Punjab-Haryana High Court
The Sirsa Adarsh Coop. House Building ... vs State Of Haryana And Others on 9 May, 2011
Author: Jasbir Singh
Bench: Jasbir Singh, Rakesh Kumar Garg
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Civil Writ Petition No.16857 of 2010(O&M)
Date of decision: 09.05.2011
The Sirsa Adarsh Coop. House Building Society Ltd.
.....Petitioner
versus
State of Haryana and others
......Respondents
CORAM: Hon'ble Mr.Justice Jasbir Singh
Hon'ble Mr.Justice Rakesh Kumar Garg
Present: Mr.Arun Jain, Senior Advocate with
Mr.Kushagra Mahajan, Advocate for the petitioners
Ms.Palika Monga, DAG Haryana
Mr.Gitish Bhardwaj, Advocate for
Mr.Arun Walia, Advocate for HUDA
Jasbir Singh, J.
C.M. No.6357 of 2011 Application allowed. Document annexed with it is taken on record.
CWP No.16857 of 2010 Petitioner No.1 is a Society and petitioner No.2 is its member. This writ petition has been filed with a prayer to quash a notification, issued under Section 4 of the Land Acquisition Act, 1894 (in short, the Act) on 15.1.2008, proposing to acquire a vast tract of land, including 92 kanal 18 marla of land owned by the petitioners, for a public purpose, namely, 'for development of residential Sectors 21 and 22 Part at Sirsa'. Further challenge has been made to a declaration, issued under Civil Writ Petition No.16857 of 2010(O&M) 2 Section 6 of the Act on 14.1.2009, ordering final acquisition of the above said land.
As per the facts on record, petitioner No.1 was registered as a Society on 12.7.1980. It was formed with an object to purchase land, carve out the plots and allot those plosts to its members for residential purpose. It purchased 32 acres (259 kanal 17 marla) of land in the year 1980. Out of the said land, vide separate notifications, the State of Haryana had acquired 166 kanal 19 marla of land at different times. Petitioner No.1 is the owner and in possession of 92 kanal 18 marla only, in which, it carved out 195 plots measuring 200 square yards each. A planned colony was carved out with all civil amenities, including landline telephone, electricity, metalled roads and drinking water etc. Some of the members also raised construction on the plots allotted to them. It is further stated that to the notification issued under Section 4 of the Act on 15.1.2008, detailed objections were filed by members of the Society with a prayer that the land owned by the Society be exempted from acquisition. It was also averred that for getting the colony regularized, CWP No.13834 of 2007, filed by the members of the Society is pending in this Court. Despite objections having been raised, the respondents proceeded to acquire 84 kanal 17 marla of land. About 8 kanal of land was left out from acquisition, in which, construction was in existence. By stating that after issuance of notification under Section 6 of the Act, land situated next to the colony carved out by the petitioners, was released from acquisition, claiming discrimination, a prayer is made to release the land owned by the petitioners from acquisition as well.
When notice of motion was issued on 20.9.2010, following contention of counsel for the petitioners was noticed by this Court:- Civil Writ Petition No.16857 of 2010(O&M) 3
"By making reference to the site plan (P10), counsel for the petitioners demonstrates that on three sides of the land owned by members of the Society, land of a builder has been released from acquisition after issuance of notification under Section 6 of the Land Acquisition Act, 1894. Counsel further try to demonstrate that many houses in the colony stood constructed and others could not be constructed because litigation was pending in this Court, which came to an end on 14.7.2010. Counsel further submits that Society is going to develop the area in a planned manner. To say so reference has been made to another site plan(P4)."
