Punjab-Haryana High Court
Dalbir Singh vs State Of Haryana And Ors. on 5 September, 2002
Equivalent citations: AIR2003P&H113, AIR 2003 PUNJAB AND HARYANA 113, 2003 HRR 6 479
Author: J.S. Khehar
Bench: J.S. Khehar
JUDGMENT J.S. Khehar, J.
1. The present controversy is governed by the provisions of the Punjab Scheduled Roads and Controlled Areas Restriction of Unregulated Development Act, 1963 (hereinafter referred to as the '1963 Act'). The aforesaid legislation was enacted to prevent haphazard and substandard development along the scheduled roads in controlled areas. The parameters of declaring an area as a controlled area under the provisions of the 1963 Act have been defined in Section 4, which is being reproduced hereunder :--
"4. Declaration of controlled area.-- (1) The Government may by notification declare the whole or any part of any area adjacent to and within a distance of -
(a) eight kilometres on the outer side of the boundary of any town; or
(b) two kilometres on the outer side of the boundary of any industrial or housing estate, public institution or an ancient and historical monument, specified in such notification to be controlled area for the purposes of this Act.
(2) The Government shall also cause the contents of the declaration made under Subsection (1) to be published in at least two newspapers printed in a language other than English."
2. Sections 3, 6, 8 and 10 of the 1963 Act lay down the restrictions prescribed for an area which has been declared as a controlled area. It is not necessary to reproduce the aforesaid provisions in this order as the petitioner has not placed reliance on any of the aforesaid provisions to press his claim.
3. The consequences for violating the prohibitions prescribed under the 1963 Act have been delineated in Section 12 thereof, which lays down not only the action that can be taken against a person violating the provisions of the 1963 Act, but also the procedure for taking such action. Section 12 of the 1963 Act is being reproduced hereunder :--
"12. Offences and penalties.-- (1) Any person who -
(a) erects or re-erects any building or makes or extends any excavation or lays out any means of access to a road in contravention of the provisions of Section 3 or Section 6 or in contravention of any conditions imposed by an order under Section 8 or Section 10, or
(b) Uses any land in contravention of the provision of Sub-section (1) of Section 7 or Section 10.
shall be punishable with imprisonment of either description for a term which may ex tend to three years and shall also be liable to fine which may extend to fifty thousand rupees but not less than ten thousand rupees and. in the case of a continuing contravention, with a further fine which may extend to one thousand rupees for every day after the date of the first conviction during which he is proved to have persisted In the contravention.
(2) Without prejudice to the provisions of Sub-section (1), the Director may. by notice, served by post and if a person avoids service, or is not available for service of notice, or refuses to accept service, then by affixing a copy of it on the outer door or some other conspicuous part of such premises, or in such other manner as may be prescribed, call upon any person who has committed a breach of the provisions referred to in the said sub-section to stop further construction and to appear and show cause why he should not be ordered to restore to its original state or to bring it in conformity with the provisions of the Act or the Rules, as the case may be. any building or land in respect of which a contravention such as described in the said sub-section has been committed, and if such person fails to show cause to the satisfaction of the Director within a period of seven days, the Director may pass an order requiring him to restore such land or building to its original state or to bring it in conformity with the provisions of the Act or the Rules, as the case may be, within a further period of seven days.
(3) If the order made under sub-section (2) is not carried out. within the specified period, the Director may himself at the expiry of the period of this order, take such measure as may appear necessary to give effect to the order and the cost of such measures shall, if not paid on demand being made to him. be recoverable from such person as arrears of land revenue :
Provided that even before the expiry of seven day's period mentioned in the order under Sub-section (2), if the Director is satisfied that instead of stopping the erection or re-erection of the building or making or extending of the excavation or laying out of the means of access to a road, as the case may be. the person continues with the contravention, the Director may himself take such measures as may appear necessary to give effect to the order and the cost of such measures, shall if not paid on demand being made to him. be recoverable from such person as arrears of land revenue."
4. The facts narrated in the writ petition reveal that the petitioner is owner in possession of the land measuring 89 kanals 4 marlas situated in the revenue area of village Naultha Tehsil Israna. District Panipat. The primary question to be considered in the instant case is whether the petitioner's land is situated in a "controlled area" notified by the State Government under Section 4 of the 1963 Act. In this behalf, it would be relevant to mention that in the first instance, the Governor of Haryana issued a notification dated 10-9 1971 declaring an area around the limits of Panipat as "controlled area". As is evident from a perusal of Section 4 of the 1963 Act extracted above, every declaration of "controlled area", must be published in at least two newspapers printed in a language other than English. The case of the petitioner is that the notification dated 10-9-1971 issued by the Governor of Haryana was published in the "Indian Express" dated 16-11-1971 in English, in the "Dainik Hindi Milap" dated 16-11-1971. in Hindi. It is the case of the petitioner that besides the aforesaid two valid publications of the notification dated 10-9-1971. the State Government did not publish the notification dated 10-9-1971 in any other newspaper, and as such the aforesaid notification does not conform to the mandate of the requirements of Section 4(2) of the 1963 Act, and therefore, has no enforceable authority. When the State Government discovered the fact that the notification dated 10-9-1971 had not been published in at least two newspapers printed in a language other than English in terms of the mandate of Section 4 of the 1963 Act; in order to fill up the obvious lacuna it issued a publication of the notification dated 10-9-1971) in the "Veer Arjun" on 25-2-1992 in Hindi. The instant publication dated 25-2-1992 is stated to have been made to satisfy the requirements of Section 4 of the 1963 Act. It is, however, submitted that the aforesaid publication cannot be taken into consideration in order to determine the validity of the notification dated 10-9-1971 because the publication in the "Veer Arjun" was issued after a lapse of a period of more than 21 years from the date of the notification.
5. At this juncture, it would be necessary to mention that the land owned by the petitioner does not fall within the "controlled area" notified on 10-9-1971.
