Himachal Pradesh High Court
Anil Aggarwal vs H.P. Housing And Urban Development ... on 14 December, 2017
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA .
CWP No.10237 of 2012.
Judgment reserved on : 07.12.2017 Date of decision:14th December, 2017.
Anil Aggarwal .....Petitioner.
Versus
H.P. Housing and Urban Development Authority Shimla and another r .....Respondent s.
Coram The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. Whether approved for reporting?1Yes For the Petitioner : Ms.Jyotsna Rewal Dua, Senior Advocate with Ms.Charu Bhatnagar, Advocate.
For the Respondents: Mr.Neeraj Gupta, Advocate, for respondent No.1.
Mr.J.S.Guleria, Assistant Advocate General, for respondent No.2.
Tarlok Singh Chauhan, Judge.
I would preface this judgment by referring to the observations made by the Hon'ble Supreme Court in Dipak Kumar Mukherjee versus Kolkata Municipal Corporation and others (2013) 5 SCC 336 in connection with illegal and unauthorized construction of buildings and other structures which read thus:-
"8. What needs to be emphasised is that illegal and unauthorised constructions of buildings and other structure not only violate the municipal laws and the concept of planned development of the particular area but also affect various fundamental and constitutional rights of other persons. The common man feels cheated when he finds that those making illegal and unauthorised Whether the reporters of the local papers may be allowed to see the Judgment?Yes ::: Downloaded on - 14/12/2017 23:10:08 :::HCHP 2 constructions are supported by the people entrusted with the duty of preparing and executing master plan/development plan/zonal .
plan. The reports of demolition of hutments and jhuggi jhopris belonging to poor and disadvantaged section of the society frequently appear in the print media but one seldom gets to read about demolition of illegally/unauthorisedly constructed multi- storied structure raised by economically affluent people. The failure of the State apparatus to take prompt action to demolish such illegal constructions has convinced the citizens that planning laws are enforced only against poor and all compromises are made by the State machinery when it is required to deal with those who have money power or unholy nexus with the power corridors.
9. We have prefaced disposal of this appeal by taking cognizance of the precedents in which this Court held that there should be no judicial tolerance of illegal and unauthorized constructions by those who treat the law to be their sub-servient, but are happy to note that the functionaries and officers of Kolkata Municipal Corporation (for short, 'the Corporation') have been extremely vigilant and taken steps for enforcing the provisions of the Kolkata Municipal Corporation Act, 1980 (for short, 'the 1980 Act') and the rules framed thereunder for demolition of illegal construction raised by respondent No.7. This has given a ray of hope to the residents of Kolkata that there will be zero tolerance against illegal and unauthorised constructions and those indulging in such activities will not be spared."
2. Similar sentiments have been expressed earlier to this decision, some of which shall be referred to during the course of this judgment.
3. Adverting to the facts, it would be noticed that the petitioner was allotted by the respondents HIG Plot No. 18, measuring 113.12 square metres in Housing Colony at Nahan under the Hire Purchase Basis vide allotment letter dated 30.03.2002 on as is where is basis. Pursuant to this, a Hire Purchase Tenancy Agreement came to be executed between the parties on 13.06.2002 and possession thereafter ::: Downloaded on - 14/12/2017 23:10:08 :::HCHP 3 was delivered to the petitioner on 11.07.2002. A conveyance deed with respect to the plot was subsequently executed on 27.09.2004. On .
18.10.2005, the petitioner received a communication from the Assistant Engineer of the respondent wherein it was stated that the petitioner had encroached upon 47.49 square metres by way of roof projection and was directed to remove the same. In response to the same, the petitioner vide letter dated 31.10.2005 tried to justify why he had encroached upon the land on the ground that by encroaching the land he has only protected the possession and further prayed that his case of encroachment may be considered for the same as with that of the other encroachments which had been regularized by the respondents after permitting such encroachers to purchase the said area. The respondents did not accede to such request and instead issued a notice under Section 4 of the H.P. Public Premises and Land (Eviction and Rent Recovery) Act and thereafter filed a petition for ejectment of encroached land under Sections 3, 4, 5 and 7 which was allowed by the Collector and the appeal filed against the same also came to be dismissed constraining the petitioner to file the instant petition for grant of the following substantive reliefs:-
"i) For issuing a writ of certiorari or any other appropriate writ for quashing order dated 19.8.2011 enclosed as Annexure P-1.
ii) For directing the respondents to settle the alleged encroachment case of the petitioner by permitting him to purchase the area under alleged encroachment, in case the alleged encroachment is held to be an encroachment, without discriminating the petitioner vis-à-vis other similarly situated persons named in Annexure P-11 who have been permitted to purchase the area encroached by them."
4. In reply filed by respondent No.1, preliminary objections regarding petition being not maintainable and concealment of facts have ::: Downloaded on - 14/12/2017 23:10:08 :::HCHP 4 been raised. It is averred that since the petitioner is an encroacher having encroached upon land measuring 47.49 square metres, the .
present petition being a gross abuse of process of law is liable to be dismissed. These averments have been reiterated in the reply filed on merits.
5. The petitioner has filed rejoinder wherein he has again tried to justify the reasons for his encroachment.
I have heard the learned counsel for the parties and have gone through the records of the case.
