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NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOs.4684-4685 OF 2005

DASHMESH EDUCATIONAL SOCIETY  ...APPELLANT(S)

VERSUS

PUNJAB URBAN DEVELOPMENT  AUTHORITY & ORS. ...RESPONDENT(S)

WITH

SPECIAL LEAVE PETITION (C) No.19226 of 2013  &

SPECIAL LEAVE PETITION (C) No.20235 of 2013

JUDGMENT

RANJAN GOGOI, J.

1. The plaintiff  in civil  Suit No.65 of 2001 i.e.  Dashmesh  

Education  Society  has  preferred these appeals  against  the  

common order dated 12.10.2004 passed by the High Court of  

Punjab and Haryana in RSA Nos. 4328 and 4345 of 2002.  By  

the aforesaid order, the decree passed by the trial court in  

favour of the plaintiff, which was affirmed in first appeal, has  

been reversed by the High Court. 1

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2. Civil Suit No.65 of 2001 was filed seeking a declaration  

that  the Application dated 21.8.1998 filed by the plaintiff  

before the defendants seeking permission for setting up a  

Country Club/Resort at village Karoran, Tehsil Kharar, District  

Ropar  is  deemed  to  have  been  allowed  and  permission  

granted/sanctioned,  the same having not  been refused in  

writing  within  the  statutory  period  of  90  days  of  its  

submission  as  mandated by  the  provisions  of  the  Punjab  

New  Capital  Periphery  Control  Act,  1952.   Consequential  

relief of permanent injunction was also sought “restraining  

the  defendants  and  their  agents  from  interfering  in  any  

manner in the works undertaken by the plaintiff  over the  

land and from demolishing the constructions/developments  

already  made over  the  suit  land  forcibly  or  in  any  other  

manner.”

3. According  to  the  plaintiff,  a  registered  body,  by  

application dated 21.08.1998 it had sought permission for  

setting up a forest hill country club/resort within the area of  

village Karoran, Tehsil Kharar, District Ropar.  According to  

the plaintiff the project was a non polluting industry and was  

capable of generating substantial employment.  The plaint  2

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averments also disclosed that it is the case of the plaintiff  

that the area over which the resort was planned is covered  

by  the  provisions  of  the  Punjab  New  Capital  Periphery  

Control  Act,  1952  (hereinafter  referred  to  as  “the  Act  of  

1952”).  The application  dated 21.08.1998 submitted by the  

plaintiff under the said Act had initially invoked the response  

of the defendants in the suit who had asked for submission  

of  site  plan/location  plan  etc.,  all  of  which  requirements  

were  complied  with  by  the  plaintiff.   No  action  was  

subsequently  forthcoming despite  several  representations/  

reminders  submitted  by  the  plaintiff.  According  to  the  

plaintiff, under Section 5 of the Act of 1952 a decision was  

required to  be taken by the respondents  within  90 days,  

failing  which,  the  application  of  the  plaintiff  must  be  

deemed to have been accepted.   Hence the suit claiming  

the reliefs earlier noticed.   

4. The suit was contested by the State of Punjab as well as  

the  Punjab  Urban  Areas  Development  Authority  (PUDA)  

contending,  inter  alia,  that  the  application  filed  by  the  

plaintiff was not under Section 5 of the Act of 1952 as the  

essential  requirements  thereof  were  not  complied  with.  3

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Consequently, no question of deemed permission can and  

does arise. The suit was also claimed to be not maintainable  

as the Forest Department of the State, a necessary party,  

was not impleaded. Specifically it was contended that the  

land falls within the purview of the Punjab Land Preservation  

Act 1900 (hereinafter referred to as PLPA) and attracts the  

provisions  of  Indian  Forest  Act,  1927  and  the  Forest  

(Conservation) Act 1980.  It was accordingly urged that the  

land could not be used by any non forest purpose without  

the prior  approval  of  the Union Government and that the  

State  Government  was  not  competent  in  law  to  give  

permission for setting up of the country club/resort without  

due permission from the Government of India.

5. The suit,  as  mentioned earlier,  was  decreed  and the  

first  appeals  filed  by  the  State  and  PUDA  were  also  

dismissed  by  the  learned  District  Judge  by  order  dated  

30.04.2002.  Aggrieved,  RSA Nos.4328 and 4345 of 2002  

were instituted before the High Court by the PUDA and the  

State wherein by the impugned judgment and decree dated  

12.10.2004 the High Court allowed the second appeals and  

reversed the judgment and decree passed by the learned  4

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trial  court  and affirmed  by  the  first  appellate  court.  It  is  

against the aforesaid order passed in the second appeals  

that the plaintiff in the suit has filed the present appeals.

6. We have heard the learned counsels for the parties.

7. It  will  be  appropriate,  at  this  stage,  to  notice  the  

substantial questions of law that were framed by the High  

Court for determination in the second appeals in question.

