Uttarakhand High Court
Ganga Beach Resort vs State Of Uttarakhand And Others on 16 November, 2017
Bench: K.M. Joseph, V.K. Bist
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Writ Petition (M/S) No. 740 of 2011
Ganga Beach Resort, Tapovan .......... Petitioner
Versus
State of Uttarakhand and others .......... Respondents
Mr. R. Venkataramani, Senior Advocate assisted by Ms. V. Vijayalakshmi, Advocate
and Mr. Ramji Srivastava, Advocate for the petitioner.
Mr. Rajeev Singh Bisht, Brief Holder for the State of Uttarakhand/respondent nos. 1 &2.
Ms. Puja Banga, Advocate for respondent no. 3.
Dated : 16th November, 2017
Coram: Hon'ble K.M. Joseph, C.J.
Hon'ble V.K. Bist, J.
K.M. Joseph, C.J. (Oral) Petitioner has approached this Court seeking the following reliefs:
"a) to issue a Writ, order or direction in the nature of certiorari quashing the order dated 19.04.2011 passed by the Respondent No. 1 (as contained in Annexure - 1), order dated 10.02.2011 passed by the Respondent No. 2, (as contained in Annexure -2) and order dated 10.02.2008 passed by the Respondent No. 3 (as contained in Annexure -3).
b) to issue a writ, order or direction in the nature of mandamus commanding the Respondent No. 3 to consider the applications for compounding moved by the petitioner (Annexure - 6) and order dated 05.06.2010 (Annexure -4) be modified holding that the structure measuring 10 ft X 15 ft. is capable of compounding."
2. The case, as set forth in the writ petition, in brief, is as follows:
One Shri Suchendra Hariyal submitted a plan for sanctioning construction of HSS Resorts before the third respondent (Haridwar Development Authority through its Secretary). Vide order dated 05/07.08.1996, the plan was sanctioned by the third respondent. The entire structure was made before the year 1998. The construction was completed as per the sanctioned map by 07.04.2001 within the time given by the 2 sanctioning authority. The petitioner purchased the aforesaid property in the year 2004; it is named as Ganga Beach Resort. The Resort and the land underneath belong to the petitioner. Thereafter, it is stated in paragraph no. 5 of the writ petition as follows:
"5. That it is stated that the ground level of the Resort is at a height of 130 ft. from the water level of River Ganga and therefore to give strength to the Resort, there were two options either to construct a retaining wall or to construct a RCC structure. Since there were number of natural springs, therefore it was not advisable to construct retaining wall and keeping in view of geographical situation, RCC structure was made to give strength to the Resort. RCC structure were raised constructing columns of 5', 12', 12', 12', 12' and 15' in height by putting RCC Slabs between each of the columns as RCC slabs have much more load bearing capacity then the retaining wall. This RCC structure is not being used for the purpose of Resort/ Hotel but is meant for the purpose of giving strength. This RCC structure was made before 1998.
Next, it is stated that the third respondent, on the basis of an ex parte order dated 10.02.2008 (it may be noticed, it is one of the impugned orders in this case) coupled with an ex parte report of the Junior Engineer held that the petitioner had made unauthorized construction in an area of 102 Ft. X 15 ft. by raising RCC columns. The said order was passed ex parte without affording any opportunity to the petitioner. The petitioner filed an appeal before the second respondent, who is shown as the Chairman/Commissioner, Garhwal Mandal, Pauri Garhwal. Next, it is stated that the petitioner filed applications for compounding of the alleged unauthorized construction vide Annexure No. 6. The applications are stated to be dated 01.08.2008 and an undated application. They were decided by the third respondent by order dated 05.06.2010. The third respondent while allowing the compounding application had imposed compounding fees, development and other charges amounting to Rs. 13,47,754,/-, which was deposited by the petitioner. It is stated, in fact, that the entire construction has been completed prior to the year 1998; it was wrongly observed that only 75 per cent of the construction has been completed. It is stated that legal opinion and technical report was sought from the department and the third respondent placed reliance on the report of the JE/AE. The statement 3 that the construction was in variance of the sanctioned plan was wrong, besides vague. The appellate authority decided the matter against the petitioner. Petitioner filed Annexure No. 7-Revision impugning the order dated 10.02.2008 and the order dated 10.02.2011 passed by the appellate authority as also the order passed on the compounding application dated 05.06.2010. There is reference to a Public Interest Litigation. Thereafter, it is pointed out that the Revisional authority also passed an order against the petitioner and it is on these allegations, inter alia, that the petitioner is before us seeking the reliefs, which we have noticed.
3. Counter affidavit was filed, wherein, it is, inter alia, stated as follows:
"4. That before giving a parawise reply to the writ petition the answering deponent would like to state certain facts which are as under that the petitioner is the subsequent purchaser of the aforesaid resort from Mr. Surendra Hariyal and Shalini Hariyal in whose favour the Map was originally sanctioned in the name of HSS Resorts vide sanction no. 23/96-97 dated 6/8/96 on land bearing Khasra no. 268/293 located at Tapovan Sarai Rishikesh as per the bye laws and after due verification of the ownership of the land in question. It is necessary to mention here that the sanction so given was valid up to 7/1/2001. That at the time when the sanction was given to the HSS resort there was no prohibition on raising of construction within 200 metres from the bank of the river Ganga however subsequently a Government notification dated 23/8/98 was issued vide which a restriction was placed on the commercial constructions within the area of 200 metres from the bank of the Ganges, however exceptions have been made in the cases of maths ashrams and temples. A copy of the aforesaid Government order is being filed herewith and marked as Annexure no 1 with this affidavit. That the present construction which has been illegally raised by the petitioner has been raised in the year 2006-2007 with regard to which no previous sanction was sought from the Development authority in violation of the said Government order and only part of it is compoundable and the rest is liable to the demolished.
8. That the contents of para 3 as stated are not are not admitted and hence denied and in reply to the same the answering deponent states that the same are incorrect the correct factual position is that The map for sanction of Mr. Surendra Hariyal and Shalini Hariyal on behalf of HSS resorts had been sanctioned vide sanction no23/96-97 on land bearing khasra no. 268/293 situvated at Tapovan sarai Rishikesh Tehri Garhwal as per the building byelaws after due verification of 4 the ownership of the land in question on 6/8/96 which was valid till 7/1/2001.