6. At the outset, it would be noticed that on 13.06.2013 a learned Division Bench of this Court passed the following orders:-
"Heard. During the course of arguments, it has been brought to the notice of the Court that the petitioner is still ready to take/purchase the land measuring 47.49 sq meter allegedly encroached by the petitioner. Besides above, petitioner is also ready to purchase more land, if found in his possession. Petitioner has also very humbly submitted that respondents/authorities may be directed to consider his case for transferring such land on the genuine prevailing circle rate so that the apprehension of mis- utilization of such land by the petitioner or by anyone else or the apprehension of non-utilization of such land suitably, may be mitigated.
Keeping in view the submissions advanced on behalf of the petitioner, in the facts and circumstances, liberty is given to the petitioner to approach the respondents or its authorities within two weeks from today, along with certified copy of this order, with the proposal to purchase/allotment of the land adjacent to his house and between the outer wall of his house upto the retaining wall, so that the measurement of the same may be made for transfer of such land on circle rate prescribed for the area, within permissible norms of the respondent authority, as it would be in the interest of revenue and for resolving the controversy. The outcome of the same may be brought before this Court by filing affidavit on or before the next date of hearing.
List on 24.7.2013.::: Downloaded on - 14/12/2017 23:10:08 :::HCHP 5
Copy Dasti."
.
7. In compliance to the aforesaid orders, the Board of Directors deliberated upon the issue and took the following decision:-
"The Board after detailed deliberations desired that files of individual case-wise of encroachment and unauthorized construction be examined and dealt accordingly. Addl. Item No.29 regarding allotment of encroached land to Sh.Anil Aggarwal also came up for discussion as per the order passed by the Hon'ble High Court in CWP No.10237 of 2012 titled as Anil Aggarwal V/s HIMUDA. After detailed discussion, it was observed that since Sh.Aggarwal has made encroachment upon HIMUDA land to the large extent and done un-authorized construction thereon, his case for regularization of land cannot be considered."
8. Now adverting to the facts and documents on record, both the authorities constituted under the H.P. Public Premises and Land (Eviction and Rent Recovery) Act, have concurrently found the petitioner to be an encroacher. The encroachment further stands proved in the report submitted by the Local Commissioner appointed by this Court which reads thus:-
" Proceeding of site inspection by Naresh Vasisht, Superintending Engineer, 12th Circle HPPWD Nahan as Local Commissioner of Plot No.HIG-18 of Sh.Anil Aggarwal in H.B.Colony on 09.10.2017 at NAHAN CWP No. 10237/2012.
Consequent upon the referring back of the case to the undersigned vide Deputy Advocate General (Sh.Neeraj Sharma's) letter dated 19.09.2017 in CWP No.10237/2012. Both the parties were directed vide this office letter No.3930-31 and 3032-33 both dated 22.09.2017 to produce approved copy of the Architectural drawing duly approved by the competent authority.
Sh.Anil Aggarwal, the petitioner vide his letter dated 28-9-17 and the Executive Engineer, HP Housing Board Nahan (representative of HIMUDA) vide his letter No.752 dated 04.10.2017 provided the architectural drawing approved by the competent authority.::: Downloaded on - 14/12/2017 23:10:08 :::HCHP 6
Further Sh.Anil Aggarwal vide his letter dated 03.10.2017 requested for early hearing and the other party the Executive .
Engineer H.P. Housing Board gave its consent and as such the site was inspected on 09.10.2017 and the report is as under:-
(i) The petitioner Sh.Anil Aggarwal was allotted a plot of land measuring 113.125 sqm named HIG-18 in housing board colony.
(ii) As per approved Architectural drawing duly approved by the competent authority allowed built up area on different floors is as under:-
GROUND FLOOR = 31.96m 2
FIRST FLOOR = 61.92m 2
SECOND FLOOR = 61.92m 2
TOTAL 155.20m 2
FAR 1:37
The facts (i) & (ii) recorded above are not disputed.
The measurement of built up area were carried out on 09.10.2017 and the following facts came to light:-
1. Built up area on Ground Floor: 4.01x9.95= 39.89 Sqm against approval of 31.96 Sqm.
2. Built up Area on First Floor: 12.10x 9.95= 120.395 Sqm against approval of 61.62 m 2
3. Built up Area on Second Floor: 12.10x 9.95=120.395m 2 The above calculations 1,2 and 3 are tabulated below for the purpose of clarity:
LEVEL APPROVED BUILT UP AREA ACTUAL BUILT UP AREA IN SQUARE METER IN SQUARE METER Ground 31.96 sq. mtrs 39.89 Floor First 61.92 sq. mtrs 120.395 Floor Second 61.92 sq. mtrs 120.395 Floor Total 155.20 sq.mtrs 280.68 Both the parties present agreed to the above measurements and put their signatures in token of their complete satisfaction.
Sd/- .......Petitioner.
Sh.Anil Aggarwal
Present in person.
::: Downloaded on - 14/12/2017 23:10:09 :::HCHP
7
Sd/-
Sh.Ajay Sharma ....Respondent.
.
Executive Engineer,
HP Housing Board Nahan
(representative of HIMUDA)
Sd/-
Er.Naresh Vasisht
(Local Commissioner)
Superintending Engineer,
12th Circle, HPPWD, Nahan."