Upon notice, reply was filed by the respondents. Relevant portion of the reply filed by respondent No.2 reads thus:-
"1. That the petitioners have concealed the true and material facts from this Hon'ble Court and have not come with clean hands, hence the petitioners are not entitled to any relief as prayed for. The Sirsa Adarsh Co-operative House Building Society Limited Sirsa i.e. petitioner No.1 has carved out an unauthorized colony in the area in dispute without taking the prior permission from the Director, Town & Country Planning Haryana, Chandigarh, which was mandatory under section-3 of the Haryana Development & Regulation of Urban Areas Act, 1975, (hereinafter referred as the said Act, 1975). The said area of the petitioner no.1 falls in the controlled Area & Urban Area in extended municipal limits of Sirsa. The area on which the petitioner no.1 carved out an unauthorized colony falls in residential zone for sector 21 & 22 as per already Civil Writ Petition No.16857 of 2010(O&M) 4 published Final Development Plan of 2021 A.D. of District, Sirsa. The photocopy of Final Development Plan is annexed as Annexure R-1. The area of the said society also falls within the preview and jurisdiction of the answering respondent no.2 under the said Act, 1975. The petitioners couldn't claim the benefit of their own wrong. Rather the petitioner no.2 and its other members of the society in collusion with petitioner no.1 have committed an offence by violating the mandatory provisions of the Act ibid. The present writ petition has been filed with malafide intention to avoid their liabilities as such there is no infringement of Article-14 of Constitution of India and thus, the writ petition is liable to be dismissed only on this score.
2. That the petitioner no.1 has purchased the land in dispute with malafide intention to carved out an unauthorized colony for his personal benefits/ gain without taking any license from the competent authority which was mandatory under section-3 of the Act, 1975. On coming notice to the answering respondent no.2 for carving out an unauthorized colony by the petitioner no.1, the answering respondent no.2 had written a letter bearing no.U7/194 dated 10-02-1981 to the S.H.O., Police Station, City Sirsa for lodging an FIR against the petitioner no.1 under section 10 of the said Act, 1975. (Photocopy of the same is annexed as Annexure R2). On the complaint of answering respondent no.2, FIR bearing no.52 dated 8.3.1981 was lodged against the petitioner No.1 by the S.H.O. Police Station, city, Sirsa. Photocopy of the FIR Civil Writ Petition No.16857 of 2010(O&M) 5 lodged against the petitioner no.1 is annexed as Annexure R3. It is also relevant to mentioned here that the petitioner no.1 in collusion with petitioner no.2 and some other members of the said society have carved out an unauthorized colony and started raising unauthorized roads over the area of the said colony for which show cause notice under section 6, 7(i) of The Punjab Scheduled Roads and Controlled Areas Restriction of Unregulated Development Act, 1963 vide memo no.467 dated 31.5.2005 was issued for demolition of the above said unauthorized constructed roads, but the petitioners did not turn up. Hence, the Restoration order vide memo no.508 dated 13.6.2005 was issued by the answering respondent against the petitioners for the violation of section 6 and 7(i) of the Act, ibid. Photocopies of the show cause notice and demolition order under sub-section 2 of section 12 of the said Act, 1963 are annexed as Annexure R-4 and Annexure R-5. Thereafter, the answering respondent no.2 after making the programme for demolition of the unauthorised roads raised by the petitioners in the said unauthorized colony demolished the unauthorized roads on 30.9.2005.
