HC rejects GMADA affidavit, imposes Rs 25,000 costs for 'non-speaking' reply, lack of transparency

Virtually admonishing the Greater Mohali Area Development Authority (GMADA) for its failure to present ‘complete picture’ regarding unauthorised constructions across Mohali, including Siswan village, the Punjab and Haryana High Court on Tuesday rejected its status report and imposed Rs 25,000 costs.

Making it clear that mere assurances would not suffice, the Bench of Chief Justice Sheel Nagu and Justice Sanjiv Berry asserted that the status report filed in the matter did not give the complete picture, especially as to when the notices were issued to 193 defaulters in various villages across Mohali.

The directions and observations came after senior advocate DS Patwalia and counsel Gauravjit S. Patwalia pointed out that the status report was ‘evasive’. The Bench was told that the report talked about issuance of notice to the defaulters. But it did not mention the dates when the notices were issued. Even the remarks column in the affidavit was silent as far as action taken was concerned.

“They do not disclose when the notices were issued, what action has been taken in pursuance to the notices? Out of these 182, in some cases, notices were issued 10 years back and they have been allowed to continue. And in some cases, as a knee-jerk reaction of the order, the notice has issued only a week or two or two days after the order,” Patwalia asserted.

It was added that GMADA was playing ‘hide and seek’ with the court and not coming out clean.

“First GMADA files a very evasive reply, saying that there are only 28 defaulters, we'll take action. When I cry hoarse, the forest department files an affidavit saying they are not 28, they are 182. Then GMADA is caught at a back foot and now this affidavit has come, which is misleading and deceptive,” Patwalia added.

Taking a note of the submissions, the court also expressed strong displeasure over GMADA’s reliance on pending contempt proceedings without explaining their relevance to the present case. It noted that the contempt petitions arose prior to the court’s subsequent amendment of its earlier directions and “there was nothing on record to show that even the contempt court had been informed of the modification”.

Granting GMADA liberty to file a fresh affidavit, the court directed that the new reply must place on record the entire factual background, including issuance of notices, nature of violations, action taken so far, and the present status of proceedings against each alleged defaulter.

The directions came just about a month after the High Court flagged a serious mismatch in official figures on illegal constructions in and around Siswan. GMADA, in its reply, informed the court that it conducted a district-wide survey and identified 193 unauthorised constructions across Mohali, including the 28 earlier reported from Siswan village.

The Bench was told that action has already been initiated action against the violators.

Placing its action-taken report dated February 5 on record, GMADA stated that its regulatory branch was directed to conduct a detailed survey of 182 defaulters/unauthorised constructions across the district as reflected in the Forest Department’s affidavit.

“Accordingly, the Regulatory Branch of GMADA has conducted a survey of total 193 numbers of unauthorised constructions (including the previously reported 28 defaulters/unauthorised constructions of Village Siswan) and based on the survey report, action under the provisions of the Punjab Regional and Town Planning and Development Act, 1995 and the Punjab New Capital Periphery (Control) Act, 1952 has been initiated against the violators,” GMADA told the court.

GMADA further assured the Bench that the exercise was still ongoing.

“The process to survey all unauthorised constructions in de-listed forest land falling within the jurisdiction of GMADA in District SAS Nagar is still to continue, which would be completed up to March 31 and appropriate action as per law shall also be initiated accordingly,” the authority stated. The Bench, among others, was also assisted in the matter by senior advocate Anand Chhibbar.

Background: HC had flagged inconsistency, sought district-wide list

The details flows from a January 8 order in which the High Court flagged a glaring inconsistency between affidavits filed by the Forest Department and GMADA on illegal constructions in Siswan and surrounding areas, and directed GMADA to file a fresh, comprehensive reply covering the entire district.

Recording that the Forest Department had reported 182 defaulters, while GMADA’s affidavit mentioned only 28, the Division Bench of Chief Justice Sheel Nagu and Justice Neerja Kulwant Kalson had then observed: “There appears to be inconsistency between both these replies to the extent that the Forest Department has filed reply mentioning that there are 182 defaulters, but the reply filed on behalf of GMADA reveals that there are only 28 such defaulters.”

When counsel explained that GMADA’s figures were confined to Siswan village while the Forest Department’s data covered the entire SAS Nagar district, the Bench directed: “Let GMADA file proper reply mentioning all the defaulters in entire district of SAS Nagar (Mohali).” The matter was then listed for further hearing on February 10.

Larger scrutiny of eco-sensitive areas

The proceedings are part of sustained judicial scrutiny of non-forest and non-agricultural activities in Siswan, an area witnessing litigation over constructions, delisting under the Punjab Land Preservation Act (PLPA), and alleged environmental violations. In earlier orders, the High Court had sought full disclosure of all such activities, directed affidavits from senior GMADA officers, called for maps of divisions, ranges, blocks and compartments, and sought clarity on constructions standing on delisted or forest land.

While noting that 169.22 hectares had been delisted from the PLPA’s purview, the court had also questioned ambiguities in the governing notification and called for the entire minutes of the April 26, 2010 meeting chaired by the Punjab Chief Secretary. Throughout, the Bench has reiterated that its concern is confined to whether forest areas or protected zones are being encroached upon by constructions.