D.V. Sehgal, J. - (1.) THIS judgment will dispose of C.W.Ps. Nos. 3779 of 1985 and 615 of 1986 as both of them involve common question of law and fact.
(2.) THE facts are being taken from C.W.P. No. 3779 of 1985. The Petitioners therein are residents of Dara Kalan, tehsil Thanesar, district Kurukshetra, which area falls within the limits of Thanesar Municipality. All around their land residential and commercial buildings have been constructed and there is a great deal of pressure on their land for setting up a residential colony. The land in question thus has the potential of being developed into a residential and commercial complex. On 28th January, 1969 the Governor of Punjab by a special order Ex. P. 2 confirmed that the area described therein within the limits of Thanesar Municipality including the land of the Petitioners is 'unbuilt area' within the meaning of clause (b) of Sub -section (18) of Section 3 - of -the Punjab Municipal Act, 1911. The Haryana Municipal Act, 1973 (hereinafter -called 'the Municipal Act') now governs the municipal areas in the State of Haryana. Section 203 of the Municipal Act provides as under: 203. Building scheme: (1) The Committee may, and if so required by the Deputy Commissioner shall, within six months of the date of such requisition, draw up a building scheme for built areas, and a town planning scheme for unbuilt areas, which may among other things provides for the following matters, namely: (a) the restriction of the erection or re -erection of buildings or any class of buildings in the whole of or any part of the municipality, and of the use to which they may be put; (b) the prescription of a building line on either side or both sides of any street existing or proposed; (c) the amount of land in such unbuilt area which shall be transferred to the committee for public purposes including use as public streets by owners of land either on payment of compensation or otherwise, provided that the total amount so transferred shall not exceed forty per centum, and the amount transferred without payment shall not exceed twenty -five per centum, of any one owner's land within such unbuilt area; (d) the determination of the size and shape of a reconstituted plot so as to render it suitable for building purposes and where the plot is already built upon, to ensure that the building, so far as possible, complies with the provisions of the scheme in respect of open spaces; (e) the formation of a reconstituted plot by the alteration of the boundaries of an original plot; (f) the formation of a reconstituted plot by the transfer wholly or partly of the adjoining lands; (g) the allotment of a plot to any owner dispossessed of land in furtherance of the scheme; (h) the transfer of ownership of a plot from one person to another; and (i) the details of the internal services, estimated cost for providing them, the extent of the liability of the owners of buildings and lands for the Parent of the cost and the manner of payment of the same. Explanation - -For the purposes of this section: (1) the reconstituted plot shall mean a plot which is altered in ownership or otherwise as a result of making of a town planning scheme; (2) internal services shall mean: (i) metalling of roads and paving of footpaths; (ii) turfing and plantation with trees of open spaces; (iii) street lighting; (iv) adequate and wholesome water -supply; (v) sewers and drains both for storm and sullage water and necessary provision for their treatment and disposal; and (vi) any other works that the committee may think necessary for the development of the area comprised in the scheme. (2) When a scheme has been drawn up under the provisions of Sub -section (1), the committee shall give public notice of such schemes and shall at the same time intimate a date not less than thirty days from the date of such notice by which any person may submit to the "committee in writing any objection or suggestion with regard to such scheme which he may wish to make. (3) The committee shall consider every objection or suggestion with regard to the scheme which may be received by the date intimated under the provisions of Sub -section (2) and may modify the scheme in consequence of any such objection or suggestion and shall then forward such scheme as originally drawn up or as modified to the Deputy Commissioner, who may if he thinks fit, return it to the committee for reconsideration and resubmission by a specified date; and the Deputy Commissioner shall submit the plans as forwarded, or as resubmitted, as the case may be, with his opinion to the State Government, who may sanction such scheme or may refuse to sanction it, or may return it to the committee for reconsideration and resubmission by a specified date. (4) If a committee fails to submit a scheme within six months of being required to do so under Sub -section (1) or fails to resubmit a scheme by a specified date, when required to do so under Sub -section (3) or resubmits a scheme which is not approved by the State Government, the Deputy Commissioner may draw up a scheme of which public notice shall be