It is also relevant to mentioned here that the petitioner no.2 along with other 21 members of the society have filed a writ petition no.13834 of 2007 titled as Satpal & others vs. State of Haryana & others, in which the petitioner no.1 was the Respondent no.5 before the Hon'ble High Court in the said writ petitioner. The said writ petition was decided by this Hon'ble High Court on 14.7.2010 by allowing the writ petition Civil Writ Petition No.16857 of 2010(O&M) 6 of the petitioner and quashed the impugned action dated 13.6.2005 of the respondent and declared that the area in question having been merged into the municipal limits would be governed by the provisions of Haryana Municipal Act, 1973 and do not by the Punjab Scheduled Roads and Controlled Areas Restriction of Unregulated Development Act, 1963. And issued direction to the respondents to dispose of the representation dated 1.12.2005 by passing a speaking order. It is pertinent to mention here that the orders dated 14.7.2010 in above referred CWP were based on the earlier orders passed by the Division Bench of the Hon'ble High Court in M/s Shiva Ice Factory versus State of Haryana, CWP No.8011 of 1999. The said orders of Hon'ble High Court were assailed in the Hon'ble Supreme Court through SLP No.21651 of 2009 and the Hon'ble Supreme Court is pleased to stay the operation of the orders of Hon'ble High Court. After passing the order dated 14.7.2010 by the Hon'ble Division Bench of the Hon'ble High Court the petitioner started raising unauthorized construction on their plots at large. On coming notices to the answering respondents show cause notices vide memo no.5686 to 5702 on dated 3.9.2010, 5738 to 5744 on dated 7.9.2010 & 5966 to 5968 on dated 22.9.2010 and demolition order vide memo no.5942 to 5969 on dated 22.9.2010 & 6067 to 6069 on dated 30.9.2010 was issued against the petitioners for violation of section 7(ii) of the Haryana Development and Regulation of Urban Areas Act, 1975. But the petitioners did not stop the unauthorized construction and filed the present Civil Writ Petition No.16857 of 2010(O&M) 7 writ petition. The answering respondent no.2 has already decided the representation dated 1.12.2005 in view of direction issued by the Hon'ble Division Bench of this Hon'ble High Court within stipulated period in CWP No.13834/2007 titled as Satpal and others versus State of Haryana and others. The copy of the same has also been sent to all the petitioners. Photocopy of the same is annexed as Annexure R-6. It is also relevant to state here that the Hon'ble Supreme Court while deciding the case titled as Royal Paradise Hotel (P.Limited) Vs. State of Haryana & others 2006 (7) Supreme Court Cases 597, held that even if subsequently a Municipality Act has been extended, the illegality and violation of the act cannot condone by the authorities under that Act or by any court admitting law and justice and no authority whether the Highway authority or the municipal authority is entitled to reward a person indulging in such illegal activity. Therefore, in view of the direction issued by the Hon'ble Supreme Court while deciding the case of Royal Paradise Hotel, the present writ petition is liable to be dismissed."
It was specifically stated in the written statement that the petitioners are the law breakers. They carved out a colony without getting any permission from the competent authority, as such, no relief be granted to them.
Heard counsel for the parties.
Mr.Arun Jain, Senior Advocate has vehemently contended that the petitioners have conceptualized a planned developed colony, their purpose is the same for which the land has been sought to be acquired. To Civil Writ Petition No.16857 of 2010(O&M) 8 say so, reference was made to the site plan (P4). It was further stated that the land owned by a developer was released, after issuance of a notification under Section 6 of the Act. Land owned by the petitioners is surrounded by the licenced land, as such, it cannot be put to any useful purpose, rather it will be beneficial, if it is released in favour of the petitioners and members of the Society are allowed to construct their houses thereon. By claiming discrimination, a prayer has been made to quash the notifications, mentioned above. To claim relief, reliance has been placed upon a judgment of the Hon'ble Supreme Court in Ghaziabad Sheromani Sahkari Avas Samiti Ltd. and another etc. v. State of U.P. and others etc., AIR 1990 Supreme Court 645 and two Division Bench judgments of this Court in Eros City Developers Private Ltd. V. State of Haryana and others, 2008(2) R.C.R.(Civil) 291 and Jagtar Singh and another v. State of Haryana and another, 2010(3) R.C.R.(Civil) 341.