11. That the contents of para 6 are not admitted hence denied and in reply to the aforesaid para of the writ petition it is being submitted that against the construction of the RCC pillars/columns raised by the petitioner a spot inspection was made and thereafter notices were issued to the petitioner under sections 27 and 28 of the U.P. Urban Planning Act and were served on the petitioner on 22/9/06 and an opportunity was hearing was given to the petitioners for being heard.
13. That the contents of para 8 of the petition are not admitted hence denied. That in reply the deponent would like to state that on the basis of the technical report received from the assistant engineer dated 6/7/2007 and the report of the Junior engineer on 22/4/2010 the compounding of the construction raised by the petitioner was done on the application made by him to this effect. According to the aforesaid reports the petitioner had made deviations from the sanctioned map and the same was compoundable in accordance with the building bye laws. The vice Chairman of the development authority passed the order on 5/6/2010 holding that the construction which deviated from the sanctioned map was not compoundable and had to be demolished and even the construction which had been raised in 2006 was not compoundable had to be demolished and has been shown in yellow colour in the map so sanctioned and for the part which was compoundable a compounding fee of 13,47,754 rupees has been imposed and the petitioner had been asked to deposit the same. It is to be stated here that the part of the construction was compounded on the condition that the non compoundable part of the construction shall be removed by the petitioner on his own and he would inform the respondent authority of having demolished it within fifteen days. That the petitioner also gave an affidavit stating therein that he himself would remove the aforesaid construction illegally raised by him, which is being annexed herewith and marked as Annexure no 2 to this affidavit.
25. That contents of para 24 of the petition as stated are not admitted hence denied and the respondent submits that the government order dated 23/9/2003 imposed a bar on raising a construction within the area of 200 metres from the bank of the river Ganga the construction raised by the petitioner is after the issuance of the aforesaid order in 2006- 2007 and therefore was not compoundable."
4. Petitioner filed rejoinder affidavit wherein, it is, inter alia, stated as follows:
5"5. That the contents of paragraph no. 4 of counter affidavit are not admitted as stated. In reply thereof it is submitted that the earlier property in question belongs to one Sachnedra Hariyal and Shalini Hariyal who had applied for sanction of plan for resort under the name and style H.S.S. resort, the aforesaid plan was sanctioned by the Haridwar Development Authority vide sanctioned no 23/1996-1997 dated 6.8.1996 on the property in question, subsequently the aforesaid property was purchased by Sanauwar Ali, Iftiqar Ali and Zulfikar Ali, who further sold the aforesaid property to the petitioner vide duly registered sale deed dated 4.6.2004. It is also submitted here that the aforesaid sanctioned plan was valid upto 7.1.2001 meaning thereby the construction was to be completed prior to 7.1.2001. Accordingly, the construction was completed by earlier owner of the property. It is also submitted here that after the sale deed the petitioner has changed the name of aforesaid resort as "Ganga Beach Resort". It is further pertinent to mention here that the entire construction including parking was constructed by earlier owner prior to validity of sanctioned plan i.e. 7.1.2001. It is also pertinent to bring on record that since the parking which was constructed by earlier owner was not proper therefore the petitioner renewed the same, it is further submitted here that the petitioner subsequently also applied for compounding regarding the parking vide application dated 1.8.2008, which was decided by the answering respondent vide order dated 5.8.2008 and in lieu therefore the petitioner has deposited compounding fees before the Haridwar Development Authority amounting Rs. 13,47,754. It is further pertinent to bring on record that the entire construction was completed prior to 1998 by earlier owner. It is absolutely wrong to say that the petitioner has raised construction in year of 2006-07 the said allegations made by the answering respondent without being any material or evidence on record. So far the Government Order dated 23.8.1998 referred in paragraph under reply is concern the same is matter of record however the petitioner humbly submits here that the said Government Order is not applicable in the present case for the reason that the entire construction was raised prior to 1998 and secondly the said Government Order stated that after issuing of the aforesaid government order the development authority was restrained to sanction any plan for constructions of any building within 200 meter of bank river Ganga.
9. That the contents of paragraph no. 8 of counter affidavit wrongly mentioned as paragraph no. 10 of the counter affidavit not admitted as stated, In reply thereof the contents of paragraph no.5 of writ petition are reiterated and reaffirmed. It is further submitted that the entire structure of building was 6 one unit and same was constructed at one stretch as such the averment made in paragraph under reply that an area of 15x102 feet as well R.C.C. columns have been constructed subsequently without being any sanctioned plan by authority are against the true facts, it is further submitted here that so far the spot inspection referred in paragraph under reply is concern the same was an ex parte inspection and it was made by the Assistant Engineer of Haridwar Development Authority behind the back of the petitioner."
5. After the matter was heard for some time, the petitioner filed a supplementary affidavit. Therein, it is, inter alia, stated as follows:
"3. That it is humbly submitted here that in the impugned orders it has been mentioned that the petitioner has been given at least nine notices on the different dates whereby the petitioner was directed to stop the construction of the building forthwith. The said fact is contrary to the records, the petitioner had applied for copies of the said notices under RTI Act 2005 which were furnished to the petitioner on 07.08.2007 by the respondent under RTI Act, 2005. From perusal of the notices it is clear that none of the notices had ever been served to the petitioner personally and moreover the said notices in fact is not a notices in true sense in fact same are summons/notices to appear to the petitioner before HDA for contesting/submitting his defense in the case mentioned therein. It is also submitted here that out of the aforesaid nine notices two have alleged to be received by Shri Sunil Sharma Manager of the hotel and one Gopal, the aforesaid Sunil Sharma was the then Manager of the hotel however, the Gopal was IV Class Employee of the Hotel therefore, it was totally wrong to say that the petitioner was stopped to raise construction of the building by issuing nine notices. It is also submitted here that the statutory Authority and proceeding under the Act is Quasi Judicial in nature therefore, the respondent should have affected proper service of the notices as prescribed under the law but they have failed to do so therefore, finding recorded by the respondent to this effect is contrary and against the material on record. The copy of all the nine notices received under RTI Act 2005, with English translation are collectively being filed herewith and marked as Annexure No.S.A. 1 to this affidavit.