9. It would be noticed that when the area is specified in square metres, it apparently appears to be quite small.
r However, when the same is multiplied by 10.7639 to convert it into square feet, it would be noticed that the total encroachment made by the petitioner is infact as under:-
Ground Floor 39.89 x 10.76=429 sq. ft.
First Floor 120.395x10.76=1295 sq.ft.
Second Floor 120.395x10.76=1295 sq.ft.
Total 280.68x10.76=3020 sq.ft.
10. From the above, it is evidently clear that the encroachment made by the petitioner is nearly double the actual allotment made in his favour. Even though, Ms. Jyotsna Rewal Dua, Senior Advocate, assisted by Ms.Charu Bhatnagar, Advocate, for the petitioner, with all vehemence at her command, would argue that it was due to site constraints that the petitioner had to encroach upon the area more than that of allotted to him. However, I find no merit in this submission for the simple reason that even if it is assumed that there were constraints at the site, even then these would have only been there at the level of laying down of foundation and, therefore, once the foundation had been laid, there was no reason why the petitioner should have then expanded vertically and ::: Downloaded on - 14/12/2017 23:10:09 :::HCHP 8 horizontally in all possible directions and raised construction over an area which was double the area that was infact allotted to him.
.
11. It would be noticed that the approved built up area of the ground floor was 31.96 and even if the site constraints are taken into consideration and it is assumed that the petitioner had on account of this constructed the ground floor over an area of 39.89 square metres, then obviously in case his intention was not to encroach upon any area, the petitioner would not have constructed over an area of 120.395 square metres as against approved built up area of 61.92 on both floors which clearly proves his intention of grabbing and encroaching upon the property of the respondents. Once, the ground floor was constructed over an built up area of 39.89 square metres, obviously then the first and second floors could have conveniently been constructed within the approved built up area of 61.92 square metres. Therefore, the plea of site constraints set up by the petitioner to justify his illegal construction of constraints at site is not justifiable and is clearly an after thought.
12. In M.I.Builders Pvt. Ltd. versus Radhey Shyam Sahu and others (1999) 6 SCC 464, the Hon'ble Supreme Court in no unequivocal terms held that no consideration should be shown to the builder or any other person where construction is unauthorized and it was further held that this dicta is now almost bordering the rule of law. It was further held that the Courts cannot exercise discretion which encourages illegality and perpetuates any illegality. Unauthorized construction, if it is illegal cannot be compounded and has to be demolished. There is no way out. Judicial discretion cannot be guided by expediency. Further, it was held that the Courts are not free from statutory fetters. Justice is to be rendered in accordance with law. Judges are not entitled to exercise ::: Downloaded on - 14/12/2017 23:10:09 :::HCHP 9 discretion wearing the robes of judicial discretion and pass orders solely on their personal predilections and peculiar dispositions. Judicial .
discretion whenever it is required to be exercised has to be in accordance with law and set legal principles.
13. In Friends Colony Development Committee versus State of Orissa and others (2004) 8 SCC 733, it was held by the Hon'ble Supreme Court that deliberate deviations from the sanctioned plan should not be condoned and compounded and it was obser ved as under:-
"20. The pleadings, documents and other material brought on record disclose a very sorry and sordid state of affairs prevailing in the matter of illegal and unauthorized constructions in the city of Cuttack. Builders violate with impunity the sanctioned building plans and indulge deviations much to the prejudice of the planned development of the city and at the peril of the occupants of the premises constructed or of the inhabitants of the city at large. Serious threat is posed to ecology and environment and, at the same time, the infrastructure consisting of water supply, sewerage and traffic movement facilities suffer unbearable burden and are often thrown out of gear. Unwary purchasers in search of roof over their heads and purchasing flats/apartments from builders, find themselves having fallen prey and become victims to the design of unscrupulous builders. The builder conveniently walks away having pocketed the money leaving behind the unfortunate occupants to face the music in the event of unauthorized constructions being detected or exposed and threatened with demolition. Though the local authorities have the staff consisting of engineers and inspectors whose duty is to keep a watch on building activities and to promptly stop the illegal constructions or deviations coming up, they often fail in discharging their duty. Either they don't act or do not act promptly or do connive at such activities apparently for illegitimate considerations. If such activities are to stop, some stringent actions are required to be taken by ruthlessly demolishing the illegal constructions and non-compoundable deviations. The ::: Downloaded on - 14/12/2017 23:10:09 :::HCHP 10 unwary purchasers who shall be the sufferers must be adequately compensated by the builder. The arms of the law must stretch to .
catch hold of such unscrupulous builders. At the same time, in order to secure vigilant performance of duties, responsibility should be fixed on the officials whose duty it was to prevent unauthorized constructions, but who failed in doing so either by negligence or by connivance.
21.The conduct of the builder in the present case deserves to be noticed. He knew it fully well what was the permissible construction as per the sanctioned building plans and yet he not only constructed additional built up area on each floor but also added an additional fifth floor on the building, and such a floor was totally unauthorized. In spite of the disputes and litigation pending he parted with his interest in the property and inducted occupants on all the floors, including the additional one. Probably he was under the impression that he would be able to either escape the clutches of the law or twist the arm of the law by some manipulation. This impression must prove to be wrong.