given by notification and by publication within the municipality together with an intimation of the date by which any person may submit in writing to the Deputy Commissioner any objection or suggestion which he may wish to make, and the Deputy Commissioner shall forward with his opinion any such objection or suggestion to the State Government, and the State Government may sanction such scheme as originally notified or modified in consequence of any such objection or suggestion, as the State Government may think fit; and the cost of such scheme or such portion of the cost as the State Government may deem fit shall be defrayed from the municipal fund. (5) When sanctioning a scheme the State Government may impose conditions for the submission of periodical reports on the progress of the scheme to the Deputy Commissioner or to the State Government, and for the inspection and supervision of the scheme by the State Government. (6) After the scheme has been sanctioned the committee shall proceed to provide internal services as soon as possible and complete it within a period of five years from the date of its. sanction. In pursuance of the provisions of Section 203 reproduced above, it was incumbent on the Municipal Committee, Thanesar, Respondent No. 2, to frame a town planning scheme for, the unbuilt area, but this step was not taken for quite a long time. The Petitioner could not take up any building activity, because as a consequence of their land haying been declared as unbuilt area their building activity was to be regulated by such a scheme. The Petitioners applied for the preparation of a town planning scheme for, their land. Respondent No. 2 sent the survey plan and ownership statement with shajra plan etc. to the office of the District Town, Planner, Kurukshetra, for preparation of the scheme with a request that the scheme should be prepared for the area. However, when the matter was pending with the Chief Town Planner for finalising the town planning scheme, Respondent. No. 1 in -exercise of the powers under Section 4(1)(b) of the Punjab Scheduled, Roads and Controlled Areas Restriction of unregulated Development, Act, 1963 (hereinafter called 'the Scheduled Roads Act') issued a notification dated 26th June, 1980 declaring the area in question, including the land of the Petitioners, as 'controlled area'. As a result of the notification under the Scheduled Roads Act, the finalisation of the town planning scheme for the area of the Petitioners was stalled. A dispute arose 'whether the area is, to be regulated by Section 203 of the Municipal Act or by the Scheduled Road Act, It is mentioned in a letter dated 8th November, 1982 Annexure P. 4 form the Districts Town Planner, Kurukshetra, to the Chief Town Planner that the Legal Remembrance had opined, that town building scheme under Section 203 of the Municipal Act respect of an unbuilt area within the municipal limits which has been declared as controlled area under Section 4 of the Schedule Roads Act could not been prepared and finalised. In spite of the letter Annexure P. 4 and a subsequent letter dated 22nd August, 1983, Annexure P. 3 from the District Town Planner for resolving the, dead lock, no concretes step has been taken by the Respondents, with the that for over sixteen years the Petitioners have not been able to make use of the there land which has great building potential, Through write petitions therefore they have, sought a writ of certiorari quashing the order of Respondent No. 1 Annexure P. 2 declaring their area as unbuilt area as also for quashing the declaration of the Government declaring the same area as controlled area or in the alternative they have sought issuance of a writ of mandamus to the Respondents to frame a town planning scheme under the provisions of Section 203 of the Municipal Act and to make plans under Sub -section (1) of Section 5 of the Scheduled Roads Act.
(3.) WHILE written statement has been filed by the District Town Planner, Respondent No. 3, on behalf of Respondents Nos. 1, 3 and 4, a separate written statement has been filed by Respondent No. 2. The factual position as given in the writ petition has not been disputed. Respondent No. 2 has in its written statement shown its eagerness to finalise the town planning scheme so as to develop the 'unbuilt area' but has stated that the Town and Country Planning Department of Haryana is not preparing a scheme under Section 203 of the Municipal Act on the ground that the area in question has been declared 'controlled area' under the Scheduled Roads Act. Respondent No. 3, on the other hand, has explained that after the area in question has been declared 'controlled area' under the Scheduled Roads Act, a town planning scheme under the Municipal Act cannot be prepared. It has been averred that a plan in conformity with the provisions of Section 5 of the Scheduled Roads Act has since been published by the State Government and that if the Petitioners want to make use of their land for building activity, they should apply for permission from the Directorate of Town and Country Planning, Haryana.;