6. That after coming to the knowledge of the order dated 05.06.2010 (Annexure no. 4 to the writ petition) the petitioner had filed a review application on 16.10.2010 alongwith affidavit with the prayer that since no specific reason was assigned for not compounding the yellow colour part mentioned in the revised map therefore, order may be recalled and pass a fresh order in accordance with law. Also to the best 7 knowledge of the petitioner the respondent had not passed any order on the aforesaid review application dated 16.10.2010. However, the respondents have considered the review application of other persons having similar case and passed a fresh order on their review application and compounded their respective buildings in Case No. MAN./RISHI SW-
14/22/2013-14 Shri Devendra Vigyani and Case No. MAN./HARI/RS-75/223/2015-16 Pawan Kumar, manager Prem Nagar Ashram, Haridwar. The copy of the application dated 22.12.2010 supported by affidavit alongwith English Translation is being filed herewith and marked as Annexure No. S.A 3 to this affidavit.
6. A supplementary counter affidavit was filed in reply to the supplementary affidavit wherein it is, inter alia, stated as follows:
"5. That the contents of Para 3 of the Supplementary Affidavit are not admitted in the manner in which they have been stated. In reply it is being respectfully submitted that A showcase notice under section 27 of the Urban planning and Development Act of 1973 was served upon the Employee of the Petitioner dated 22/9/2006 on the spot where the unauthorized construction was being carried out. Thereafter a notice dated 7/8/2007 was served upon the manager of the Ganga Beach Resort and it was thereafter that order of demolition dated 10/2/2008 was passed.
6. That an application for Compounding duly signed by the Executive, Ganga Beach Resort Shestrdhara Tapovan Rishikesh was filed on 1/8/2008, signed by the petitioner himself along with a Compounding Map. Another application was also received by the answering authority after the aforesaid application which was dated 01/08/2008 on 18/5/2009 and during the compounding of the Construction in deviation of the sanctioned plan opportunity of hearing was given to the petitioner. Therefore it is wrong on the part of the Petitioner to allege at this stage that notices have not been properly served by the respondents upon the Petitioner.
7. That the contents of para no. 4 of the Supplementary Affidavit are not admitted in the manner in which they have been stated. Facts correctly stated are that the Petitioner had presented an affidavit dated 20/4/2010 before the respondents in which he had undertaken to demolish the non-compoundable portion marked and shown in the colour yellow, on his own accord. The petitioner has enclosed a list of 10 persons having raised construction had applied for the Compounding of the Construction in violation of the sanctioned compounding maps/plan and had given affidavits to the effect that they would remove the non compoundable part of the Construction 8 on their own. However out of the 10, persons three of them namely notice No. Notice/Rishi./28/2017-18, Notice/Rishi./ 08/ 2016-17 and Notice/Rishi./101/2016-17 to have not given affidavits. Thus facts have not been correctly stated by the petitioner. Further Compounding has been done in accordance with the Compounding of offences byelaws of 1996 and the provisions there under. In a situation where the applicant after undertaking to demolish the non compoundable portion does not do so within the prescribed time. Then the same is done by the Development Authority and the cost of the demolition is recovered from the concerned applicant and this is why an affidavit is required to be filed by the applicants when applying for the Compounding of their construction as per the byelaws. That in the present case the Petitioner had given an affidavit undertaking to remove the non compoundable construction on his own and the Compounding process stood completed thus no new compounding can be made. The order dated 5/6/2010 under section 32 of the Uttarakhand (U.P.) Urban Planning and Development Act, 1973 is clear and final and in such circumstances there is no alternative but the demolition of the non compoundable portion of the Construction.
9. That the contents of para 6 of the Supplementary Affidavit are not admitted hence denied. That the answering respondent has no power to review an order passed by it. The Petitioner has cited the example of construction made by Devendra Vigyani Map no. rishi/SW/14/22/2013-14 and of Pawan Kumar Prem Nagar Ashram Haridwar map no-75/223/2015-16, however in this matter Mr. Devendra Vigyani had applied for an amendment to the Compounding map and it was sought to compound the portion in deviation of the sanction map and to further grant sanction for the rest of the Construction. It is incorrect to state power of review had been exercised. Similarly there was no power of review exercised in the case of Mr. Pawan Kumar as well even though a review Application had been moved on 22/12/2010 against order of demolition and appeal was pending before the Commisioner. There is no power to the authority to review it's orders."
7. We heard Mr. R. Venkataramani, learned senior counsel assisted by Mr. Ramji Srivastava, learned counsel on behalf of the petitioner, Mr. Rajeev Singh Bisht, learned Brief Holder on behalf of the State of Uttarakhand/respondent nos. 1 and 2 and Ms. Puja Banga, learned counsel on behalf of respondent no. 3.
98. Mr. R. Venkataramani, learned senior counsel on behalf of the petitioner would submit that actually this is a case where the construction was completed on the basis of sanctioned plan before the petitioner has purchased the property in the year 2004. He would reiterate the contents of paragraph no. 5 of the writ petition, which we have extracted, namely, that the RCC structure had to be put up on the basis that it was the only choice available, having regard to the topography of the area. He would, in fact, submit that the RCC structure was completed prior to the purchase of the property by the petitioner. He would submit that as far as the order passed in the application for compounding is concerned, this is a case where the authorities have not borne in mind the monolithic nature of the structure; they have mechanically applied the provisions contained in the bye-laws made under Section 57 of the Uttar Pradesh Urban Planning and Development Act, 1973 (hereinafter referred to as the "Act"). In fact, he drew our attention to Section 27 of the Act. Section 27 of the Act clothes the authority with the power to order demolition of a building, where any development has been commenced or is being carried on or has been completed in contravention of the master plan, among other things. Section 32 of the Act being material to appreciate the arguments addressed before us is extracted as follows:
"32. Composition of Offences.--(1) Any offence made punishable by or under this Act may either before or after the institution of proceedings, be compounded by the [Vice- Chairman] (or any officer authorised by him in that behalf by general or special order)], on such terms, including any terms as regards payment of a composition fee, as [the Vice Chairman) (or such officer) may thinks fit.
(2) Where an offence has been compounded, the offender, if in custody, shall be discharged and no further proceedings shall be taken against him in respect of the offence compounded."