22. In all developed and developing countries there is emphasis on planned development of cities which is sought to be achieved by zoning, planning and regulating building construction activity.
Such planning, though highly complex, is a matter based on scientific research, study and experience leading to rationalization of laws by way of legislative enactments and rules and regulations framed thereunder. Zoning and planning do result in hardship to individual property owners as their freedom to use their property in the way they like, is subjected to regulation and control. The private owners are to some extent prevented from making the most profitable use of their property. But for this reason alone the controlling regulations cannot be termed as arbitrary or unreasonable. The private interest stands subordinated to the public good. It can be stated in a way that power to plan development of city and to regulate the building activity therein flows from the police power of the state. The exercise of such governmental power is justified on account of its being reasonably necessary for the public health, safety, morals or general welfare and ecological considerations; though an unnecessary or ::: Downloaded on - 14/12/2017 23:10:09 :::HCHP 11 unreasonable inter- meddling with the private ownership of the property may not be justified.
.
23. The municipal laws regulating the building construction activity may provide for regulations as to floor area, the number of floors, the extent of height rise and the nature of use to which a built-up property may be subjected in any particular area. The individuals as property owners have to pay some price for securing peace, good order, dignity, protection and comfort and safety of the community. Not only filth, stench and unhealthy places have to be eliminated, but the layout helps in achieving family values, youth values, seclusion and clean air to make the locality a better place to live. Building regulations also help in reduction or elimination of fire hazards, the avoidance of traffic dangers and the lessening of prevention of traffic congestion in the streets and roads. Zoning and building regulations are also legitimized from the point of view of the control of community development, the prevention of over- crowding of land, the furnishing of recreational facilities like parks and playgrounds and the availability of adequate water, sewerage and other governmental or utility services.
24. Structural and lot-area regulations authorize the municipal authorities to regulate and restrict the height, number of stories and other structures; the percentage of a plot that may be occupied; the size of yards, courts, and open spaces; the density of population; and the location and use of buildings and structures. All these have in view and do achieve the larger purpose of the public health, safety or general welfare. So are front setback provisions, average alignments and structural alterations. Any violation of zoning and regulation laws takes the toll in terms of public welfare and convenience being sacrificed apart from the risk, inconvenience and hardship which is posed to the occupants of the building. [For a detailed discussion reference may be had to the chapter on Zoning and Planning in American Jurisprudence, 2d, Vol.82.]
25. Though the municipal laws permit deviations from sanctioned constructions being regularized by compounding but that is by way of exception. Unfortunately, the exception, with the lapse of time and frequent exercise of the discretionary power conferred ::: Downloaded on - 14/12/2017 23:10:09 :::HCHP 12 by such exception, has become the rule. Only such deviations deserve to be condoned as are bona fide or are attributable to .
some mis-understanding or are such deviations as where the benefit gained by demolition would be far less than the disadvantage suffered. Other than these, deliberate deviations do not deserve to be condoned and compounded. Compounding of deviations ought to be kept at a bare minimum. The cases of professional builders stand on a different footing from an individual constructing his own building. A professional builder is supposed to understand the laws better and deviations by such builders can safely be assumed to be deliberate and done with the intention of earning profits and hence deserve to be dealt with sternly so as to act as a deterrent for future. It is common knowledge that the builders enter into under hand dealings. Be that as it may, the State Governments should think of levying heavy penalties on such builders and therefrom develop a welfare fund which can be utilized for compensating and rehabilitating such innocent or unwary buyers who are displaced on account of demolition of illegal constructions."
14. In Royal Paradise Hotel (P) Ltd. versus State of Haryana and others (2006) 7 SCC 597, the Hon'ble Supreme Court while reiterating that unauthorized construction should not be encouraged and compounding is not to be done when the violations are deliberate, designed, reckless or motivated, observed as under:-
"7. It is clear from the statement of the synopsis and list of dates furnished by the appellant itself, that on 4.2.1998, Mr. Chawla, who put up the construction before it was sold to the appellant received a notice under Section 12 of the Act informing him of contravention of Section 3 or Section 6 and of violation of Section 7(1) and Section 10 of the Act and directing him to stop further construction. When it was found that the appellant was defying the direction to stop, an order was passed on 26.2.1998 under sub-Section (2) of Section 12 of the Act directing him to remove the unauthorized construction and to bring the site in conformity with the relevant provisions of the Act on finding that there was clear violation of Section 7 and Section 10 of the Act. On ::: Downloaded on - 14/12/2017 23:10:09 :::HCHP 13 16.3.1999, another notice was issued to Mr. Chawla mentioning therein that there is a contravention of Section 7(1) or Section 10 .
of the Act and directing removal of the unauthorized construction.