“1. Whether the request for setting up Forest Hill  Country  Club  Resort  made  in  these  application  dated 21.8.1998 can be considered to have been  automatically  granted  on  the  expiry  of  90  days  even  when  the  application  was  not  submitted  under any specific provisions of the Act or in the  prescribed  proforma  and  to  the  appropriate  authority?

2. Whether the provisions of Land Preservation  Act, 1900, Indian Forest Act, 1927, the New Punjab  Capital  (Periphery)  Control  Act,  1952  and  the  Forest  (Conservation)  Act,  1980  are  attracted  in  the present case?

3. Whether the plaintiff/respondent could justify  the legality of  his  actions of  setting up the said  Resort within the area falling under the purview of  1952  Act  on  the  ground  of  huge  expenditure  incurred on the alleged development works on the  basis of deemed sanction?

4. Whether  the Forest  Guard Sunil  Kumar  was  competent to accept the report submitted by the  Patwari regarding the nature and status of land in  question  without  any  reference  to  either  the  

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revenue  records  or  to  the  notifications  issued  under  the  Acts  mentioned  in  para  No.9  above?  More  so,  when  the  Forest  Guard  was  not  specifically detailed for any such purposes?

5. Whether  the  construction  made  by  the  plaintiff/respondents  without  any  specific  and  express permission from the competent authorities  in violation of the provisions of the Acts mentioned  in  para  No.9  above  is  illegal  and  liable  to  be  demolished?”

8. Though a large number of contentions have been urged  

on behalf of the rival parties it will not be necessary for us to  

consider the same and record our views thereon in view of  

certain  parallel  judicial  orders  of  the  same  date  i.e.  

12.10.2004 that came to be passed by the High Court in a  

PIL registered as WP No.1134 of 2004.  The relevant facts in  

the aforesaid proceeding may now be taken note of.

9. An order dated 12.10.2004 was passed in the aforesaid  

PIL to the effect that the land in question covered by the PIL  

(same as in the present appeals) is forest land and no non-

forest activity is permissible thereon.  The said order was  

challenged before this Court in Civil Appeal No.4682-4683 of  

2005.  The said civil appeals have since been disposed of by  

an order of this Court dated 21.05.2014.  By the aforesaid  6

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order this Court, on the grounds and reasons assigned, has  

set aside the decision of the High Court to the effect that  

the entire land in Village Karoran District Ropar is forest land  

for the purpose of Section 2 of the Forest (Conservation) Act,  

1980 and has remanded the matter to the High Court for a  

fresh hearing and decision. Pursuant to the aforesaid order  

passed by this Court, the High Court has since considered  

the matter and directed a physical verification of the land to  

be made for determination as to whether the same or any  

part thereof is forest land or not. Such determination was  

ordered  by  the  High  Court  in  another  separate  but  

connected  proceeding  i.e.  CWP  No.22756  of  2013  which  

proceeding along with the PIL (CWP No.1134 of 2004) has  

since been disposed of after taking on record the report of  

the survey undertaken.

10. The order passed by this Court in civil appeal No.4682-

4683  of  2005  remanding  the  matter  for  de  novo  

consideration  by  the  High  Court;  the  consequential  

consideration of the matter by the High Court; the directions  

for  survey and the report  of  survey are subsequent facts  

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which cannot be overlooked or ignored while rendering our  

orders in the present appeals.  Though valiant efforts have  

been made by learned counsel for the appellants to restrict  

the scope of the arguments to certain other specific issues  

and not to dwell upon the aforesaid aspects of the case, the  

same are too significant to be overlooked or ignored. In fact,  

we  have  already  noticed  that  specific  issues/substantial  

questions  of  law  were  framed  by  the  High  Court  in  the  

second appeals in question with regard to the land being  

covered by the provisions of the Forest (Conservation) Act,  

1980.  The High Court, however, did not feel it necessary to  

go into the said question except for the purpose of a prima  

facie  decision  thereon for  determining  as  to  whether  the  

State Forest department was a necessary party in the civil  

suit.   In  fact,  the  second  appeals  were  decided  on  

consideration  of  certain  other  questions  namely,  as  to  

whether  the  application  for  permission  was  in  the proper  

prescribed form; whether relief could have been granted to  

the plaintiff without impleading the forest department and  

other similar questions.  However, in view of the subsequent  

developments  which  have  been  noted  above  there  is  no  

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escape from the necessity of  consideration of the question  

as to whether the land on which the resort/country club is  

sought to be established being a part of the Karoran village  

is  forest  land  within  the  meaning  of  the  Forest  

(Conservation)  Act,  1980  or  not.  A  decision  on  the  said  

question so as to conclusively and effectively determine the  

rights of the plaintiff has become unavoidable in view of the  

parallel developments and orders of this Court in civil appeal  

No.  No.4682-4683  of  2005  and  the  consequential  orders  

passed by the High Court.  In fact such determination of the  

entitlement  of  the  plaintiff  cannot  be  short-circuited  by  

avoiding a decision on the said question particularly when a  

substantial question of law was framed by the High Court in  

the second appeals before it as noticed and extracted above  

i.e.  whether  the  land  in  question  is  covered  by  the  

provisions of the Forest (Conservation) Act, 1980. The said  

question not answered by the High Court in the judgment  

under  challenge  will  now  be  requiring  a  specific  

determination in view of the subsequent development and  

orders  of  the  court  in  the  parallel  and  connected  

proceedings in C.A. Nos. 4682-4683 of 2005.    