9. Section 55 of the Act provides power with the Government to make Rules. Section 56 of the Act provides power to make Regulations with the authority. Section 57 of the Act provides for power to make bye-laws. Section 57 of the Act insofar as it is material to our case consist in Clauses
(a) (b) and (bb). It reads as follows:
10"57. Power to make bye-laws.- The Authority may, with the previous approval of the State Government, make bye-laws consistent with this Act and the rules made thereunder, for carrying out the purposes of this Act in respect of any matter affecting the general public, and without prejudice to the generality of this power, such bye-laws may provide for--
(a) the form in which any application for permission under sub-section (1) of Section 15 shall be made and the particulars to be furnished in such application;
(b) the terms and conditions referred to in Section 16, subject to which the user of lands and buildings in contravention of plans may be continued;
(bb) the guiding principles for composition of offences under Section 32;
10. The English translation of the bye-laws relating to compounding have been made available to us. We deem it necessary to advert to the same. It reads as follows:
"Relating to Procedure for compounding of crimes Concerning un-authorised constructions By-laws for compounding of development authority Crimes 1996 Short name and commencement-
1. (1) These by-laws shall be called as Haridwar Development Authority Compounding of Crimes, 1996.
(2) It shall expand up to entire Haridwar development area. (3) These by-laws shall be applicable w.e.f. 22.8.1997.
Removal of Crimes: -
2. Under the U.P. Urban Planning and Development Act, 1973, before institution of any compounding activity, the action can be taken only by the Vice President, Haridwar Development Authority or any officer authorized by him under Section 32 of the Act.
3. The compounding of the crime shall be made provided the order giving order relating to destruction of illegal construction, development work/aforesaid crime, which shall not extend beyond 15 days, or/else the Development Authority shall be free to take action for re-prosecution.
Refusal to licence or giving licence.
4. (1) In case of refusal of compounding of illegal constructions or development works, the Vice President, 11 Development Authority or any other Officer nominated by him under the special orders shall ensure that: -
(a) Whether any construction has been made on the basement, semi-basement, ground floor, first floor, upper floors and its effect on the total area?
(b) Whether the construction in basement has been made more than the chair area, if so its effect?
(c) Whether the permission has been refused in the past, if so its effect?
(d) Whether the existing construction is adverse to the building line, if so its effect?
(e) Effect on the existing services and the enclosed properties due to construction of basement?
2. The following offences shall not be compounding: -
(A) If the construction has been made on the public or government land without permission of the competent officer? (B) Crime is related to such construction which is adverse to the land use mentioned in big plannings or regional plannings? (C) Crime is related to the part come out of such government or public land wherefor no permission has been obtained from the concerned department.
4. In case of making construction more than the sanctioned land or the land area or making construction in case of set back, the process of mitigation shall be made to the following extent and after mitigation, the approval of Map shall also be mandatory. This way, the compounding of construction shall be admissible in case of continuity of main building only: -
(a) 40 percent of the front setback but maximum 15 cm.
construction shall be non-compoundable.
(b) In case of backside setback, area till 10 percent of sanctioned proposal shall be compoundable.
(c) In case of partial setback, the area till 25 percent shall be compoundable.
(d) In group housing, commercial and office construction plannings, apart from land-desired, the un-authorized construction shall be compoundable only till 10 percent of the land sanctioned.
(e) Apart from the ratio of all constructions, the un-
authorized construction shall be compoundable only till 10 percent limit.
List of Compounding Fee: -
5. For compounding of various types unauthorized construction/ development works, the same amount would be chargeable 12 which has been prescribed in the List. Sanctioning of Map after compounding shall be mandatory.
6. In a matter which comes under more than one compoundable constructions, then the compounding fee shall be charged after adding the compounding fee for each category.
7. After the compounding of illegal construction, the compounding fee and the amount for sanction of questioned construction shall be deposited by the Constructor which has been prescribed by the Authority for sanction of Map. Only thereafter the process for sanction of Map shall be undertaken.
8. Under the Law, after sanctioning of Map, the process initiated u/s 27 shall come to an end. If any order for demolishing the compounded area, that shall be termed as an end. For remaining illegal construction which has not been compounded, that shall be removed by the constructor at its own expenses else the same shall be demolished by the Development Authority and the expenses incurred thereon shall be recovered from the constructor.
Compounding: -
9. Under Rule 7, on depositing the charged fee shall be recovered from the constructor either in lump sum or with interest or in such conditions as is prescribed by the competent authority and only after deposit of entire amount, the procedures shall be deemed to an end. On depositing the certain amount with interest, separate rule can be created by the Authority for depositing the fee. Conditions for sanction of building map shall also be mandatory mentioned.
10. Such illegal constructions which have been compounded, shall be indexed in a prescribed format and the same shall be produced before the next meeting of Development Authority in a joint statement for its information.
11. Disposal of applications concerning compounding shall also be made as per the provisions of these by-laws.
12. Compounding fee imposed under Rule 2 and 7 and the recovery of expenses incurred by the Authority shall be recovered as per Rule 40."
11. Learned senior counsel for the petitioner would submit that the authorities have not appreciated the facts relating to the construction properly. The matter has been done in a mechanical manner. He would pose the question as to whether the authorities have actually found out whether any part of the building has been put up contrary to the sanctioned plan. In fact, it is his case that the construction has been completed and that too by his predecessor in interest in conformity with the sanctioned plan. He would 13 further draw support from the words of Section 32 of the Act, which we have extracted and would contend that thereunder, it is open to the authorities, on such terms including any terms regarding the payment of composition fee as it may think fit, to deal with composition of offences. This argument, we understand as meaning that notwithstanding the bye- laws, which have been made, they cannot act as a fetter on the power, which is available with the competent authority to deal with any case not mechanically in terms of the bye-laws, but to deal with it on the special terms, which they present before the authority and this is exactly a case, which should have been dealt with under the vast powers available under the provisions of Section 32 of the Act. A statutory discretion cannot be fettered by the authority. In this regard, he drew our attention to the judgment of the Hon'ble Apex Court in the case of Shri Rama Sugar Industries Ltd. Vs. State of Andhra Pradesh and others reported in (1974) 1 Supreme Court Cases 534. He also drew our attention to the Administrative Law by Shri C.K. Thakker and we may notice the following in fettering discretion under that:
"(2) Fettering Discretion A version of non-application of mind by an authority in exercising its discretion also arises when the authority imposes fetters on its discretion by announcing some policy to regulate the exercise of its discretion and seeks to apply the same in an inflexible and rigid manner to all cases coming before it for decision irrespective of the merits of an individual case. This is called fettering discretion. This is self-imposed restraint by the authority on the exercise of its own discretion, and is regarded as invalid in Administrative Law. The reason is that when a statute confers discretionary power on an authority, it is expected that it would decide each and every case on its own merits, and not fetter its discretion by adopting an inflexible standard to be followed by it uniformly in all cases. What is expected of the authority is that it should consider each case on its merits and then decide it one way or the other. If, instead, it lays down a general policy to be applicable in each and every situation, then it is preventing itself from exercising its mind according to the circumstances of each case and this amounts to fettering its discretion which is going against what the statute had intended the authority to do.