The copies of the original notices are produced by the respondents along with the counter affidavit filed on behalf of the respondent Nos.1 to 3. Though the copies of such notices have been produced by the appellant also, we find that there are some omissions in the copies produced on behalf of the appellant. Whatever it be, the fact remains that the construction was made in the teeth of the notices and the directions to stop the unauthorized construction. Thus, the predecessor of the appellant put up the offending construction in a controlled area in defiance of the provisions of law preventing such a construction and in spite of notices and orders to stop the construction activity. The constructions put up are thus illegal and unauthorized and put up in defiance of law. The appellant is only an assignee from the person who put up such a construction and his present attempt is to defeat the statute and the statutory scheme of protecting the sides of highways in the interest of general public and moving traffic on such highways. Therefore, this is a fit case for refusal of interference by this Court against the decision declining the regularization sought for by the appellant. Such violations cannot be compounded and the prayer of the appellant was rightly rejected by the authorities and the High Court was correct in dismissing the Writ Petition filed by the appellant. It is time that the message goes aboard that those who defy the law would not be permitted to reap the benefit of their defiance of law and it is the duty of High Courts to ensure that such defiers of law are not rewarded. The High Court was therefore fully justified in refusing to interfere in the matter. The High Court was rightly conscious of its duty to ensure that violators of law do not get away with it.
8. We also find no merit in the argument that regularization of the acts of violation of the provisions of the Act ought to have been permitted. No authority administering municipal laws and other laws like the Act involved here, can encourage such violations. Even otherwise, compounding is not to be done when the violations are deliberate, designed, reckless or motivated. Marginal or insignificant accidental violations unconsciously made after trying to comply with all the requirements of the law can ::: Downloaded on - 14/12/2017 23:10:09 :::HCHP 14 alone qualify for regularization which is not the rule, but a rare exception. The authorities and the High Court were hence right in .
refusing the request of the appellant."
15. In Shanti Sports Club and another versus Union of India and others (2009) 15 SCC 705, the Hon'ble Supreme Court approved the order of the Delhi High Court which had declared the construction of sports club by the appellants on the land acquired for planned r to development Delhi to be illegal by observing thus:-
"73 . Before concluding, we consider it necessary to enter a caveat. In all developed countries, great emphasis has been laid on the planned development of cities and urban areas. The object of planned development has been achieved by rigorous enforcement of master plans prepared after careful study of complex issues, scientific research and rationalisation of laws. The people of those countries have greatly contributed to the concept of planned development of cities by strictly adhering to the planning laws, the master plan etc. They respect the laws enacted by the legislature for regulating planned development of the cities and seldom there is a complaint of violation of master plan etc. in the construction of buildings, residential, institutional or commercial. In contrast, scenario in the developing countries like ours is substantially different. Though, the competent legislatures have, from time to time, enacted laws for ensuring planned development of the cities and urban areas, enforcement thereof has been extremely poor and the people have violated the master plans, zoning plans and building regulations and bye-laws with impunity.
74. In the last four decades, almost all cities, big or small, have seen unplanned growth. In the 21st century, the menace of illegal and unauthorized constructions and encroachments has acquired monstrous proportions and everyone has been paying heavy price for the same. Economically affluent people and those having support of the political and executive apparatus of the State have constructed buildings, commercial complexes, multiplexes, malls etc. in blatant violation of the municipal and town planning laws, ::: Downloaded on - 14/12/2017 23:10:09 :::HCHP 15 master plans, zonal development plans and even the sanctioned building plans. In most of the cases of illegal or unauthorized .
constructions, the officers of the municipal and other regulatory bodies turn blind eye either due to the influence of higher functionaries of the State or other extraneous reasons. Those who construct buildings in violation of the relevant statutory provisions, master plan etc. and those who directly or indirectly abet such violations are totally unmindful of the grave consequences of their actions and/or omissions on the present as well as future generations of the country which will be forced to live in unplanned cities and urban areas. The people belonging to this class do not realize that the constructions made in violation of the relevant laws, master plan or zonal development plan or sanctioned building plan or the building is used for a purpose other than the one specified in the relevant statute or the master plan etc., such constructions put unbearable burden on the public facilities/amenities like water, electricity, sewerage etc. apart from creating chaos on the roads. The pollution caused due to traffic congestion affects the health of the road users. The pedestrians and people belonging to weaker sections of the society, who cannot afford the luxury of air-conditioned cars, are the worst victims of pollution. They suffer from skin diseases of different types, asthma, allergies and even more dreaded diseases like cancer. It can only be a matter of imagination how much the government has to spend on the treatment of such persons and also for controlling pollution and adverse impact on the environment due to traffic congestion on the roads and chaotic conditions created due to illegal and unauthorized constructions. This Court has, from time to time, taken cognizance of buildings constructed in violation of municipal and other laws and emphasized that no compromise should be made with the town planning scheme and no relief should be given to the violator of the town planning scheme etc. on the ground that he has spent substantial amount on construction of the buildings etc. - K. Ramdas Shenoy v. Chief Officers, Town Municipal Council, Udipi 1974 (2) SCC 506, Dr. G.N. Khajuria v. Delhi Development Authority 1995 (5) SCC 762, M.I. Builders Pvt. Ltd. v. Radhey Shyam Sahu 1999 (6) SCC 464, Friends Colony Development Committee v. State of Orissa 2004 (8) SCC 733, M.C. Mehta v.::: Downloaded on - 14/12/2017 23:10:09 :::HCHP 16
Union of India 2006 (3) SCC 399 and S.N. Chandrasekhar v. State of Karnataka 2006 (3) SCC 208.
.