6. Section 4 of the 1963 Act has already been extracted above. Its perusal inter alia reveals, that an area falling within 8 kilometres of the outer side of the boundry of a town can be declared as a controlled area. After the publication of the notification dated 10-9-1971. the municipal limits of Panipat were extended. The aforesaid extension of the municipal limits was admittedly notified on 26-5-1975. After the extension of the municipal limits of Panipat, another notification dated 23-2-1982 was issued under S. 4 of the 1963 Act, by the Governor of Haryana, declaring an additional "controlled area" Part-11 and Part-Ill, Panipat, The aforesaid notification dated 23-2-1982 was published in Hindi in the "Dainik Hindi Milap", Jalandhar on 19-7-1982. in Urdu in the "Tej" on 23-7-1982 and also in English in the "National Herald" dated 19-7-1982. It is, therefore, obvious that in so far as the notification dated 23-2-1982 is concerned, all the prescribed formalities have been adhered to.
7. After the extension of the controlled area by notification dated 23-2-1982, the District Town Planner (E). Panipat exercising the powers of Director, Town and Country Planning, Haryana issued a show cause notice dated 1-1-2002 to the petitioner informing him that he had violated the provisions of the 1963 Act in respect of land owned by him, situated on the Panipat-Gohana road, near the 10 kilometres stone. In view of the alleged violation, the District Town Planner required the petitioner to stop further construction and to appear before him on 8-1-2002 at Panipat; he was also directed to show cause within a period of seven days why he should not be prosecuted for change of land use and ordered to restore the land to its original state. It is interesting to notice that in the aforesaid show cause notice, the petitioner was directed to produce the following documents :--
(i) Site Plan,
(ii) Registration Deed,
(iii) Nakal Jamabandi,
(iv) Khasra Girdawari,
(v) Shazra Plan.
It is clear from the mandate of Section 12 of the 1963 Act (extracted above) that the concerned authority must require the person (who is alleged to have breached the prohibitions prescribed in Section 3 of the 1963 Act), to show cause why he should not be required to restore the land to its original state or to bring it in conformity with the provisions of the 1963 Act or the Rules framed thereunder (as the case may be). If the person fails to show cause, as required by the competent authority; the competent authority, under the mandate of Section 12(2) of the 1963 Act may pass an order, "......requiring him to restore such land or building to its original state or to bring it in conformity with the provisions of the Act or the Rules within a further period of seven days....."
8. It is the case of the petitioner that he attended the office of the District Town Planner (E), Panipat in terms of the show cause notice referred to above on 8-1-2002, but the District Town Planner (E), Panipat, was not present in his office. The petitioner, therefore, addressed a communication dated 8-1-2002 to the District Town Planner (E), Panipat. The aforesaid communication is relevant to the issues raised by the petitioner, and is. thus, being extracted here-under for the facility of reference :--
With reference to your above-referred notice, I am to submit as under :--
1. That in this notice, along with reply you have asked me to furnish Site Plan, Registration Deed, copy of Jamabandi. Khasra Girdawari and Shazra Plan. Out of these documents, I am, to procure certain documents from different departments, which is likely to take some time. I may submit that I have engaged one Draftsman to prepare Site Plan. My original Title Deeds presently are not traceable. I have applied for its certified copies in the office of Sub-Registrar, Israna. Similarly I have also applied for copies of Jamabandi, Khasra Girdawari and Shazra Plan, which would be provided to me within a period often days. 1 am trying my level best to procure all these documents, but it takes time to procure these documents from different Departments.
2. That before submitting my reply, I am to inspect the copy of the alleged notification dated 23-2-1982, declaring the controlled area, copies of newspaper cuttings showing the compliance of provisions of Section 4(2) of the Act regarding publication of Notification, record pertaining to preparation of the development plan under Section 5 of the Act, records/documents pertaining to fulfilment of requirements carried out under Rules 8, 9 and 10 of the Punjab Scheduled Roads and Controlled Areas (Restriction of Unregulated Development) Rules, and record pertaining to sanctioned development plan.
3. That you would kindly agree that in order to furnish detailed reply, inspection of all these documents is very essential and in the absence of these vital documents, I am unable to furnish detailed reply.
I request your honour to extend time for furnishing reply to your above-referred notice and for submitting documents called for."
The original show cause notice required the petitioner to produce his defence along with the documents referred to above within a period of seven days in terms of the mandate of Section 12(2) of the 1963 Act. The communication extracted above reveals that the petitioner had no material in his possession to rebut the contention of the authorities. In para-1 of his reply, he expressly mentioned that he would require at least 10 days to procure the required documents. He also indicated that he needed some more time to inspect the notification dated 23-2-1982 and other relevant documents in connection therewith including the newspaper publications in respect of the notification dated 23-2-1982. On account of non-availability of the relevant material in his possession, the petitioner prayed for extension of time in order to respond to the show cause notice issued to him.
9. Despite the fact that the petitioner had claimed only seven day's time in para-1 of his communication dated 8-1-2002 to procure the relevant material and to place it before the District Town Planner (E), Panipat. he failed to furnish any reply to the show cause notice dated 1-1-2002; whereupon the District Town Planner (E), Panipat, exercising the powers vested in him under Section 12(2) of the 1963 Act, directed the petitioner by an order dated 30-1 -2002 to restore the land owned by him in Village Naultha to its original state and to bring it in conformity with the provisions of 1963 Act within a period of seven days (from the date of the issuance of the order dated 30-1-2002).