The State counsel has vehemently opposed the prayer made by the petitioners, by stating that the petitioners are the law breakers. In the year 1980, when an attempt was made to carve out a colony, contrary to the provisions of Haryana Development and Regulations of Urban Areas Act, 1975 (in short, 1975 Act), an FIR was recorded against petitioner No.1 on 10.2.1981. Thereafter, when an attempt was made to raise construction without getting any permission, notices for demolition of unauthorized construction were issued to the members of the Society on 31.5.2005. They laid challenge to those notices, by filing a CWP No.13834 of 2007, which was allowed by the High Court on 14.7.2010 on a technical ground. To get their colony regularized, liberty was granted to the Society to approach the competent authority. A representation made by the Society was dismissed by the District Town Planner, Sirsa, against which, an appeal filed by the Civil Writ Petition No.16857 of 2010(O&M) 9 petitioner No.1 is pending. By stating that no relief can be granted to a law breaker under the provisions of Article 226 of the Constitution of India, she prayed that the writ petition be dismissed.
After hearing counsel for the parties, we feel that no relief can be granted to the petitioners in this writ petition.
It is an admitted fact that the petitioners purchased the land in dispute in the year 1980 and carved out a colony without getting any permission from the authority concerned. Facts on record show that the land in dispute came within the jurisdiction of Municipal Committee in the year 1997. Prior thereto, for violating the provisions of 1975 Act, an FIR was recorded against the members of petitioner No.1. Thereafter, when they raised unauthorized construction without getting any permission either as per the provisions of the Punjab Scheduled Roads and Controlled Areas Restriction of Unregulated Development Act, 1963 (in short, 1963 Act) or under the Municipal Law, demolition notices were served upon them. They came to this Court by filing a CWP No.13834 of 2007, which was allowed by this Court vide order dated 14.7.2010. It was opined that as the land in dispute falls within the municipal limits, the authorities have no jurisdiction to issue demolition notices under Section 12(2) of 1963 Act. The notices were accordingly quashed. Regarding prayer of the petitioners to regularize their colony, it was observed as under:-
"At this stage, learned counsel for the petitioners prayed that a direction be issued to the State Government to regularize the colonies set up by the petitioners as similar situated 26 other colonies which were merged later on in the municipal area have been regularized. He further states that a representation dated 11.01.2005 (Annexure P-7) has already been made in Civil Writ Petition No.16857 of 2010(O&M) 10 this regard to the Government of Haryana which is pending decision. In view of the law laid down by the Full Bench in M/s Shiva Ice Factory's case (supra) as well as considering the fact that 26 colonies have already been regularized, we direct respondents No.1 to 3 to dispose of the representation dated 01.12.2005 by passing a speaking order but not later than 12 weeks from today. In case any order adverse order to the petitioners is passed, the said order shall not be given effect to for a further period of 8 weeks. There shall be no order as to costs."
Admittedly, representation made by petitioner No.1 was declined by the competent authority, on a ground that as per Policy, a colony carved out by petitioner No.1, cannot be regularized. Against that order, an appeal is pending. In the reply filed, it is specifically stated that after decision of this Court in CWP No.13834 of 2007, the members of the Society again started raising construction without getting any building plan approved from the municipal authorities and again show cause notices were sent to them on 3.9.2010, 7.9.2010, 22.9.2010 and 30.9.2010 under the provisions of 1975 Act. However, they did not stop unauthorized construction, rather prefer to file this writ petition, in which, an interim stay was granted in their favour.
We feel that conduct of petitioner No.1 and its members is such that they are not entitled to get any relief from this Court. The members are the law breakers. Without getting any permission, a colony was carved out and construction was also raised without getting any permission either under 1963 Act or the provisions of the Municipal Laws. Despite notice Civil Writ Petition No.16857 of 2010(O&M) 11 issued to stop the construction, the respondents failed to respond to the same.
Under similar circumstances, relief was declined to a petitioner, who had raised construction contrary to the provisions of law, in CWP No.7711 of 1999 titled as New Vidya Niketan Educational Society v. The State of Haryana and others, decided on 5.4.2011, wherein it was observed as under:-
"A law breaker cannot be permitted to get any relief from the Court by performing an act contrary to the provisions of law. A Division Bench of Delhi High Court in Anil Kumar Khurana v. M.C.D., 1996(36) DRJ (DB), under similar circumstances where an owner of an unauthorised building wanted to get relief by citing example of other unauthorisely raised construction, observed as under:
"The petitioners are attempting to legalise illegal acts by filing these writ petitions and the appeals, which is not non pariel in all the Courts in the country.