75. Unfortunately, despite repeated judgments by the this Court and High Courts, the builders and other affluent people engaged in the construction activities, who have, over the years shown scant respect for regulatory mechanism envisaged in the municipal and other similar laws, as also the master plans, zonal development plans, sanctioned plans etc., have received encouragement and support from the State apparatus. As and when the courts have passed orders or the officers of local and other bodies have taken action for ensuring rigorous compliance of laws relating to planned development of the cities and urban areas and issued directions for demolition of the illegal/unauthorized constructions, those in power have come forward to protect the wrong doers either by issuing administrative orders or enacting laws for regularization of illegal and unauthorized constructions in the name of compassion and hardship. Such actions have done irreparable harm to the concept of planned development of the cities and urban areas. It is high time that the executive and political apparatus of the State take serious view of the menace of illegal and unauthorized constructions and stop their support to the lobbies of affluent class of builders and others, else even the rural areas of the country will soon witness similar chaotic conditions.
76. In the result, the appeals are dismissed. However, by taking note of the submission made by Shri Mukul Rohtagi that some time may be given to his clients to vacate the land, we deem it proper to grant thee months' time to the appellants to handover possession of the land to the concerned authority of DDA. This will be subject to the condition that within two weeks from today an affidavit is filed on behalf of the appellants by an authorised person that possession of the land will be handed over to DDA by 30 th November, 2009 and during this period no encumbrances whatsoever will be created by the appellants or their agents and that no compensation will be claimed for the construction already made. Needless to say that if the required undertaking is not filed, the concerned authorities of DDA shall be entitled to take ::: Downloaded on - 14/12/2017 23:10:09 :::HCHP 17 possession of the land and, if necessary, take police help for that purpose."
.
16. Similar observations are echoed by the Hon'ble Supreme Court in Priyanka Estates International Private Limited and others versus State of Assam and others (2010) 2 SCC 27, wherein it was observed as under:-
"55. It is a matter of common knowledge that illegal and unauthorized constructions beyond the sanctioned plans are on rise, may be due to paucity of land in big cities. Such activities are required to be dealt with by firm hands otherwise builders/colonizers would continue to build or construct beyond the sanctioned and approved plans and would still go scot- free....."
17. Similar, sentiments have been expressed by the Hon'ble Supreme Court in Sanjay Adlakha versus State of Haryana and others (2011) 15 SCC 387.
18. In Union Territory of Lakshadweep versus Seashells Beach Resort and others (2012) 6 SCC 136, the Hon'ble Supreme Court did not approve the grant of relief in matters of violation of CRZ notification only upon humanitarian and equitable considerations and it was observed as under:-
"30. The High Court's order proceeds entirely on humanitarian and equitable considerations, in the process neglecting equally, if not more, important questions that have an impact on the future development and management of the Lakshadweep Islands. We are not, therefore, satisfied with the manner in which the High Court has proceeded in the matter.
31. The High Court obviously failed to appreciate that equitable considerations were wholly misplaced in a situation where the very erection of the building to be used as a resort violated the CRZ requirements or the conditions of land use diversion. No one could in the teeth of those requirements claim equity or present the administration with a fait accompli. The resort could ::: Downloaded on - 14/12/2017 23:10:09 :::HCHP 18 not be commissioned under a judicial order in disregard of serious objections that were raised by the Administration, which .
objections had to be answered before any direction could issue from a writ court."
19. The observations by the Hon'ble Supreme Court in Deepak Kumar Mukherjee's case (supra) have already been extracted above and similar ethos was reflected by the same Bench of the Hon'ble Supreme Court in Esha Ekta Apartments Cooperative Housing Society Limited and others versus Municipal Corporation of Mumbai and others (2013) 5 SCC 357, wherein it was observed:-
"1. In last five decades, the provisions contained in various municipal laws for planned development of the areas to which such laws are applicable have been violated with impunity in all the cities, big or small, and those entrusted with the task of ensuring implementation of the master plan, etc., have miserably failed to perform their duties. It is highly regrettable that this is so despite the fact that this Court has, keeping in view the imperatives of preserving the ecology and environment of the area and protecting the rights of the citizens, repeatedly cautioned the concerned authorities against arbitrary regularization of illegal constructions by way of compounding and otherwise."
20. In view of the law expounded in the aforesaid decisions, it can conveniently be held that even the most deterrent orders that have been passed by the Hon'ble Supreme Court in matters of obstruction, illegal construction, unauthorized encroachments, violation of statutory plans and schemes have had no effect and have not acted as a deterrent. As observed by the Hon'ble Supreme Court, there has to be zero tolerance on the part of the Court when it gets down to decide the cases of unauthorized encroachments, obstructions and illegal constructions, violation of statutory plans and schemes. Therefore, even on the ground of sympathy, the Court cannot come to the rescue ::: Downloaded on - 14/12/2017 23:10:09 :::HCHP 19 of the petitioner or else such direction would be blatant violation of the orders of the Hon'ble Supreme Court and grant of any relief to the .
petitioner is not only impermissible, but would even amount to judicial impropriety, blatant and scant respect for the orders of the Hon'ble Supreme Court which otherwise are binding upon this Court under Article 141 of the Constitution of India.
21. It is then vehemently argued by the learned counsel for the petitioner that the case of the petitioner should be ordered to be considered for regularization as in the case of other encroachers as mentioned in Annexure P-11 of the writ petition. This plea has been vehemently opposed by the learned counsel for the respondents on the ground that the petitioner is not a similarly situated to those persons. However, without going into that question, it would be noticed that what the petitioner is urging is a plea of negative parity which cannot be claimed or enforced in a Court of law as it is only legal right that can be enforced in a Court of law.