10. Dissatisfied with the order dated 30-1-2002 passed by the District Town Planner (E), Panipat, the petitioner filed a suit challenging the legality of the order dated 30-1-2002 as also the validity of the notifications dated 10-9-1971 and 23-2-1982 issued by the State Government, declaring the area around the municipal limits of Panipat as "controlled area" and additional "controlled area" respectively. In response to the suit preferred by the petitioner in the Court of the Civil Judge (Junior Division), Panipat, a written statement was filed on behalf of the defendants. In the preliminary objections, it was contended that the Civil Court had no jurisdiction to entertain the grievance raised by the petitioner in terms of the mandate of Section 21 of the 1963 Act and further that, an order passed under Section 12 of the 1963 Act is appealable before the Tribunal constituted under the provisions of 1963 Act within a period of 60 days of the decision. On merits, it was specifically stated that the land of the petitioner is situated in Rectangle No. III, and falls within the land declared as "controlled area". It was also categorically averred in the written statement that the petitioner had raised unauthorised construction without prior permission for change of land-use and had thus, violated the provisions of the 1963 Act. Taking a cue from the preliminary objection raised in the written statement (filed in response to the civil suit preferred by the petitioner), the petitioner filed an appeal before the Tribunal (constituted under Section 12-C of the 1963 Act), impugning the order dated 30-1 -2002. In the aforesaid appeal, the petitioner also challenged the notifications dated 10-9-1971 and 23-2-1982 contesting the validity of the aforesaid two notifications vide which "controlled area" and additional "controlled area" was declared by the State Government around the municipal limits of Panipat.
11. On 12-7-2002, (during the course of hearing of the instant writ petition), at the request of the learned counsel for the petitioner, the case was adjourned to 19-7-2002, however, on account of the assertion made by the learned counsel for the petitioner, that in case a restraint order was not passed the petitioner would be dispossessed and his building would be demolished; this Court without issuing notice of motion, passed a restraint order staying "dispossession/ demolition of the building" till the next date of hearing. On 19-7-2002 (i.e. the next date of hearing after 12-7-2002), learned counsel for the petitioner sought further time to place on record some more documents so as to establish that the property in dispute belonging to the petitioner (over which he has effected construction) does not fall in the land declared as "controlled area" and that the findings recorded by the District Town Planner (E), Panipat in the aforesaid context are incorrect. In order to ensure that the petitioner does not suffer an irreparable injury the restraint order passed by the Court on 12-7-2002 was extended. In compliance with the aforesaid request made by the petitioner, he filed C. M. No. 21412 of 2002. Through the aforesaid application the petitioner placed on the record of this case various exchange/sale/relinquishment/gift deeds depicting the transfer of ownership of the land in question, in the name of the petitioner. It is, however, extremely relevant to notice that none of the documents placed on record through the aforesaid miscellaneous application is relevant to determine whether or not the land owned by the petitioner (which is subject-matter of the order passed by the District Town Planner (E), Panipat), falls within or beyond the additional "controlled area" declared vide notification dated 23-2-1982.
12. The first contention of the learned counsel for the petitioner is that the order passed by the District Town Planner (E), Panipat, dated 30-1-2002, is in violation of the rules of natural justice. In this behalf, it is submitted that the petitioner was summoned by the District Town Planner (E), Panipat, for a personal hearing on 8-1-2002. The petitioner attended the office of the District Town Planner (E), Panipat, on 8-1-2002 but found that the officer was missing from his office. In the absence of the District Town Planner (E), Panipat, the petitioner considered it appropriate to address a communication (dated 8-1-2002) to the officer. Despite his aforesaid communication, the District Town Planner (E), Panipat, without affording the petitioner any further opportunity of hearing passed the impugned order on 30-1-2002. Dissatisfied with the order dated 30-1-2002, the petitioner preferred an appeal before the Tribunal. While acknowledging the fact noticed in the appellate order, namely, that he had been required to appear in person and explain his position to the Tribunal but he had failed to do so, it is contended that the violation of the rules of natural Justice by. the District Town Planner (E), Panipat, could not be cured by a post-decisional hearing by the Appeallate Authority. To press his aforesaid contention, learned counsel for the petitioner has placed reliance on the decision rendered by the Apex Court in State of U.P. v. Mohammad Nooh, AIR 1958 SC 86, wherein the Constitution Bench of the Supreme Court had held as under :--
"If an inferior Court or Tribunal of first instance acts wholly without jurisdiction or patently in excess of jurisdiction or manifestly conducts the proceedings before it in a manner which is contrary to the rules of natural justice and all accepted rules of procedure and which offends the superior Court's sense of fair play the superior Court may. we think, quite properly exercise its power to issue the prerogative writ of certiorari to correct the error of Court of Tribunal of first instance, even if an appeal to another inferior Court or Tribunal was available and recourse was not had to it or if recourse was had to it, it confirmed what ex facie was a nullity for reasons aforementioned."
Learned counsel for the petitioner also placed reliance on the decision rendered by the Apex Court in Institute of Chartered Accountants of India v. L. K. Ratna (1986) 4 SCC 537 : (AIR 1987 SC 71), wherein while deliberating on the issue of natural justice, the Apex Court extracted observations made in the treatise "Administrative Law" (5th edn.) of Sir William Wade, wherein he had opined that the rules of natural justice should be observed at both stages i.e. in the original proceedings as well as at the appellate stage in the following words :--
"If natural justice is violated at the first stage, the right of appeal is not so much a true right of appeal as a corrected initial hearing : instead of fair trial followed by appeal, the procedure is reduced to unfair trial followed by fair trial."
The Apex Court, in the aforesaid judgment, also extracted observations made by Megarry, J. in Leary v. National Union of Vehicle Builders, (1971) I Ch 34, 49, wherein it was concluded as under :--
"If one accepts the contention that a defeet of natural justice in the trial body can be cured by the presence of natural justice in the appellate body, this has the result of depriving the member of his right of appeal from the expelling body. If the rules and the law combine to give the member the right to a fair trial and the right of appeal, why should he be told that he ought to be satisfied with an unjust trial and a fair appeal ? Even if the appeal is treated as a hearing de novo, the member if being stripped of his right to appeal to another body from the effective decision to expel him. I cannot think that natural justice is satisfied by a process whereby an unfair trial, though not resulting in a valid expulsion, will nevertheless have the effect of depriving the member of his right of appeal when a valid decision to expel him is subsequently made. Such a deprivation would be a powerful result to be achieved by what in law is a mere nullity; and it is no mere triviality that might be justified on the ground that natural justice does not mean perfect justice. As a general rule, at all events, I hold that a failure of natural justice in the trial body cannot be cured by a sufficiency of natural justice in an appellate body."