The principle is well settled in England that fettering discretion by adopting a rigid policy and exercising its discretion accordingly is wrong. A general policy may, 14 however, be adopted but each case should still be decided on its merits; each case is to be considered to see whether the general policy is applicable to it. The question will have to be considered whether, on the facts of the particular case, there is enough to take it out of the general policy which the authority concerned may have laid down. The administrator concerned must not "shut his ears" to an applicant who wishes to represent why his case is exceptional. A few English cases may be cited here to illustrate the point.
As stated earlier, one of the reasons for conferring discretion on an authority through a statute is that the problem is such that it is not possible to reduce the matter within the four corners of a rule. If, therefore, an authority attempts to lay down an inflexible policy, it goes against this premise. It needs to be emphasized here that the principle that 'discretion ought not to be fettered' does not really mean that an authority may never lay down some general policy for guidance in exercising its discretion, even though the statute itself may have failed to do so. Whenever possible, the authorities should be encouraged to lay down some norms to regulate the exercise of their discretion and, thus, structure their discretion. In fact, in some situations, it may be advisable for an authority to do so if it is to discharge its functions efficiently, e.g., when the authority has to dispose of a large number of cases of one and the same type; or where under a statute cases have to be disposed of by multiple authorities of the same rank. In such circumstances, general policy will achieve consistency, predictability, coordination and uniformity of approach in similar fact, situations. And this may be necessary for effective administration. In India, the courts themselves have insisted in some cases that the authority should lay down some guidelines or criteria for exercising its broad discretion, the reason being that under Art. 14, absolute discretion is bad. Reference may be made in this connection to the cases noted below. There are cases where the courts have frowned upon deviations from guidelines issued to regulate discretion. The reason is that unregulated discretion leads to arbitrary decisions.
Thus, laying down a policy or guidelines to regulate its discretion is not ipso facto invalid. When such guidelines have been laid down, be courts have in some cases gone into the question whether a government decision is inconsistent with the guidelines laid down and hence invalid or not.
It needs to be pointed out that while adoption of a policy by an authority may not be bad for the exercise of discretion vested in it, the authority ought not to refuse to consider the merits of an individual case despite the policy."
1512. Learned senior counsel for the petitioner would submit that in the very nature of the present case, the authority should have appreciated that the bye-laws, as such, cannot be applied. Expatiating, he would contend that if the order passed in the compounding application is allowed to stand, the inevitable result would be that the entire structure would have to be demolished. He would submit that the structure was put up only having regard to the perceived need, which was imperative in nature to protect the entire structure by putting up the RCC structure. He also does not fail to remind us that the structure was put up by the predecessor in interest. He would submit that the authority should have considered that in the facts presented in the instant case, to apply the 75 per cent theory as it has done for the purpose of carrying out regularization would not be a fair and just approach. He would impress upon us a subsequent development, which took place in the form of the Uttarakhand Building Bye-Laws and Regulations, 2011 (amendment brought about in the year 2016). He would submit that under the same, a more favourable treatment has been accorded to the builders in the matter of F.A.R. He would submit that there is no reason in law not to apply the beneficial provisions contained in the same to the facts of this case and in this regard he did attempt to draw support from the following case law:
1. AIR 1928 PC 128 - Municipal Council of Sydney Vs. Margaret Alexandra Troy.
2. (1964) 6 SCR 837 - Memon Abdul Karim Vs. Deputy Custodian General.
3. (1964) 6 SCR 876 - Rafiquennessa Vs. Lal Bahadur Chetri.
4. (1966) 2 SCR 34 - Union of India Vs. Sukumar Pyne.
5. (1975) 1 SCC 192 - Boucher Pierre Andre Vs. Superintendent, Central Jail, Tihar, Delhi.
6. (1996) 1 All. Er 914 - Chan Chi-Hung Vs. R.
7. (1999) 2 SCC 543 - Mathew M. Thomas Vs. Commissioner of Income Tax.
8. (1998) 5 SCC 332 - Sasikala Bai Vs. State of Maharashtra.16
9. (2002) 4 SCC 306 - N. Parameshwaran Pillai Vs. Union of India.
13. Learned senior counsel for the petitioner would next contend that the Court may also bear in mind the Rulings of the Hon'ble Apex Court in the case of Narendra Kumar Maheshwari Vs. Union of India and others reported in 1990 (Supp) SCC 440, Foreshore Cooperative Housing Society Limited, Bombay Vs. Nivara Hakk Surakhsa Samiti, Bombay and others reported in (1991) 2 SCC 75. These authorities are cited before us for the proposition that a departure from the guidelines cannot be a matter of such moment that it would fatally affect the matter and, therefore, there can be no reason for the authorities not to consider the issue with the vast powers available to it under law. He would further submit that the construction did not fall foul of the Government Order, which proscribed construction within 200 metres of river Ganga. It is the finding by the authority that the construction, which is made in the year 2007, had contravened the terms of the Government Order, which prohibited construction activities within 200 meters except by certain groups. He also would complain before us that the respondents are seeking to bind the petitioner over by the terms of the affidavit, which he has filed. With reference to the contents of the supplementary affidavit, which we have adverted to, he would point out that the petitioner alone is being asked to demolish the construction in terms of the affidavit, whereas others who have filed the affidavits are allowed to go scot-free.
