It has been contended that the foundation of the directions and every aspect of the said judgment revolves around the determination of catchment area of the Sukhna Lake, which has been erroneously adopted based on the Survey of India Map dated September 21, 2004.
Stating that the order of March 2011 — as per which no housing colonies or building activities of any kind will take place in the ‘catchment area’ within the jurisdiction of Punjab and Haryana in terms of the map prepared by the Survey of India — shall remain in force; the Punjab and Haryana High Court in a detailed order released Thursday directed concerned authorities of the two states, “not to issue any permission for construction, water, electricity or sewerage connection to any dwelling unit without the order of this court”.
The division bench of Justices Jaswant Singh and Harinder Singh Sidhu, was hearing a review application challenging the order of HC passed on March 2, 2020, pertaining to the matter of Sukhna Lake catchment area.
The review applications have been filed before the HC, by Kansal Enclave Residents Welfare Association, Kansal Residents Protection of Rights and Welfare Association, residents of Kansal village, and Punjab.
In the review, it has been contended before the HC that the foundation of the directions and every aspect of the said judgment is affected by and revolves around the determination of catchment area of the Sukhna Lake, which has been erroneously adopted based on the Survey of India Map dated September 21, 2004.
It has been further contended by the aggrieved parties that on objections being raised by the parties regarding the catchment area being depicted in the Survey of India Map dated September 21, 2004, in subsequent orders and proceedings this court directed the amicus curiae to frame the issues.
In the issues so framed, the determination of ‘catchment area’ was a major issue regarding which submissions were made by rival parties.
Thus, the issue of catchment area was open and to be determined whether the Survey of India Map in 2004 is correct/accurate depiction of the catchment area of Sukhna Lake and whether there is need for a fresh assessment of catchment area of Sukhna Lake by adopting necessary technical parameters and considerations.
The final order of March 2, 2020, has been passed without the aforestated consideration and determination and thus the order dated March 2, 2020, is liable to be recalled, in view of the said error apparent on the face of the record.
On the issue, advocate Tanu Bedi, amicus curiae, referred to the judgment of Delhi High Court in ‘Sarin Memorial Legal Aid Foundation versus State of Punjab & Ors’, dated April 12, 2017, wherein the order of Supreme Court was reproduced regarding the project of Tata Housing Company, framing question whether the project falls within the catchment area and another question framed by Delhi High Court: “Whether the project in question falls within the catchment area of Sukhna Lake?”
The bench of Justices Jaswant Singh and H S Sidhu, after considering the submissions, said, “The Delhi High Court in the judgment dated 12.04.2017 has itself observed that it may be true that map dated 21.09.2004 is not conclusive, however, in the absence of acceptable evidence to the contrary, the court found no reason to disbelieve the correctness of the map dated 21.09.2004.
Even the judgment dated 02.03.2020 sought to be reviewed did not consider the aforementioned litigations or even mentions the same towards its consideration.
In the present proceedings, at this stage, we are not concerned with the land of Tata Housing Development Company Limited.”
“The consideration regarding the existing constructions wherein the inhabitants have raised constructions based on approved plans within the duly notified master plan area as per norms and regulations after payment of dues and charges, their shelters were never the subject matter of the above litigation referred by the amicus curiae. The right to shelter of such inhabitants in small plots in a populated area adhering to development norms, cannot be denied to such inhabitants without thoroughly thrashing each issue so formulated and addressed by each interested party to the lis. The right to shelter of such inhabitants is, in fact, imbibed in their right to life as enshrined under Article 21 of the Constitution. The right to life of such inhabitants cannot be ignored on the slightest doubt being established on the document (Map of Survey of India) dated 21.09.2004 which has been made the sole basis and criteria of the deprivation of such right,” said the bench.
The bench also took judicial notice of the last monsoon in August 2020 itself, when there was a breach in Sukhna Lake area and owing to opening of flood gates of Sukhna Lake, there was flooding in Baltana and Zirakpur area.
The bench thus issuing notice to the Union, and the states of UT, Punjab and Haryana, ordered that the directions regarding demolition of constructions raised in the catchment area as delineated by the Survey of India Map dated September 21, 2004 and the payment of damages/compensation shall remain stayed till the next date of hearing.
Source: Read Full Article