22. In State of Haryana and others versus Ram Kumar Mann, (1997) 3 SCC 321, it was held that a wrong order cannot be the foundation for claiming equality. It was further held that a wrong decision by the Government does not give a right to enforce the wrong order and claim parity or equality and two wrongs can never make a right. It was also held that a right agitated before the Court must be founded upon enforceable right to entitle one to the equality treatment for enforcement thereof. It is apt to reproduce para 3 of the judgment, which reads thus:-
"3. The question, therefore, is whether the view taken by the High Court is correct in law. It is seen that the respondent had ::: Downloaded on - 14/12/2017 23:10:09 :::HCHP 20 voluntarily resigned from the service and the resignation was accepted by the Government on 18.5.1982. On and from that .
date, the relationship of employer and the employee between the respondent and the State ceased and thereafter he had no right, whatsoever, either to claim the post or a right to withdraw his resignation which had already become effective by acceptance on 18-5-1982. It may be that the Government for their own reasons, had given permission in similar case, to some of the employees mentioned earlier, to wi thdraw their resignations and had appointed them. The doctrine of discrimination is founded upon existence of an enforceable right. He was discriminated and denied equality as some similarly situated persons had been given the same relief.
Article 14 would apply only when invidious discrimination is meted out to equals and similarly circumstanced without any rational basis or relationship in that behalf. The respondent has no right, whatsoever and cannot be given the relief wrongly given to them, i.e., benefit of withdrawal of resignation. The High Court was wholly wrong in reaching the conclusion that there was invidious discrimination. If we cannot allow a wrong to perpetrate, an employee, after committing misappropriation of money, is dismissed from service and subsequently that order is withdrawn and he is reinstated into the service. Can a similar circumstanced person claim equality under Section 14 for reinstatement? Answer is obviously "No". In a converse case, in the first instance, one may be wrong but the wrong order cannot be the foundation for claiming equality for enforcement of the same order. As stated earlier for enforcement of the same order. As stated earlier, his right must be founded upon enforceable right to entitle lion to the equality treatment for enforcement thereof. A wrong decision by the Government does not give a right decision by the Government does not give a right to enforce the wrong order and claim parity or equality.
Two wrongs can never made a right. Under these circumstances, the High Court was clearly wrong in directing reinstatement of the respondent by a mandamus by a mandamus with all consequential benefits."::: Downloaded on - 14/12/2017 23:10:09 :::HCHP 21
23. In National Institute of Technology versus. Chandra Shekhar (2007) 1 SCC 93, the Hon'ble Supreme Court after placing .
reliance upon the judgment of State of Haryana Vs. Ram Kumar (supra) and lot of other judgments, has held that a wrong decision by the Government would not give a right to enforce a wrong order and claim parity or equality. The relevant portion of the judgment reads as under:-
"10. Merely because in some cases the norms may not have been followed that cannot be a ground to hold that departure from norms should be continued. There are serious allegations about respondent having manipulated and fabricated documents to substantiate his stand. We need not go into these allegations. But as has been fairly accepted by the learned counsel for the respondent, there is no official communication from IIT Madras to support the respondent's stand that he was asked by the authorities of the said institute not to attend the programme. There should have been some material to support the stand. Unfortunately, for the respondent there is none. On the other hand admittedly after April, 2005 the respondent had abandoned the programme. It is also on record that the appellant notwithstanding these facts had asked the respondent to report back to IIT, Madras to continue studies in terms of High Court's direction. But that does not seem to have been done by the respondent."
24. In State of Punjab & others versus. Col. Kuldeep Singh, AIR 2010 SC 1937, the Hon'ble Supreme Court held that Article 14 of the Constitution of India does not envisage for negative equality and is not meant to perpetuate illegality or fraud. Article 14 of the Constitution has a positive concept. Equality cannot be claimed in illegality and therefore, cannot be enforced by a citizen or Court in a negative manner. If an illegality and irregularity has been committed in favour of an individual or a group of individuals or a wrong order has been passed by a judicial Forum, others cannot invoke the jurisdiction of ::: Downloaded on - 14/12/2017 23:10:09 :::HCHP 22 higher or superior Court for repeating or multiplying the same irregularity or illegality or for passing wrong order. A wrong .
order/decision in favour of a particular party, does not entitled any other person to claim benefit on the basis of wrong decision. It is apt to reproduce para 14 of the judgment, which reads thus:-
"14. Thus, even if some other similarly situated persons have been granted some benefit inadvertently or by mistake, such order does not confer any legal right on the petitioner to get the same relief. (Vide Chandigarh Administration & Anr. V. Jagjit Singh & Anr., AIR 1995 SC 705 : (1995 AIR SCW 493); Smt. Sneh Prabha Vs. State of U.P. & Ors., AIR 1996 SC 540: (1995 AIR SCW 4449); Jalandhar Improvement Trust Vs. Kameshwar Prasad Singh & Anr., AIR 2000 SC 2306 : (2000 AIR SCW 2389); Union of India & Ors. Vs. Rakesh Kumar, AIR 2001 SC 1877: (2001 AIR SCW 1458); Yogesh Kumar & Ors. Vs. Government of NCT Delhi & Ors. AIR 2003 SC 1241:(2003 AIR SCW 1630); Union of India & Anr. V. International Trading Company & Anr, AIR 2003 SC 3983: (2003 AIR SCW 2828);
M/s Anand Button Ltd. Vs. State of Haryana & Ors. AIR 2005 SC 565; (2005 AIR SCW 67); K.K. Bhalla Vs. State of M.P. & Ors. AIR 2006 SC 898: (2006 AIR SCW 345); and Maharaj Krishan Bhatt & Anr. Vs. State of Jammu & Kashmir & Ors. (2008) 9 SCC 24) : (AIR 2009 SC (Supp) 615 : 2008 AIR SCW 5421)."
