District Town Planner and another vs Hukam Singh and another

M. M. Kumar, J.—The officers of the State of Haryana, namely District Town Planners of Karnal and Gurgaon have approached this Court

with a prayer for quashing order dated 27.08.2007 (Annexure PI) passed by the Tribunal constituted by the State of Haryana under the Panjab

Scheduled Roads and Controlled Areas (Restriction of Unregulated Development) Act, 1963 (for brevity `the Act''). The Tribunal has set aside

the Show Cause Notices dated 20.01.2004 and 22.01.2004 (Annexure P7) holding that the District Town Planner, Smt. Gurmeet Kaur has acted

against the provisions of the Act, also had tampered with the record and acted very irresponsibly. Vide order dated 22.01.2004 (Annexure P7),

the respondent No. 1 who has been owner of land, was asked to restore the land to its original state by bringing it in conformity with the provisions

of the Act and the rules framed therein. Earlier to passing of the aforementioned order, the petitioners have issued show cause notices to the

respondents under Section 12 of the Act to appear and explain that why the respondent should not be prosecuted for having change use of land

and order be issued to restore the land to its original state. The respondent No. 1 had entered into some agreement with Hutch Private Ltd. Co.

for construction of communication tower without seeking permission for change of land use as per the requirement of Section 8 of the Act. A

Show Cause Notice under Section 12 of the Act was issued which was not replied and in the meantime, respondent No. 1 alongwith Hutch

company continued with the construction. Eventually, order dated 22.01.2004 (Annexure P7) was passed, directing respondent No. 1 to restore

the site as it was before raising of construction. Respondent No. 1 tried to seek help of Civil Court by filing Civil Suit No. 198 of 2004 but it was

eventually withdrawn on 18.12.2007 (Annexure P11). He also filed C.W.P. No. 449 of 2008 claiming that the removal of construction has caused

him huge damages and the same are liable to paid by the petitioners. The Division Bench vide order dated 29.08.2008 noticed the fact of

collaboration agreement as also raising of illegal construction within the controlled area without prior permission of the competent authority and

then on the request made by the respondent No. 1, the writ petition was dismissed as withdrawn on 29.08.2008.

After hearing learned counsel for the parties and perusing the impugned order passed by the Tribunal, we are of the view that the instant petition

deserves to be allowed and the impugned order dated 27.08.2007 is liable to be set aside. The Tribunal has concluded that once the show cause

notice has been issued by fixing a date of hearing then the authorities under the Act are not competent to proceed before the date fixed. The view

of the Tribunal is discernible from the following observation which reads thus :

The dates in the show cause notice and impugned order have also been tampered with which is clear from a hack perusal of the record. There is

also no explanation at all for this. In this regard it will be relevant to state that the reply of Smt. Gurmeet Kaur District Town Planner who passed

the order was called in writing and she submitted her reply dated 27.08.2007 but there is no explanation at all in regard to change in the dates. In

the show cause not give any reason for all this. Even the copy of the impugned order is not the same which was sent to the appellant than the one

kept in the record produced in the Tribunal i.e. the lines ""and are still continuing with the unauthorized construction at site"" are missing in the copy

of the impugned order kept in the office. It also stands unexplained.

The next submission of the appellant that notice of demand dated 30.06.2006 for the recovery of costs of demolition too is illegal and unjustified.

The learned ADA has no argument to defend the issuing of this notice.

Since the impugned order dated 22.01.2004 is illegal and demolition carried out on the basis of this order cannot be justified and is illegal,

therefore, this notice also cannot be held to be legal and unjustified. Accordingly it need to be ignored. The appellant, therefore, cannot be asked

to pay the amount mentioned in the notice.

Therefore, as discussed above, I find that the impugned order and show cause notice dated 30.06.2006 deserved to be set aside and are set

aside. The District Town Planner Smt. Gurmeet Kaur has acted against the provisions of the Act, has tampered with the record and acted in very

irresponsible manner not expected from such an officer. The appellant has been grossly wronged. He has been made to suffer an illegal order is as

much as he was denied the opportunity of hearing. His agony can will be imagined that put in words. The appeal is accepted with costs of Rupees

five thousand to be paid to the appellant the Government will be at liberty to recover it from the officer concerned.

It is true that show cause notice to respondent No. 1 was issued on 20.01.2004. According to the stipulations of the show cause notice,

respondent No. 1 and its collaborator Hutch Private Ltd. Co. were required to stop further construction immediately. However, a report by the

Junior Engineer was received on 21.01.2004 (Annexure P6) stating that the construction activity had been continuing at war footing, which

flagrantly violated the direction giving in the show cause notice served on respondent No. 1 on 20.01.2004. Thereafter; restoration order as per

provisions of Section 12(2) of the Act was issued to respondent No. 1 and the collaborator on 22.01.2004 directing them to stop construction

and to restore the land to its original state. A copy of this notice was sent by registered post to respondent No. 1 and the collaborator. Even one

copy of the order was pasted at the site (Annexures P7 and P8), however, the construction activity did not stop. Therefore, the District Town

Planner, petitioner No. 1 has to take recourse to the provisions of Section 12(3) of the Act which reads thus :

...Provided that even before the expiry of seven days period mentioned in the order under subsection (2), if the Director is satisfied that instead of

stopping the erection of the building or making or extending of the excavation or laying our of 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 persons as arrears of land revenue.

In view of the aforementioned provision, the District Town Planner ordered for demolition of the unauthorized construction at site on

24.01.2004. Accordingly the same was demolished and the material lying at site was confiscated in addition to seven others unauthorized

colonies/construction. The Tribunal has committed a grave error by stating the petitioners should have waited till the date of hearing despite the fact

that respondents were continuing with their illegal activities. On 28.01.2004, the collaborator filed an application in the office of the District Town

Planner, Karnal seeking permission for change of land use for construction of a communication tower on a disputed site. However, before the

application made by the collaborator could be finalized, they withdrew the request as they were no longer interested in the construction of

communication tower at the site belonging to respondent No. 1 (Annexures P9 and P10). After the construction was removed, a demand notice

dated 30.6.2006 for recovery of cost incurred as per provisions of Section 12(3) of the Act was issued to respondent No. 1 directing him to pay a

sum of Rs. 2,000/ as expenses for demolition of unauthorized construction. However, respondent No. 1 took the stand vide his letter dated

01.08.2006 (Annexure P12) that as per the lease deed agreement dated 10.11.2003 with collaborator, it was the collaborator who was

responsible for obtaining all legal permissions. The matter against respondent No. 1 was accordingly dropped and it was decided to recover the

cost of demolition from the sale of material recovered from the site at the time of demolition. Despite accepting the request made by respondent

No. 1, he filed an appeal before the Tribunal challenging the demand. The Tribunal has found the order dated 22.01.2004 as illegal and has also

set aside the show cause notice dated 30.06.2006 by giving findings against the District Town Planner. The findings recorded by the Tribunal are

not borne out and supported by the documents and records. Therefore, we can not accept that the order dated 22.01.2004 directing the

respondents to restore the site and stop further construction could be termed as illegal. Moreover, we find that the respondent No. 1 has earlier

approached this Court by filing CWP No. 449 of 2008 decided on 29.08.2008 claiming damages by alleging that the construction raised by him in

collaboration with the company was legal and demolition by the petitioner was not in accordance with law which has been dismissed as withdrawn.

As a sequel to the above discussion, this petition succeeds. The impugned order passed by the Tribunal (Annexure P1) dated 27.08.2007 is set

aside in the peculiar facts and circumstances of the case be imposed no cost.