While drawing its conclusions in Institute of Chartered Accounts of India v. L. K. Ratna's case (AIR 1987 SC 71) (supra) the Supreme Court endorsed the view expressed by Sir William Wade and Megarry, J. extracted above by observing :
".......There is manifest need to ensure that there is no breach of fundamental procedure in the original proceeding, and to avoid treating an appeal as an overall substitute for the original proceeding."
In the context of the rules of natural justice reliance was also placed by the learned counsel of another decision rendered by the Apex Court in S. L. Kapoor v. Jagmohan, (1980) 4 SCC 379 : (AIR 1981 SC 136), wherein the Court observed as under :--
"In our view the principles of natural justice know of no exclusionary rule dependent on whether it would have made any difference if natural justice had been observed. The non-observance of natural justice is itself prejudice to any man and proof of prejudice independently of proof of denial of natural justice is unnecessary Again in State Bank of Patiala v. S. K. Sharma,(1996) 3 SCC 364 : (AIR 1996 SC 1669), while dealing with the subject-matter of departmental enquiry, after noticing a plethora of decisions in respect of rules of natural justice, the Supreme Court drew its conclusions in paragraph 33. The aforesaid conclusions are being extracted hereunder.-
"We may summarise the principles emerging from the above discussion. (These are by no means intended to be exhaustive and are evolved keeping in view the context of disciplinary enquiries and orders of punishment imposed by an employer upon the employee) :
(1) An order passed imposing a punishment on an employee consequent upon a disciplinary/departmental enquiry in violation of the rules/regulations/statutory provisions governing such enquiries should not be set aside automatically. The Court or the Tribunal should enquire whether (a) the provision violated is of a substantive nature, or (b) whether it is procedural in character.
(2) A substantive provision has normally to be complied with as explained hereinbefore and the theory of substantial compliance or the test of prejudice would not be applicable in such a case.
(3) In the case of violation of procedural provision, the position is this procedural provisions are generally meant for affording a reasonable and adequate opportunity to the delinquent officer/employee. They are. generally speaking, conceived in his interest. Violation of any and every procedural provision cannot be said to automatically vitiate the enquiry held or order passed. Except cases falling under -- "no notice", "no opportunity" and "no hearing" categories, the complaint of violation of procedural provision should be examined from the point of view of prejudice, viz., whether such violation has prejudiced the delinquent officer/ employee in defending himself properly and effectively. If it is found that he has been so prejudiced, appropriate orders have to be made to repair and remedy the prejudice including setting aside the enquiry and/or the order of punishment. If no prejudice is established to have resulted therefrom, it is obvious, no interference is called for. In this connection, it may be remembered that there may be certain procedural provisions which are of a fundamental character, whose violation is by itself proof of prejudice. The Court may not insist on proof of prejudice in such cases. As explained in the body of the judgment, take a case where there is a provision expressly providing that after the evidence of the employer/Government is over, the employee shall be given an opportunity to lead defence in his evidence, and in a given case, the enquiry officer does not give that opportunity in spite of the delinquent officer/employee asking for it. The prejudice is self-evident. No proof of prejudice as such need be called for in such a case. To repeat, the test is one of prejudice, i.e., whether the person has received a fair hearing considering all things. Now, this very aspect can also be looked at from the point of view of directory and mandatory provisions, if one is so inclined. The principle stated under (4) hereinbelow is only another way of looking at the same aspect as is dealt with herein and not a different or distinct principle.
(4) (a) In the case of a procedural provision which is not of a mandatory character, the complaint of violation has to be examined from the standpoint of substantial compliance. Be that as it may, the order passed in violation of such a provision can be set aside only where such violation has occasioned prejudice to the delinquent employee.
(b) In the case of violation of a procedural provision, which is of a mandatory character, it has to be ascertained whether the provision is conceived in the interest of the person proceeded against or in public interest. If it is found to be former, then it must be seen whether the delinquent officer has waived the said requirement, either expressly or by his conduct. If he is found to have waived it, then the order of punishment cannot be set aside on the ground of the said violation. If, on the other hand, it is found that the delinquent officer/employee has not waived it or that the provision could not be waived by him, then the Court or Tribunal should make appropriate directions (include the setting aside of the order of punishment), keeping in mind the approach adopted by the Constitution Bench in B. Karunakar. The ultimate test is always the same, viz.. test of prejudice or the test of fair hearing, as it may be called.
(5) Where the enquiry is not governed by any rules/regulations/statutory provisions and the only obligation is to observe the principles of natural justice -- or, for that matter, wherever such principles are held to be implied by the very nature and impact of the order/action -- the Court or the Tribunal should make a distinction between a total violation of natural justice (rule of audi alteram partem) and violation of a facet of the said rule, as explained in the body of the judgment. In other words, a distinction must be made between "no opportunity" and no adequate opportunity, i.e., between "no notice"/ "no hearing" and "no fair hearing" (a) in the case of former, the order passed would undoubtedly be invalid (one may call it void or a nullity if one chooses to). In such cases, normally, liberty will be reserved for the Authority to take proceedings afresh according to law. i.e.. in accordance with the said rule (audi alteram partem). (b) But in the latter case, the effect of violation (of a facet of the rule of audi alteram partem) has to be examined from the standpoint of prejudice; in other words, what the Court or Tribunal has to see is whether in the totality of circumstances, the delinquent officer/employee did or did not have a fair hearing and the orders to be made shall depend upon the answer to the said query. (It is made clear that this principle (No. 5) does not apply in the case of rule against bias, the test in which behalf are laid down elsewhere.) (6) While applying the rule of audi alteram partem (the primary principle of natural justice) the Court/Tribunal/Authority must always bear in mind the ultimate and overriding objective underlying the said rule, viz.. to ensure a fair hearing and to ensure that there is no failure of justice. It is this objective which should guide them in applying the rule to varying situations that arise before them.
