S. Nalwa, Advocate, for the petitioner.
Ms. Kirti Singh, D.A.G., Haryana.
Mr. Naresh K. Joshi, C.G.C., for respondent No.4.
The central legal point established in the judgment is the inapplicability of the Punjab Land Preservation Act, 1900 to the petitioner's activities and the requirement of evidence to classify the property as forest land.
Headnote:
Telecom Tower - Property Lease - Punjab Land Preservation Act, 1900 (PLPA) - Sections 3, 4, 5 - The court discussed the provisions of PLPA and the notification of areas, the power to regulate, restrict or prohibit certain matters within notified areas, and the power to regulate, restrict or prohibit further matters within specified villages. The court also considered the Supreme Court's order regulating mining activities in the Aravalli hills and its applicability to the erection of a tower and a compound wall.
Fact of the Case:
The petitioner erected a Telecom tower in a property leased by the Haryana Tourism Corporation, leading to complaints and notices alleging illegal activities under the Punjab Land Preservation Act, 1900 (PLPA). The petitioner challenged the action taken against them.
Finding of the Court:
The court held that the Supreme Court's order regulating mining activities did not apply to the erection of the tower and compound wall, as they were not connected to mining activity. The court also found that the property was not forest land and that the PLPA did not apply to the petitioner's activities.
Issues: Challenging action under PLPA for erecting a Telecom tower, applicability of Supreme Court's order on mining activities, and the classification of the property as forest land.
Ratio Decidendi: The court's decision was based on the inapplicability of PLPA to the petitioner's activities and the lack of evidence that the property was forest land.
Final Decision: The impugned complaints, summoning orders, and notices were quashed, and the writ petition was allowed.
K. KANNAN, J.
1. The writ petition challenges the action taken against the petitioner, who has erected a Telecom tower in the property granted on lease by the Haryana Tourism Corporation. The notices were issued by the respondents complaining of raising a boundary wall around 25 meters and installing a tower, which was a non-forest purpose allegedly illegally. There had been subsequently, two complaints that the petitioner has caused some damage by laying a pathway after encroaching upon the forest land from road to the
tower. The property is reported to be in village Sohana, Sectors 4 and 5. As per these complaints, the petitioner was purported to have committed an offence punishable under Section 19 of the Punjab Land Preservation Act, 1900 (for short, 'PLPA'). On similar terms yet another notice was issued on 28.03.2008.
2. The basis of the petition is that the property, which has been granted on lease is entered in the revenue records as vesting in Gram Panchayat as shamilat deh and it is not a property which falls under any subsisting notification of PLPA to complain of commission of offence under Section 19 of the said Act. The scheme of PLPA is to provide for regulation, restriction or prohibition by general or special orders, which are mentioned under Sections 4 and 5 of PLPA. The power to regulate obtains in respect of areas, which are notified under Section 3. It shall, therefore, become necessary to reproduce Sections 3 to 5 of PLPA to appreciate the range of operation of these provisions:
“3. Notification of areas.-Whenever it appears to the [State] Government that it is desirable to provide for the conservation of sub-soil water or the prevention of erosion in any area subject to erosion or likely to become liable to erosion, such government may by notification make a direction accordingly.
4. Power to regulate, restrict or prohibit, by general or special order, within notified areas, certain matters. -In respect of areas notified under section 3 generally or the whole or any part of any such area, the State Government may by general or special order temporarily [-] regulate, restrict or prohibit -
(a) the clearing or breaking up or cultivating of land not ordinarily under cultivation prior to the publication of the notification under section 3;
(b) the quarrying of stone or the burning of lime at places where such stone or lime had not ordinarily been so quarried or burnt prior to the publication of the notification under section 3;
(c) the cutting of trees or timber, or the collection or removal or subjection to any manufacturing-process, otherwise than as described in clause (b) of this subsection of any forest-produce other than grass, save for bona fide domestic or agricultural purposes [of right-holder in such area];
(d) the setting on fire of trees, timber or forest produce;
5. Power in certain cases, to regulate, restrict or prohibit, by special order, within notified areas, certain further matters. -In respect of any specified village or villages, or part or parts thereof comprised within the limits of any area notified under section 3, the [State] Government may, by special order, temporarily regulate, restrict or prohibit -
(a) the cultivating of any land ordinarily under cultivation prior to the publication of the notification under section 3;
(b) the quarrying of any stone or the burning of any lime at places where such stone or lime had ordinarily been so quarried or burnt prior to the publication of the notification under section 3.”
This notification had been issued under the Act in relation to this village on 29.04.1970 by the Haryana Government Forest and Animal Husbandry Department for a period of 25 years. Admittedly, the period of 25 years have elapsed and again it is a matter, which is not contradicted that no fresh notification was issued subsequently.
3. The justifying basis for the action of the State is that notwithstanding the fact that the notification period has expired, Hon'ble