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11. In view of the above, we arrive at the conclusion that  

the  aforesaid  determination  should  now  be  made  by  the  

High Court and for that purpose if the High Court considers  

it  necessary  may  allow  parties  to  adduce  additional  

evidence. Such evidence appears to be readily available as  

the appellant themselves have brought on the record of the  

present appeals all the relevant subsequent developments.  

Reception of the said material may be made in the second  

appeals by following the procedure prescribed by law and  

thereafter the High Court shall arrive at a decision on the  

entitlement of the parties in the light of the said materials.  

As the matter  has been pending for  long we request  the  

High Court to expedite its process of consideration of the  

matter in the light of the present order.  Consequently both  

the appeals are disposed of in terms of the direction(s) as  

indicated above.  

Special Leave Petition (C) Nos.19226 of 2013 & 20235  of 2013   

12. Writ Petition (C) No.12105 of 2013 was disposed of  by  

the High Court of Punjab & Haryana on 29.5.2013 in terms  

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of an earlier order dated 15.05.2013 passed in writ Petition  

(C) No.10478 of 2013.  Aggrieved by the orders passed in  

the two writ petitions, the present SLPs have been filed.  By  

order dated 05.07.2013 of this Court,  both the SLPs have  

been tagged with Civil  Appeal  No.4682-4683 of  2005.  No  

notice was issued.  

13. Civil Appeal Nos.4682-4683 of 2005 has been disposed  

of  by  this  Court  by  order  dated 21.05.2014  whereby  the  

matters have been remanded back to the High Court with  

certain directions. The present SLPs initially tagged with the  

aforesaid  two  civil  appeals  have  been  de-tagged  and  

directed to hearing separately.   

14. The short contention of the petitioners in the SLP is that  

the Notifications issued under Sections 4 and 5 of the Punjab  

Land Preservation (Chos) Act, 1900 (hereinafter referred to  

as the ‘1900 Act’), which were challenged before the High  

Court were issued under the provisions of Section 3 of the  

1900 Act prior to the amendments made to the said Section  

3 in 1914 and the somewhat comprehensive amendment of  

the entire 1900 Act effected in the year 1942. According to  

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the petitioner, Section 3 having been amended in 1914 and  

the very object and purpose of the 1900 Act having been  

also  altered  by  the  amendment  of  1942,  the  subsequent  

Notifications issued under Sections 4 and 5 in the year being  

under the old Section 3 of the 1900 Act are non est in law.

15. The High Court declined to go into the pleas raised in  

the writ petition on the ground that the writ petitions are  

highly belated and in any case a dispute pertaining to the  

land  is  pending  before  this  Court.  The  said  dispute,  as  

already  noticed,  arose  in  Civil  Appeal  Nos.  4682-4683  of  

2005 which has since been remanded to the High Court and  

have also been redecided/ reanswered by the High Court.

16.  In  so  far  as  delay  in  filing  the  writ  petitions  is  

concerned,  a  series  of  Notifications,  issued  from  time  to  

time, had been challenged by the petitioner. The last of the  

Notifications  under  challenge  is  of  the  year  2004.   The  

petitioner apparently came into possession of the property  

much earlier  i.e.  in  the year  1988.   If  that  be so,  it  was  

necessary for the petitioner to bring his challenge before the  

High Court well in time; instead the writ petitions were filed  

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in  the year  2013.   The view taken by the High Court  on  

account  of  delay  therefore  cannot  be  faulted  though  the  

High Court appears to have computed such delay from the  

date of first Notification issued under Section 3 of the 1900  

Act overlooking the subsequent Notifications issued which  

were  also  under  challenge.  Even  if  the  subsequent  

Notifications (of the year 2004) are taken into account, the  

eventual conclusion of the High Court cannot be faulted.

17. For  the  aforesaid  reasons,  we  do  not  consider  it  

appropriate to entertain the SLPs any further. Both SLP (C)  

Nos. 19226 of 2013 & 20235 of 2013 are dismissed.  

……………………………………J.                 [RANJAN GOGOI]

      ……………………………………J.                 [N.V. RAMANA]

NEW DELHI, MARCH 25, 2015.

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