(7) There may be situations where the interests of State or public interest may call for a curtailing of the rule of audi alteram partem. In such situations, the Court may have to balance public/State interest with the requirement of natural justice and arrive at an appropriate decision."
13. The question to be determined in the instant case is whether the insistence of a personal hearing by the petitioner within the framework of the rules of natural justice is justified in the facts and circumstances of the present case?
14. Under the mandate of rules of natural justice, no one can be Inflicted with adverse civil consequences, without issuing him a notice informing him the basis of the contemplated action, and affording him an opportunity to rebut the same. Under the latter requirement, in certain cases, the right to a personal hearing has been considered as an essential ingredient of the rules of natural justice. Section 12 of the 1963 Act has been extracted above. Relevant for the present purpose is Sub-section (2) of Section 12. Its perusal reveals that the authority designated under the provisions of the 1963 Act must serve a notice calling upon the concerned person (who is alleged to have committed a breach of the provisions of the 1963 Act) to snow cause why he should not be required to restore the land (in respect of which the alleged contravention has been committed) to its original state or to bring it in conformity with the provisions of the 1963 Act, or the rules framed thereunder (as the case may be). The first requirement of the rules of natural justice, noticed in the preceding paragraph has been expressly incorporated in Section 12(2) of the 1963 Act. The aforesaid requirement in the present case has been abided by, inasmuch as, the petitioner was issued a notice dated 1-1-2002. Its perusal shows that the same is in conformity with the provisions of sub-section (2) of Section 12 of the 1963 Act. The petitioner has not impugned the validity of the aforesaid show cause notice (dated 1-1-2002). Thus viewed, it is clear that the requirement of Informing the aggrieved person the basis on which this contemplated action is being taken has been fully complied with.
15. Insofar as the second ingredient of the rules of natural justice, namely, an effective opportunity which enables the concerned party to rebut the conclusions drawn against him is concerned, the mandate of Section 12 (2) of the 1963 Act only requires the competent authority to issue a show cause notice to the concerned person "..... and if such a person fails to show cause to the satisfaction of the Director within a period of seven days, the Director may pass an order....."The mandate of Section 12(2) of the 1963 Act does not incorporate the requirement of a personal hearing. In fact, Section 12(2) of the 1963 Act places the burden on the concerned person to furnish his reply, to the show cause notice, within a period of seven days. In case no reply is furnished within the stipulated time, it is open to the concerned authority to take such action as he may consider appropriate within the framework of the 1963 Act. Can it be, therefore, concluded that the mandate of Section 12(2) of the 1963 Act by Implication excludes one of the components of the above-mentioned second ingredients of the rules of natural justice, namely, the right of a personal hearing? Before adverting to the question posed above, it would be necessary to first arrive at the conclusion whether the rules of natural justice can indeed be excluded by the mandate of a statute? In this behalf, reference may be made to the decision rendered by the Supreme Court in Dr. Umrao Singh Choudhary v. State of M.P. 1994 (4) SCC 328 wherein the Supreme Court observed as under :--
"Section 14 engrafts and elaborate procedure to conduct an enquiry against the Vice-Chancellor and after giving reasonable opportunity, to take action thereon for his removal from the office. Section 52 engrafts an exception thereto. The condition precedent, however, is that the State Government should be satisfied, obviously on objective consideration of the material relevant to the issue, as on record, that the administration of the University cannot be carried out in accordance with the provisions of the Act, without detriment to the interest of the University, and that it is expedient in the interest of the University and for proper administration thereof, to apply in a modified form, excluding the application of Sections 13 and 14, etc. and to issue the notification under Section 52(1). By necessary implication, the application of the principle of natural justice has been excluded. In view of this statutory animation the contention that the petitioner is entitled to the notice and an opportunity before taking action under Section 52(1) would be self-defeating. The principle of natural justice does not supplant the law, but supplements the law. Its application may be excluded, either expressly or by necessary implication."
Again in Union of India v. Col. J.N. Sihna (1977) 2 SCC 458 : (AIR 1971 SC 40) the Apex Court observed as under :--
"It is true that if a statutory provision can be read consistently with the principles of natural justice, the Courts should do so because it must be presumed that the Legislatures and the statutory authorities intend to act in accordance with the principles of natural justice. But if on the other hand a statutory provision either specifically or by necessary implication excludes the application of any or all the principles of natural justice then the Court cannot ignore the mandate of the Legislature or the statutory authority and read into the concerned provision the principles of natural justice."
The aforesaid legal position has been affirmed in State Government Houseless Harijan Employees' Association v. State of Karnataka (2001)1 SCC 610 : (AIR 2001 SC 437). It is, therefore, evident that the rules of natural justice can be excluded either expressly or impliedly by a statute.
16. The petitioner claims a right of personal hearing under the rules of natural justice. In our view, the right of a personal hearing has been impliedly excluded. This conclusion of ours is drawn from the words "......
and if such a person fails to show cause to the satisfaction of the Director within a period of seven days, the Director may pass an order......" used in Section 12(2) of the 1963 Act. The only right available to the concerned person after the receipt of a show cause notice, is a response to the satisfaction of the competent authority within a period of seven days. In case he does not make a response within the stipulated time it is open to the competent authority to pass an appropriate order. Having arrived at the conclusion that the right of a personal hearing is not a sine qua non, before the competent authority passes an appropriate order under Section 12(2) of the 1963 Act, it is inevitable to conclude that the order dated 30-1 -2002 passed by the District Town Planner (E), Panipat cannot be found to be defective merely on account of the fact that the petitioner was not afforded a personal hearing by the District Town planner (E), Panipat.