25. Recently, the Hon'ble Supreme Court in Kulwinder Pal Singh and another versus State of Punjab and others (2016) 6 SCC 532 after noticing the aforesaid decisions observed as under:-
"16. The learned counsel for the appellants contended that when the other candidates were appointed in the post against de-reserved category, the same benefit should also be extended to the appellants. Article 14 of the Constitution of India is not to perpetuate illegality and it does not envisage negative equalities. In State of U.P. And Ors. v. Rajkumar Sharma and ::: Downloaded on - 14/12/2017 23:10:09 :::HCHP 23 Ors. (2006) 3 SCC 330, it was held as under: (SCC p.337, para
15) .
"15. Even if in some cases appointments have been made by mistake or wrongly that does not confer any right on another person. Article 14 of the Constitution does not envisage negative equality, and if the State committed the mistake it cannot be forced to perpetuate the same mistake. (See Sneh Prabha v. State of U.P. (1996) 7 SCC 426; Secy., Jaipur Development Authority v. Daulat Mal Jain(1997) 1 SCC 35; State of Haryana v. Ram Kumar Mann(1997) 3 SCC 321; Faridabad C.T. Scan Centre v. D.G., Health Services (1997) 7 SCC 752; Jalandhar Improvement Trust v. Sampuran Singh (1999) 3 494; State of Punjab v. Dr. Rajeev Sarwal (1999) 9 SCC 240; Yogesh Kumar v. Govt. of NCT, Delhi (2003) 3 SCC 548; Union of India v. International Trading Co. (2003) 5 SCC 437 and Kastha Niwarak Grihnirman Sahakari Sanstha Maryadit v. President, Indore Development Authority (2006) 2 r SCC 604.)"
Merely because some persons have been granted benefit illegally or by mistake, it does not confer right upon the appellants to claim equality."
26. Two wrongs cannot make one right. Moreover, the concept of equality is a positive concept which cannot be enforced negatively. Further, even if it is assumed that some decision was taken by the respondents, even then an incorrect decision cannot be made foundation and basis for asking the Court to take similar view inasmuch as the parity is not extendable qua illegal acts.
27. As a last ditch effort, the learned counsel for the petitioner would vehemently argue that both the authorities below have failed to take into consideration that no doubt there is encroachment, but same is only in the form of roof projection and cannot, therefore, be treated as encroachment as these projections have been raised to protect the property of the petitioner on account of constraints existing on the spot.
28. Even, this plea cannot be accepted for the simple reason that the encroachment as found on the spot is not by way of projections as is alleged by the petitioner but is in the form of actual built up area, ::: Downloaded on - 14/12/2017 23:10:09 :::HCHP 24 as is clearly evident from the records of the case and further corroborated by the report of the Local Commissioner (supra).
.
29. In addition to that, it may be observed that the petitioner himself has not seriously disputed the encroachment because in the response filed to the report of the Local Commissioner, it was only prayed that as per existing instructions, an owner can cover 80% of the total area. Even, this plea of the petitioner cannot be accepted in view of the authoritative pronouncements of the Hon'ble Supreme Court on the subject as it is settled principle of law that rules, regulations, application on the date of sanction, will apply (Refer: Commissioner of Municipal Corporation, Shimla versus Prem Lata Sood and others (2007) 11 SCC 40, Union of India and others versus Indian Charge Chrome and another (1999) 7 SCC 314, Kuldeep Singh versus Govt. of NCT of Delhi (2006) 5 SCC 702.
30. In view of the aforesaid detailed discussion, there is no merit in this petition and the same is accordingly dismissed, leaving the parties to bear their own costs. Pending application, if any, also stands disposed of.
31. However, before parting, this Court cannot ignore that the encroachment/illegal construction of this magnitude could not have been possible unless and until there was active support and/or connivance of the officials of the respondents, more particularly, those who were entrusted to oversee and ensure that no encroachment/ unauthorized construction is carried out. Therefore, the respondents are directed to hold an inquiry within six months and fix responsibility and report compliance before 18th June, 2018 and for this purpose the case be listed before the Court on 18th June, 2018. ::: Downloaded on - 14/12/2017 23:10:09 :::HCHP 25
32. Needless to observe, the mere fact that some of the Officials/Officers have retired or are no longer in the services of the .
respondents, shall not come in the way of holding such inquiry against such Officials/Officers.
( Tarlok Singh Chauhan), th 14 December, 2017. Judge.
(krt)
r to
::: Downloaded on - 14/12/2017 23:10:09 :::HCHP