I feel that the provisions in statues, Rules, Regulations and Bye laws do not meet the demands of today's situation. The process has to be strengthened. The law must be provided with more biting teeth and there must be genuine apprehension in the mind of every person engaged in the real estate business that any infraction or violation of laws would be visited with exemplary punishment, for they spoil the society and try to enthuse in the law abiding citizens that any violation would not be Civil Writ Petition No.16857 of 2010(O&M) 12 taken cognizance of by the authorities and that they have the means to get round the law. The law should also provide severe punishment for erring officers and responsibility must be fixed on them. The officers should not only be aware that they are the persons to implement the law but must also be conscious of the position that in a welfare state it is the obligation of the state to ensure the creation and sustaining conditions congenial to good health of the people which is a sine-qua-non for the progress of the country as a whole not only in the field of science and technology but also in all spheres of human endeavours to meet the challenge, particularly at this juncture, arising out of globolisation of everything under the sun."
By taking note of the deteriorating conditions of law and habit of the citizens to violate the same with impunity, it was further said as under:
"11. The Supreme Court on more than one occasion has noticed that there has been steady decline in standard in public life and it is hoped that those who are in power have in the fore front of their minds the welfare and wellbeing of the country that people with sense of patriotism and sacrifice would emerge in public life.
14. The Supreme Court has very forcefully observed about the powers of the court in A.I.R. 1981 S.C. Civil Writ Petition No.16857 of 2010(O&M) 13
625. "The writ must right the wrong fortwith or must stand self condemned as make believe."
15. And, therefore, the writ cannot protect the wrong. It is the duty of the Courts to preserve public good and interdict misuse of powers and position. The Supreme Court has given the guidance by stating that scanning must be done through the objective lens of the Court representing the collective conscience of the community and not through the tingedlens of wrong doers whose economic interest may be prejudicially effected by the provisions of law. In other words, the Court examining the matter, from the perspective of the constitutional mandate armed with the criterion of the objectivity and over all interest of the community at large, must be satisfied.
16. I would like to recall the observations of the House of Lord in 1961 Vol. 1 All England Reports 446 "I entertain no doubt that there remains in the Courts of law a residual power to enforce the supreme and fundamental purpose of the law, to conserve not only the safety and order but also the moral welfare of the state and it is their duty to guard it against attacks which may be more insidous because they are novel and unprepared for."
Similarly, Hon'ble Sabharwal, J., in that very judgment has observed as under:
Civil Writ Petition No.16857 of 2010(O&M) 14
"In an equitable jurisdiction it is the duty of the court to preserve the public good. The writ court cannot protect the wrong. A person who seeks equity must do equity. No one can be allowed to take advantage of his own wrong. A person who has committed a wrong may not be heard by a writ court in support of the plea that the authority which is taking action against him has no power or jurisdiction and such power vests in another statutory authority. The law breakers can be refused equitable relief assuming they may have some case on merits. The writ court can deny hearing to such law breakers."
By noting mis-statement made by the petitioner in the above case, it was further observed that a litigant is supposed to come to the Court with clean hands to get relief.