14. We are dealing with this matter within the four walls of judicial review. Therefore, the power which is available to us is not appellate in nature. We are concerned with the question relating to the legality of the orders passed essentially. In this case, we must notice certain features. In the body of the writ petition as filed by the petitioner, the petitioner has not referred to the notices issued by the authority about the construction of the RCC structure and calling upon him to put an end to it. Though, petitioner has a case that the construction in question has been made in accordance 17 with the sanctioned plan and by his predecessor in interest, we may notice the following findings by the appellate authority:
"6- It is clear from perusal of the documentary evidence available on the record of the lower court that the construction in question has been/is being undertaken by the appellant in violation of the approved drawing and within 200 m of the Ganga River bank. Despite issue of the orders at the level of the Authority for stoppage of the construction work by the appellant, the construction work has not been stopped by them. It clearly appears from the documents on record that the action has been taken regarding submission of information by the technical engineers of the Authority regarding the unauthorized construction and regarding stopping of the unauthorized construction by the Authority itself and also through the Supt of Police, Tihri. It is clear from the written arguments submitted in the court on behalf of the counsel for the appellant that the construction in question is within 200 m of the Ganga River bank. By not stopping the construction work by the appellant despite issue of the notice by the Hardwar Devleopment Authority under section 27/28, they have themselves invited the legal action taken against them for which they themselves are responsible."
15. The appellate authority, in fact, has rightly decided first to consider whether the construction was illegal. It is here that the finding at paragraph no. 6 of the appellate order assumes significance. The authority has found that the construction was in violation of the approved drawing and within 200 metres of the Ganga River bank. In fact, the case of the respondents itself is that as per the original sanctioned plan, the predecessor in interest was permitted to carry out construction of 13 cottages including 5 cottages of A type, 4 cottages of B type and in another blocks, the reception office and 2 shops on the ground floor and dormitory hall on the first floor. Construction of 13 cottages on the first floor and the second floor were approved. We would think that in the facts of this case, we may not be unjustified in taking the finding of the appellate authority as unassailable, namely, that the construction in question was in contravention of the sanctioned plan. We find reinforcement to this finding from the issuance of several notices, in fact, 9 in number, calling upon the petitioner to stop the construction, which was being carried out in the year 2006 or thereabouts. It 18 was, apparently, not paying heed to the notices and defying the same that the petitioner persevered with the construction.
16. Next, we notice that the petitioner has adverted to the compounding applications as dated 01.08.2008 and an undated application. The translation of the application dated 01.08.2008 reads as follows:
"Deputy Secretary, Hardwar Development Authority, Hardwar, Subject: - Application for compounding Sir, It is submitted that the holder Ganga Beach Resorts Tapovan in the district Tihri Garhwal has been constructed as per the drawing approved by the Department. The parking of the hotel has not been approved. This hotel and the parking was purchased by the applicant in July 2004. When the above-mentioned or there was purchased by the applicant, the drawing of the hotel was approved by the Department and the parking has also been constructed which was in a very dilapidated condition. The applicant has undertaken only the repair of the parking area. The construction of the parking was done for the vehicles of the tourists. The parking is not being used in the building etcetera. As per the government order number - 320/9 A - C
- 200 - 127 Camp/99 dated 05 February 2000, of the honourable High Court, the status quo should be maintained in respect of the construction which has already taken place.
Therefore, you are hereby requested that the unauthorized parking drawing should be compounded. I shall be highly obliged.
Thanking you.
Dated:01.08.2008 Applicant Enclosure: Hotel drawing for Ganga Beach Resorts Tapovan, Pauri, Garhwal Sd/- illegible Manager."
17. An undated application is also produced; but we find that in the order passed in the compounding application, there is reference made to an application of the year 2009. In fact, the terms of the said application are quite different from that which is produced before us as the compounding application. In this connection, it may not be inapposite if we also peruse 19 the second relief sought, which is that a direction be issued to consider the applications for compounding, which are only the applications dated 01.08.2008 and an undated application. In other words, apparently, the petitioner has given an application other than the applications, which is referred to in the writ petition. On the same, an order of compounding was passed. As part of the same, the petitioner has also given an affidavit to demolish a portion of the building, which was found beyond regularization. Petitioner succeeded in getting compounding done in respect of the part, which the authorities have found to be regularisable. Petitioner has paid the compounding fee and, thus, accepted the terms of the order passed in the compounding application. It is thereafter that the petitioner has approached this Court with the pleadings and reliefs as we have noticed.
18. We must now consider tenability of the contentions of the petitioner surrounding the seemingly wide powers available under Section 32. Section 32, undoubtedly, provides for power of composition, but we cannot turn a blind eye to the provisions contained in Section 57, which provides for power to make bye-laws. The argument of the learned senior counsel for the petitioner is that bye-laws are at the bottom of the pyramid of subordinate legislation and in that he would accord the lowest status to them in comparison to the Rules and the Regulations and, of course, the plenary legislation. We are unable to accept the attempt to belittle the status of a statutory bye-law by according to it the position in the rear as it were. A bye-law is a species of subordinate legislation; it is statutory in nature. A bye-law even if it be one, which sets out the guidelines, is bound to be followed by the authority. The reason for the same is not far to seek. Any attempt to dilute the rigour of a bye-law would be the surest way to open the doors to arbitrary and capricious action by the authorities themselves. The moment the Court countenances a plea that a bye-law can be departed from, it would axiomatically mean that authorities are blessed with the freedom to pick and choose, to act, in short, arbitrarily. The characteristic of the law is that the law-giver intends that the law will be enforced as regards those, who are covered by it, across the board and without allowing for any 20 freedom to pick and choose unless a law itself provides for the same. The binding nature of a statutory bye-law need not be adverted to as it is far too well settled. This may not be the position in regard to guidelines, which are not statutory in nature. We may, in this context, refer to the very decision, which has been relied on by the learned senior counsel for the petitioner, namely, Foreshore Cooperative Housing Society Limited, Bombay Vs. Nivara Hakk Surakhsa Samiti, Bombay and others reported in (1991) 2 SCC 75. The guideline in the said case was a non-statutory guideline. The Court proceeded, in fact, to hold so also in paragraph no. 2 as follows:
"2. In support of his petition, Shri Sebastian, learned Counsel for the writ petitioners raised four contentions.