17. The conclusion drawn above would stand reaffirmed even on a closer examination of the conditions for taking action under Section 12 of the 1963 Act. Action under Section 12 of the 1963 Act can only be taken against a person who has effected change of land use, over land declared as "controlled area". So far as the issue of change of land use is concerned, it would be relevant to notice the averments made by the petitioner, in paragraph 4(xi) of the writ petition :--
"That in the present case, the petitioner had started raising construction in the month of August 2001, whereas the Show Cause Notice under Section 12 of the 1963 Act, has been issued in January 2002, i.e. after a period of more than five months. Thus, in view of the above, once the Government itself has allowed the petitioner to raise such a huge construction, they are now estopped from taking any action against the petitioner, after completion of outer structure of the Unit. Recent photographs of the building along with the Site Plan, are being annexed herewith as Annexure P-14 (Colly)."
Having acknowledged the fact that he had raised construction over his land in August, 2001, it is evident that the conceded position is that the petitioner has changed land-use after the issuance of the notification dated 23-2-1982. In the background of the aforesaid factual position, the only question which remains to be considered is, whether change of land use has been made over land declared as "controlled area" under Section 4 of the 1963 Act. In order to enable the petitioner to rebut the aforesaid fact, he was issued a show cause notice dated 1-1-2002 requiring him to produce 4 documents (already enumerated above). The relevant question to be considered is whether the right of a personal hearing was necessary in order to enable the petitioner to show that the area over which he has effected construction does not fall in the land declared as "controlled area" under Section 4 of the 1963 Act. Our answer to the aforesaid query is in the negative. The aforesaid conclusion is based on the fact that a personal hearing cannot establish whether the change of land use has been made over "controlled area" or not; only documents establishing the location of the land over which construction has been effected, would be relevant for the said purpose. It is, therefore, evident that the non-grant of a personal hearing to the petitioner would not in any manner prejudice his rights. That being so, the rules of natural justice in the present case cannot be extended to include an opportunity of personal hearing in the present case. In fact learned counsel for the petitioner had placed reliance on the decision rendered in S. L. Kapoor's case (AIR 1981 SC 136) (supra) wherein the Apex Court had observed that the principles of natural justice know of no exclusionary rule and further, that the non-observance of the rules of natural justice is by itself a matter of prejudice to the concerned person. A relevant extract of the judgment (to the extent it was relied upon by the learned counsel for the petitioner) has been reproduced above. The extract reproduced above, however, does not constitute the totality of the legal position laid down by the Apex Court. In addition to the portion extracted above, the Apex Court in S. L. Kapoor's case (supra), also observed :--
"As we said earlier where on the admitted or indisputable facts only one conclusion is possible and under the law only one penalty is permissible, the Court may not issue its writ to compel the observance of natural justice, not because it is not necessary to observe natural justice but because Courts do not issue futile writs." Rather than producing the documents demanded by the District Town Planner (E), Panipat, the petitioner in his communication dated 8-1-2002, submitted that he would be able to produce the required documents after a period of ten days. Be that as it may. it is evident from the pleadings of the present case that the aforesaid documents were not furnished to the District Town Planner (E), Panipat even till 30-1-2001 (when the impugned order was passed) i.e. when a direction was issued to the petitioner to restore the land of Khewat No. III/ 11, 8, 12 etc. in village Naultha to its original state, within a period of seven days. In fact, it is evident from the appellate order that the petitioner had been required to appear before the Tribunal in person and explain his position but he failed to do so. It is. therefore, evident that the record on the basis of which it could be established that the construction effected by the petitioner was not over land which had been declared as "controlled area", was never produced by the petitioner even before the Appellate Authority. This Court on the asking of the petitioner, adjourned the proceedings of this case on 19-7-2002 so as to enable him to place on record documents to show, that the property in dispute over which he has admittedly effected construction, does not fall within the controlled area. In order to comply with the aforesaid undertaking, the petitioner filed C. M. No. 21412 of 2002. None of the documents placed on record of this case through C. M. No. 21412 of 2002 are relevant to depict whether or not the land on which the petitioner has effected construction falls within or outside the "controlled area" (declared vide notification dated 23-2-1982). Three times over the petitioner has been afforded an opportunity to produce relevant material to show that the area over which construction has been effected by him does not fall within the area in respect of which an order under Section 12 of the 1963 Act can be passed. On all three occasions the petitioner has failed to do so. In such circumstances, when despite repeated opportunities the petitioner has failed to produce relevant documents to establish that the land over which he has effected construction is not located within the "controlled area", it is inevitable to draw an adverse inference against him, namely, that the petitioner's land on which he has effected construction is indeed located within the "controlled area" declared under Section 4 of the 1963 Act. For the same reason as noticed above, namely, that it is not a personal hearing that would establish whether or not the contemplated action should be taken against the petitioner; but only documents in the nature of documents mentioned in the show cause notice dated 1-1-2002 (or any other such document) which could establish that the land of the petitioner over which he has effected construction does not fall within the "controlled area", in our view the observance of the rules of natural justice or the grant of a personal hearing would be a futile exercise. Obviously a futile notice cannot be issued in order to comply with a direction which would not lead to any effective result.
18. In view of the conclusion drawn above, namely, that the petitioner was not entitled to a personal hearing at the hands of the District Town Planner (E), Panipat. the judgments relied upon by the learned counsel for the petitioner, referred to above, wherein it has been hold by the Apex Court that a personal hearing afforded at the appellate stage would not cure the defect of not affording a personal hearing at the first/ original stage, are rendered irrelevant insofar as the present controversy is concerned.