In the present case, an attempt was made to conceal the material facts. In the writ petition, it was very boldly stated that the building was constructed as per the approved plan. To the contrary, perusal of the documents indicate that despite the area being a part of Municipal Corporation, Faridabad, the building plan was not ever presented before the competent authority for approval, as was averred by the petitioner. This assertion was reiterated by Shri Janak Raj Khatana in his affidavit dated March 9, 2011. In cases, where there is an attempt to over-reach the Court by propagating false plea and withholding an important information, the Court may decline relief to a litigant. Civil Writ Petition No.16857 of 2010(O&M) 15 A Division Bench of the Delhi High Court in the case of Anil Kumar Khurana (supra) and by making reference to the finding given by this Court in the case of Tetar Mandal vs. Executive Officer, AIR 1978 Punjab and Haryana 326, has observed as under:
"A person obtaining an ex parte order or a rule nisi by means of a petition for exercise of the extraordinary powers under Art. 226 of the Constitution must come with clean hands, must not suppress any relevant facts from the Court, must refrain from making misleading statements and from giving incorrect information to the Court. Courts, for their own protection, should insist that persons invoking these extraordinary powers should not attempt, in any manner, to misuse this valuable right by obtaining ex parte orders by suppression, misrepresentation or misstatement or facts. Applying this principle to the present case, we feel that, in this case, the petitioner Company has disentitled itself to ask for a writ of prohibition by material suppression, misrepresentations and misleading statements which have been found by us above. Under similar circumstances, Hon'ble the Supreme Court in S.P. Chengalvaraya Naidu (dead) by L.Rs. v. Jagannath (dead) by L.Rs,. and others, AIR 1994 Supreme Court 853, observed as under:Civil Writ Petition No.16857 of 2010(O&M) 16
"The principle of finality of litigation cannot be pressed to the extent of such an absurdity that it becomes an engine of fraud in the hands of dishonest litigations The courts of law are meant for imparting justice between the parties. One who comes to the court, must come with clean hands. We are constrained to say that more often than not, process of the court is being abused. Property -grabbers, tax-evaders, bank loan dodgers and other unscrupulous persons from all walks of life find the court process a convenient lever to retain the illegal gains indefinitely. We have no hesitation to say that a person whose case is based on falsehood, has no right to approach the court. He can be summarily thrown out at any stage of the litigation."
We have noted with concern that in most of the cases, it has become a habit of the land owners to raise construction without getting requisite permission, in defiance to the provisions of law. The State in those cases unnecessarily has shown compassion by releasing those constructions. The situation is deteriorating day by day. Despite promulgation of many statutes to regulate the construction for development of urban areas, the legislation has failed to achieve the desired object. It was so noted by the Hon'ble Supreme Court in the case of Shanti Sports Club and another v. Union of India and others, (2009) 15 Supreme Court Cases 705. In that regard, it was observed as under: Civil Writ Petition No.16857 of 2010(O&M) 17
"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 unauthorised constructions and encroachments has acquired Civil Writ Petition No.16857 of 2010(O&M) 18 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, 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, Civil Writ Petition No.16857 of 2010(O&M) 19 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) Civil Writ Petition No.16857 of 2010(O&M) 20 SCC 733, M.C. Mehta v. 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 with 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 Civil Writ Petition No.16857 of 2010(O&M) 21 affluent class of builders and others, else even the rural areas of the country will soon witness similar chaotic conditions."
To the same effect is the ratio of the judgment of the Hon'ble Supreme Court in the case of Priyanka Estates International Pvt. Ltd. and Ors. v. State of Assam and others, AIR 2010 Supreme Court 1030. By taking note of illegal construction on a large scale beyond even the sanctioned plans, it was observed as under:
"73. It is a matter of common knowledge that illegal and unauthorised 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/colonisers would continue to build or construct beyond the sanctioned and approved plans and would still go scot-free. Ultimately, it is the flat owners who fall prey to such activities as the ultimate desire of a common man is to have a shelter of his own. Such unlawful constructions are definitely against the public interest and hazardous to the safety of occupiers and residents of multi- storeyed buildings. To some extent both parties can be said to be equally responsible for this. Still the greater loss would be of those flat owners whose flats are to be demolished as compared to the Builder.Civil Writ Petition No.16857 of 2010(O&M) 22
74. Even though on earlier occasions also, under similar circumstances, there have been judgments of this Court which should have been a pointer to all the builders that raising unauthorised construction never pays and is against the interest of society at large, but, no heed to it has been given by the builders. Rules, regulations and bye-laws are made by Corporation or by Development Authorities, taking in view the larger public interest of the society and it is a bounden duty of the citizens to obey and follow such rules which are made for their benefit. If unauthorised constructions are allowed to stand or given a seal of approval by court then it is bound to affect the public at large. An individual has a right, including a fundamental right, within a reasonable limit, it inroads the public rights leading to public inconvenience, therefore, it is to be curtailed to that extent.