The first contention was that the allotment of land to the Society was in violation of paragraph 11 of the guidelines issued by the Government for allotment of lands in the city of Bombay for housing purposes. He pointed out that under this paragraph the Collector was required to issue public notices regarding the availability of plots for allotment for housing purposes. Clause 4 of the guidelines provided for certain rules of priority in the matter of allotment and paragraph 7 required that the comparative merits of various applicants should be examined before any allotment was made. Learned Counsel submitted that the allotment to the Society was made without observing these salutary guidelines. The High Court pointed out that paragraph 11 relied upon by the learned Counsel itself contains an exception that the rule regarding prior publicity will not apply in cases where one or two plots are available for disposal in isolation and held that the present case falls under this exception. Learned Counsel submits that this finding of the High Court overlooks that this exception is not available in cases where, as here, a layout is prepared in accordance with the local development control rules making a number of plots available for disposal. He also submits that this was a case where more than two plots were allotted to the Society and that the exception is not attracted. So far as the first aspect is concerned, we may point out that though there is a reference to some layout, there is no material before us to conclude that a number of plots were allotted to various societies on the basis of a layout so prepared and that the allotment to the society is not a case of allotment in isolation. Though learned Counsel mentioned that allotment had been made to this Society as well as to a number of other societies of a vast area of land known as Queen's Barracks, no facts were placed on record before us or before High Court in support of this contention. On the 21 contrary the contention as urged before the High Court was only that in the present case what had been allotted to the Society "were not just two plots but also the strip of land abutting thereon'' and that, therefore, the exception does not apply. The High Court has pointed out that what was allotted to the Society was only two plots of land and that a part of abutting strip of land was allotted to the Society when it had been surrendered by a previous tenant on the land. The High Court came to the conclusion that, in the circumstances, the allotment to the society was basically of the two plots and that the allotment of the strip of land abutting thereon did not take the case out of the exception made in Rule 11 of the guidelines. We see no reason to interfere with this conclusion which is primarily one of fact. In particular we may point out that what is being challenged is not the violation of any statute or rule but only certain guidelines which, it has been repeatedly pointed out in judgments of this Court, are more or less broad policy considerations from which minor deviations are permissible if the circumstances justify the same. In our opinion, the reference to "one or two plots" in the guidelines is not to be construed rigidly. Since the High Court has been satisfied that this was not a case of allotment of a large number of plots but only two or even three plots in isolation, its conclusion that there is substantial compliance with the terms of the guidelines, does not call for any interference"
19. In the case of Narendra Kumar Maheshwari Vs. Union of India and others reported in 1990 (Supp) SCC 440 also, the Court was dealing with a guideline, which was not statutory in nature. We may notice the statement of law contained in Paragraph nos. 40 and 106. They read as follows:
"40. It appears that on October 9, 1984 pursuant to an application made by RIL for foreign collaboration with M/s Union Carbide Corporation, USA, the Government of India by its order of that date accorded approval to the terms of the foreign collaboration for a period of six months for this project. It further appears that on March 14, 1986 pursuant to an application made by RIL, the government accorded approval for foreign collaboration with M/s Scientific Design Company. It may, however, be mentioned that there was a letter dated April 30, 1986 whereby approval was granted by the Reserve Bank of India in respect of foreign collaboration agreement with M/s Scientific Design Co. USA."22
"106. It may, however, be stated that being not statutory in character, these guidelines are not enforceable. See the observations of this Court in G.J. Fernandez v. State of Mysore, [1967] 3 SCR 636: (Also see R. Abdullah Rowther v. State Transport Appellate Tribunal, (AIR 1959 SC 896); Dy. Asst. Iron & Steel Controller v. L. Manekchand, Proprietor, [1972] 3 SCR 1; Andhra Industrial Works v. CCI & E, [1975] 1 SCR 321; K.M. Shanmugham v. S.R.V.S. Pvt. Ltd., [1964] 1 SCR 809). A policy is not law. A statement of policy is not a prescription of binding criterion. In this connection, reference may be made to the observations of Sagnata investments Ltd. v. Norwich Corpn., [1971] 2 QB 614. Also the observations in British Oxygen Co. v. Board of Trade, [1971] AC 6 10. See also Foulkes' Administrative Law, 6th Ed. at page 181-184. In R. Vs. Secretary of State. Ex Parte Khan, [1985] 1 All E.R. 40, the court held that a circular or self made rule can become enforceable on the application of persons if it was shown that it had created legitimate expectation in their minds that the authority would abide by such a policy/guideline. However, the doctrine of legitimate expectation applies only when a person had been given reason to believe that the State will abide by the certain policy or guideline on the basis of which such applicant might have been led to take certain actions. This doctrine is akin to the doctrine of promissory estoppel. See also the observations of Lord Wilberforce in IRC v. National Federation, [1982] AC 617. However, it has to be borne in mind that the guidelines on which the petitioners have relied are not statutory in character. These guidelines are not judicially enforceable. The competent authority might depart from these guidelines where the proper exercise of his discretion so warrants. In the present case, the statute provided that rules can be made by the Central Government only. Furthermore, according to Section 6(2) of the Act, the competent authority has the power and jurisdiction to condone any deviation from even the statutory requirements prescribed under Sections 3 and 4 of the Act. In Regina v. Preston Supplementary, [1975] 1 WLR 624, it had been held that the Act should be administered with as little technicality as possible. Judicial review of these matters, though can always be made where there was arbitrariness and mala fide and where the purpose of an authority in exercising its statutory power and that of legislature in conferring the powers are demonstrably at variance, should be exercised cautiously and soberly."
In paragraph no. 107, in fact, the Court has brought out a distinction between different types of guidelines. In certain guidelines, it may deal with rights of parties and the Court has dilated upon the subtle distinctions, with 23 which we may not be, in fact, concerned. With reference to what is stated in paragraph no. 106, we only need to state that the Court has held that a policy is not law. Therefore, the statements contained in regard to fettering of discretion by enunciating a policy and failing to exercise discretion by a statutory authority cannot be applicable to a case where the policy has crystallized into a statutory provision.
20. We may notice the judgment of the Hon'ble Apex Court in the case of Shri Rama Sugar Industries Ltd. Vs. State of Andhra Pradesh and others reported in (1974) 1 Supreme Court Cases 534. Therein, the Court was dealing with a case under the Andhra Pradesh Sugarcane (Regulation of Supply and Purchase) Act, 1961. Section 21 of the said Act purported to clothe the Government with the power to grant exemption from payment of tax under Section 21(3). The case, in fact, revolved around Section 21(3)(b), which reads as follows:
"21. (1)..........