19. The second contention raised on behalf of the petitioner is that the declaration of "controlled area" vide notification dated 10-9-1971 as well as the declaration of additional "controlled area" vide notification dated 23-2-1982 are violative of the provisions of Section 4(1) and 4(2) of the 1963 Act. Insofar as the notification dated 10-9-1971 is concerned, it is the case of the petitioner, that the aforesaid notification would have been valid only if it had been published in at least two newspapers in a language other than English. It is the case of the petitioner that the notification dated 10-9-1971 cannot be considered to have been published in two newspapers in a language other than English. The submission of the petitioner, therefore, is that the notification dated 10-9-1971 being an invalid notification, cannot be accepted to have declared any area around Panipat as "controlled area". In so far as the notification dated 23-2-1982 is concerned, the case made out by the learned counsel for the petitioner is that vide notification dated 23-2-1982, the State Government declared an additional "controlled area", i.e. an area In addition to the one referred to in the notification dated 10-9-1971 as controlled area; and in view of the fact that the notification dated 10-9-1971 is not a valid notification, any addition thereto made by the notification dated 23-2-1982 would also be invalid. As noticed above, it is not disputed that the notification dated 10-9-1971 was published in the Indian Express dated 16-11-1971 in English, in the "Dainik Hindi Milap" dated 16-11-1971 in Hindi, and on 25-2-1992 after a gap of 21 years in the "Veer Arjun" in Hindi. It is submitted that the last publication in the "Veer Arjun" in Hindi cannot be counted towards the publications referred to in Section 4(2) of the 1963 Act on account of the inordinate delay in the said publication. In order to substantiate his claim, learned counsel for the petitioner has placed reliance on a decision rendered by the Supreme Court in Deepak Pahwa v. Lt. Governor of Delhi AIR 1984 SC 1721, wherein the Supreme Court observed as under :--
"It may be noticed at once that Section 4(1) does not prescribe that public notice of the substance of the notification should be given in the locality simultaneously with the publication of the notification in the Official Gazette or immediately thereafter. Publication in the Official Gazette and public notice in the locality are two vital steps required to be taken under Section 4(1) before proceeding to take the next step of entering upon the land under Section 4(2). The time factor is not a vital element of Section 4(1) and there is no warrant for reading the words "simultaneously" or "immediately thereafter" into Section 4(1). Publication in the Official Gazette and public notice in the locality are the essential elements of Section 4(1) and not the simultaneity or immediacy of the publication and the Public Notice. But since the steps contemplated by Section 4(2) cannot be undertaken unless publication is made and public notice given as contemplated by Section 4(1), it is implicit that the publication and the public notice must be contemporaneous though not simultaneous or immediately after one another. Naturally contemporaneity may involve a gap of time and by the very nature of the things, the publication in the Official Gazette and the public notice in the locality must necessarily be separated by a gap of time. This does not mean that the publication and the public notice may be separated by a long interval of time. What is necessary is that the continuity of action should not appear to be broken by a deep gap. If there is publication in the Gazette and if there is public notice in the locality, the requirements of Section 4(1) must be held to be satisfied unless the two are unlinked from each other by a gap of time so large as may lead one to the prima facie conclusion of lack of bona fides in the proceedings from acquisition. If the notification and the public notice are separated by such a large gap of time, it may become necessary to probe further to discover if there is any cause for the delay and if the delay has caused prejudice to anyone."
Challenge to the notification dated 10-9-1971 on the ground raised by the petitioner does not impress us. The pleadings in the writ petition acknowledge the fact that the notification dated 10-9-1971 was published in two newspapers printed in a language other than English i.e. in Hindi in the "Dainik Hindi Milap" dated 16-11-1971 and again in Hindi in the "Veer Arjun" dated 25-2-1992. The only question raised is that one of the publications having been made after a lapse of a period of 21 years, should not be considered sufficient to validate the notification dated 10-9-1971. Even the judgment of the Apex Court relied upon by the learned counsel for the petitioner, referred to above, cannot be of any assistance to him. Insofar as the present case is concerned, all the vital ingredients of the mandate of Section 4 of the 1963 Act have been complied with, obviously, in complying with the said mandate, there is a delay of a period of 21 years in one publication. If the delay in the publication prejudicially affects the petitioner, he would be justified in raising a grievance. Additionally, if the delay was occasioned by lack of bona fides, the petitioner would be justified in raising his claim. Neither of the aforesaid two infirmities have prejudiced the petitioner. According to the various exchange/sale/relinquishment/gift deeds placed on the record of this case through C.M. No. 21412 of 2002 the title of the land in question was vested in the petitioner only in 2001, while the second publication of the notification dated 10-9-1971 was made in the "Veer Arjun" on 25-2-1992. Since the petitioner did not even own the land in question before 2001, he certainly cannot claim either prejudice or lack of bona fides. Insofar as the delayed publication is concerned, the petitioner has not pointed out any other basis of prejudice. Thus viewed, merely on account of the fact that the one publication of the notification under Section 4 of the 1963 Act was made after 21 years cannot be a valid justification at the hands of the petitioner either to challenge the said notification or to impugn the orders passed against the petitioner.