75. The jurisdiction and power of courts to indemnify a citizen for injuries suffered due to such unauthorised or illegal construction having been erected by builder/coloniser is required to be compensated by them. An ordinary citizen or a common man is hardly equipped to match the might and power of the builders.
77. It is a sound policy to punish the wrong-doer and it is in that spirit that the courts have moulded the reliefs of granting compensation to the victims in Civil Writ Petition No.16857 of 2010(O&M) 23 exercise of the powers conferred on it. In doing so, the courts are required to take into account not only the interest of the petitioners and the respondents but also the interest of public as a whole with a view that public bodies or officials or builders do not act unlawfully and do perform their duties properly."
In the present case, situation is rather worse. Not only the initial construction, the petitioner continued construction during pendency of this writ petition in an unauthorised manner. So far as discrimination done to the petitioners is concerned, the same is not coming out from the record. It is correct that licence to develop a colony has been granted in favour of a developer, after issuance of notification under Section 6 of the Act, however, the same has been done as per the Policy of the State Government dated 26.10.2007, which is not under challenge before this Court. In the case of the petitioners also, where ever, construction was in existence at the relevant time, those houses have been left out from acquisition, in an area measuring about 8 kanal.
Contention of counsel for the petitioners, that plots of the other members be also released on the similar analogy, is not acceptable. The State Government may give relief to a person who has acted contrary to law but when exercising jurisdiction under the provisions of Article 226 of the Constitution of India, the Court will be reluctant to provide any relief to a litigant who has no respect for law.
No benefit of the ratio of the judgment in Ghaziabad Sheromani Sahkari Avas Samiti Ltd.'s caser (supra) can be given to the petitioners because that was a case where virtually a settlement was arrived at between the members of the petitioner Society and the Government Civil Writ Petition No.16857 of 2010(O&M) 24 Authorities not to acquire the land. So far as judgment in Jagtar Singh's case (supra) is concerned, it was a case of clear discrimination. In that case, land of 'A' land owner was released from acquisition and land of 'B' land owner, situated next thereto, was ordered to be acquired. Position is not the same because as in this case, land of a builder has been released as per Policy of the State Government and in terms of the provisions of 1975 Act. Similar is the position so far as Eros City Developers Private Ltd.'s case (supra) is concerned. That was a case in which relief was not granted to a land owner despite being eligible to get the same as per Policy of the State Government. The petitioner therein had deposited huge amount before issuance of notification under section 4 of the Act to get change of land use certificate to develop a colony. By taking note of the same, qua land owned by the petitioners therein, notifications were set aside. Position in the present case is altogether different as has been discussed in earlier part of this order.
Further contention of counsel for the petitioners that vide office noting Annexure P15, the Chief Minister has ordered the release of further land, is of no help to the petitioners. Vide that order, only the constructed buildings were kept out of acquisition, which is in consonance with the Policy of the State Government. The petitioners have failed to show to this Court that any vacant plot/ land owned by any other land owner, except a developer, was kept out of acquisition. In the case of the petitioners also, plots of some of its members, who had raised construction prior to the issuance of notification under Section 4 of the Act, were released from acquisition.
Dismissed.
(Jasbir Singh)
Judge
Civil Writ Petition No.16857 of 2010(O&M) 25
09.05.2011 (Rakesh Kumar Garg)
gk Judge