(2).........
(3) The Government may, by notification, exempt from the payment of tax under this section--
(a)........
(b) any factory which, in the opinion of the Government, has substantially expanded, to the extent of such expansion, for a period not exceeding two years from the date of completion of the expansion."
The majority agreed with the Government and with its policy that only new sugar factories were being granted exemption and that too only for a period of one year as against of three years as contemplated in the Act.
21. We would think that the line of decisions, which take the view that a statutory discretion must be exercised with appreciation of the facts of each case, may not be available for us to be applied here in this case. Acting under Section 57 of the Act, the authority has admittedly framed the guidelines, which we have already referred to. We would think that once the application is made by the petitioner himself seeking the benefit of compounding, it may not lie in his mouth to point out there that is a reservoir of plenary powers still available under Section 32 to be exercised 24 de hors the guidelines. As noticed, though they are described as guidelines, they are statutory in nature. We have already pointed out the hazard in countenancing the action in deviation from the guidelines be it contained in a bye-law, which are, undoubtedly, statutory in nature. We must notice that the petitioner has no case that the calculation of 75 per cent up to which maximum the compounding has been permitted is not as per the guidelines. Merely, because they are described as guidelines, we would think, that again may not entitle the petitioner to contend that they can be departed from in the same manner as a non-statutory guideline can be contravened. We would think that the guidelines are to be followed by the authority. An action taken in contravention of the guidelines would be in peril of being vulnerable to interference as ultra vires action by a statutory authority.
22. Therefore, we would think that in the facts of this case it may not be open to the petitioner to contend that his compounding application has not been dealt with in a fair manner or legally. The authority has applied the guidelines and granted the benefit of compounding insofar as it was permitted under the guidelines.
23. No doubt, learned senior counsel for the petitioner would impress upon us the unique nature of the construction made, which was to protect the entire building and the impact of implementing the order of compounding and binding the petitioner with the terms of his affidavit, namely, he would point out that the structure itself would have come down.
24. Insofar as the action cannot be found to be flawed keeping the bye- laws side by side with the construction, we may not be justified in interfering with it. In fact, learned senior counsel for the petitioner would attempt to draw support from the amendment in the bye-laws in the year 2016. We notice that the said bye-laws have been made in supersession of the earlier bye-laws. The case of the petitioner came to be dealt with in terms of the bye-laws then existing. The argument of learned senior counsel for the petitioner appears to be that a law which comes into force at a later 25 point of time can be given retrospective effect if it does not adversely affect a party, but which is of beneficial effect as far as he is concerned. He would attempt to draw support from certain case law. We may advert to a few of them. In the case of N. Parameshwaran Pillai Vs. Union of India reported in (2002) 4 SCC 306, the question which arose before the Hon'ble Apex Court was whether the enhanced compensation of Rs. 4 lakhs, which was introduced by an amendment to the Railways Accidents and Untoward Incidents (Compensation) Rules, 1990, would be available to a case of accident which took place prior to the amendment of the Act. The Hon'ble Apex Court took the view that a just interpretation would be that it would be made applicable. Similarly in the case of Municipal Council of Sydney Vs. Margaret Alexandra Troy reported in AIR 1928 PC 128, the question arose was in respect of the respondent, whose land had been acquired prior to the 1924 Sydney Corporation Act, which provided for interest at 4 per cent and whether the same would be applicable to him. The following is the view taken by the learned Judges of the Supreme Court of New South Wales:
"6. The learned Judges of the Supreme Court of New South Wales agreed in rejecting this contention, and held that the respondent was entitled to succeed. The main ground of their reasoning turned on the ambit and scope of S. 17.
"It cannot be contended," said the Chief Justice, "and it is not contended, that it is retrospective in its operation so as to affect the rate at which interest was payable before it came into operation, but the question is whether the direction that interest thereafter is to be at the rate of 6 per cent, per annum applies only to subsequent acquisition of land, or applies as well to prior acquisitions, the compensation for which was still unpaid when it came into force. The words used are perfectly general. What is spoken of is the rate of interest payable upon compensation for land acquired by the Council. No distinction is made between land acquired before the Act and that acquired after, and to give effect to the contention of the Municipal Council it would be necessary to substitute for the wide and general word "acquired" some such words as "to be acquired," or "hereafter acquired " I can find nothing in the section to justify the imposition of any such limitation and there is no rule or presumption which requires that the word should be so limited in its meaning."26
25. We do not see how the said principle can be applied in the instant case. In this case, the earlier law has been repealed. The effect of repeal of an earlier law, it is well settled, cannot take away the rights and liabilities which have been accrued and incurred under the earlier law. We would think that it would neither be fair nor legal to permit the petitioner to seek the benefit of the liberalized concept of F.A.R. under the law, which came into force in the year 2011 in the facts and circumstances of this case.
26. Lastly, Mr. R. Venkataramani, learned senior counsel for the petitioner would also contend that instead of demolition, as is inevitable on the basis of the compounding, the petitioner may be permitted to demolish the two upper floors, which would be in proportion to the construction rather than having the entire building demolished, which would be the effect of complying with the order of compounding. We have noticed the facts and circumstances of this case. We don't think we should go into that request.
27. We notice that in the supplementary affidavit, the petitioner had taken several instances where affidavits were filed like the petitioner but they have not been taken to task. The reply appears to be that three out of ten have not given affidavits but regarding the others it is not clear as to whether any action has been taken on the basis of the affidavits. We would, undoubtedly, expect a statutory authority to act in a fair manner, applying the same principle across the board to similarly circumstanced persons. The attempt made by the learned senior counsel for the petitioner to draw support for his submissions from others being treated more favourably may not persuade us to interfere with the orders, which are otherwise not found to be afflicted with any illegality; but at the same time while we do not interfere with the case of the petitioner, we only record the submission of Ms. Puja Banga, learned counsel on behalf of respondent no. 3 that if persons have given affidavits, in their cases also, the law must take its course and the undertaking contained in the affidavits must be effectuated.
27We only record this submission that action as per law will be taken in their cases also.
28. Subject to the same, the writ petition fails and will stand dismissed. No order as to cost.
(V.K. Bist, J.) (K.M. Joseph, C.J.)
16.11.2017 16.11.2017
Rahul