20. There is another way to examine the issue in hand that the first notification dated 10-9-1971 being defective, the subsequent notification based on the said (first) notification would automatically be defective. It is the admitted case of the petitioner that insofar as the second notification dated 23-2-1982 is concerned, the same was published in three newspapers i.e. in the "Dainik Hindi Milap" dated 19-7-1982 in Hindi, in the Tej" dated 23-2-1982 in Urdu, and in the "National Herald" dated 19-7-1982 in English. It is, therefore, evident that the notification dated 23-2-1982 was published in conformity with the provisions of Section 4 of the 1963 Act in an English newspaper and in two other newspapers in a language other than English. It is also evident from the dates referred to above that there was no delay in the publication of the notification dated 23-2-1982. It is the admitted position that the notification dated 23-2-1982 extended the area already notified through the notification dated 10-9-1971. In a way, the subsequent notification dated 23-2-1982 amended the earlier notification dated 10-9-1971 by adding an additional area to the area already declared as "controlled area" by the first notification dated 10-9-1971. Since the subsequent notification dated 23-2-1982 does not suffer from any defect, can it be stated to have cured a defect, if any, in the notification dated 10-9-1971 ?The query raised above can be answered on the basis of the decision rendered by a Constitution Bench of the Supreme Court in Bachan Singh v. Union of India, AIR 1973 SC 441, wherein the Supreme Court observed as under :--
"In 1969 the Class 1 Service Rules were amended. The important amendments were Rule 4 and substitution of Rule 21 in place of Rules 21, 22 and 23. Rule 4 dealt with the quotas fixed for direct recruitment and promotion to Class I Service. The substituted Rule 21 stated that appointment by promotion was to be made by selection and promotion was not to be as a matter of right. The real importance of the amendments of the rules in the year 1969 lies in the fact that the amendments were made by the President in exercise of the powers conferred by the proviso to Article 309 of the Constitution. As a result of the 1969 amendment it follows that the entire body of rules of Class I Service became statutory rules by incorporation."
The Supreme Court, in the aforesaid case, concluded that an amendment made by the President (in exercise of the powers conferred in him under Article 309 of the Constitution of India) to rules which had no statutory force, resulted in the entire body of rules assuming statutory character. Stated in other words, even though a provision when originally enacted, lacks legal or statutory force on account of its having been enacted by an authority having no jurisdiction or on account of some procedural infirmities, or for some other like reason, it would be validated and would attain statutory force, if it is amended by an authority having jurisdiction, or during the course of a subsequent examination of the provision by the competent authority the procedure is duly followed, or such other like reason is superseded by valid prescription. It must be assumed in the present case, on the aforesaid analogy, that the competent authority re-examined the earlier notification dated 10-9-1971 in its entirety while effecting a amendment therein and thus, even if there was some invalidity in the earlier notification, the same would stand cured by the subsequent notification dated 23-2-1982 wherein there was no defect, procedural, or otherwise. A Division Bench of this Court in The Public State Co-operative Supply and Marketing Federation Limited, Chandigarh v. Des Raj, (L.P.A. No. 1193 of 1981 decided on 18-2-1985), arrived at the same conclusion by holding as under :--
"The impugned rules were amended in accordance with the provisions of Section 84-A of the Act from time to time and that one such amendment was effected on 4-4-1970. In view of the statutory amendment of 4-4-1970, the entire body of the impugned rules became statutory in view of the ratio of Bachan Singh's case (supra)." Thus, even if it is assumed for the sake of argument (despite the conclusion drawn to the contrary in the foregoing paragraph), that the notification dated 10-9-1971 was not valid on account of the delay in one of the publications, the said defect, if any, would automatically stand cured by the subsequent notification dated 23-2-1982 since there was no defect in the notification, dated 23-2-1982. Accordingly, the conclusion drawn in the forgoing paragraph is re-endorsible even on the basis of a consideration, separate and distinct from that on the basis of which the conclusion in the foregoing paragraph was arrived at.
21. Since we have already concluded that the notification dated 10-9-1971 is valid, on account of the reasons recorded in the preceding two paragraphs, the contention advanced by the learned counsel for the petitioner namely, that the first notification dated 10-9-1971 being invalid the subsequent notification dated 23-2-1982 which rests on the said (first) notification would automatically be invalid, deserves to be rejected.
22. It would be unfair to the learned counsel for the petitioner if we do not notice yet another argument addressed by the learned counsel for the petitioner by which he had sought to challenge the validity of the notification dated 23-2-1982. It is the contention of the learned counsel for the petitioner that the mandate of Section 4(2) of the 1963 Act requires the State Government to publish the notification declaring a piece of land as "controlled area" in at least two newspapers "....... printed in a language other than English". According to the learned counsel for the petitioner, in view of the mandate of the Haryana Official Language Act, 1963 it was open to the State Government only to publish the notification dated 23-2-1982 in a language declared by the State as the language usable for official purposes and since under the Haryana Official Language Act the State of Haryana had not declared Urdu as the language which could be used for official purposes, the publication of the notification dated 23-2-1982 in the "Tej" in Urdu did not satisfy the requirements of law. In our view, the aforesaid argument is wholly misconceived. Section 4 of the 1963 Act requires publication of a notification of the declaration of a controlled area in at least two newspapers printed in a language other than English. Has the aforesaid requirement been complied with ? As the petitioner's own showing, the notification dated 23-2-1982 was published In two languages in Hindi and in Urdu besides its publication in English. It would be relevant to mention that Hindi and Urdu have been included in the Eighth Schedule to the Constitution of India. In the aforesaid view of the matter, the requirements of Section 4 of the 1963 Act, to our mind, have been fully complied with.
23. The last contention of the learned counsel for the petitioner was that the State had failed to comply with the mandatory procedure laid down under Section 5 of the Act. Having failed to prepare a development plan regarding the controlled area, the provisions of the Act cannot be enforced against the petitioner. In our view, the instant contention is misconceived. Section 5 of the 1963 Act requires the Director to prepare plans in respect of the controlled area indicating the manner and the purpose for which the controlled area can be put to use. The action initiated against the petitioner is not for violation of plans published under Section 5 of the 1963 Act. The show cause notice dated 1-1-2002 expressly states that the action initiated against the petitioner is for violating and contravening the provisions of Section 3 of the 1963 Act, i.e. for change of land use. We, therefore, find no merit in the last contention advanced on behalf of the petitioner.
24. No other argument was advanced.
25. For the reasons recorded above, we find no merit in this petition; the same is, accordingly, dismissed.