Goel Rice and General Mills vs State of Haryana

D.V. Sehgal, J.

The petitionerfirm purchased a piece of land situated in Mauza Patti Chaudhry near new Anaj Mandi, Kaithal, for a sum of Rs. 57,800/, vide two registered saledeeds dated 15.7.1974 and 31.5.1974 with the object of installing Rice and General Mills. It applied to the Director, Food and Civil Supplies, Haryana, in 1975 for permission to install the Mills on this land by submitting site plan thereof, which permission, the petitioner claims, was granted after due verification. The petitioner also applied and secured a loan of rupees two lakhs from the Haryana Financial Corporation for the purpose. After completing all the necessary formalities, the petitioner carried out and completed the construction of the building of the Mills on this land on 19.5.1975. It spent Rs. 1,46,698.32, i.e., Rs. 61,507/ as the cost of the land and other charges and Rs. 85,191.32 as the cost of construction. It also installed machinery of the value of Rs. 1,06,431.53 in the building so constructed. It asserts that, till the construction of the building was completed and the machinery was installed therein, no objection whatsoever was raised by any authority of the State of Haryana.

The petitioner, however, later on, received a notice dated 14.1.1977 (Annexure P.5) from the Divisional Town Planner, Kurukshetra, respondent No. 3, who purportly exercising the powers of the Director, Town and Country Planning, Haryana, under sections 9, 12 and 16 of the Punjab Scheduled Roads and Controlled Areas Restriction of Unregulated Development Act, 1963 (hereinafter referred to as `the Act''), requiring it to stop `further'' construction and show cause why it should not be ordered to restore the land. It was alleged therein that the construction was in contravention of sections 3, 6, 7(1), 8 and 10 of the Act. The petitioner, through his letter Annexure P.6, explained its position and brought to the notice of the Director, Town and Country Planning, Haryana, respondent No. 2, that the building of the Mills had already been constructed, that no violation of the aforesaid provisions of law had taken place and also made a request that its land and the Mills should be released from the provisions of the Act. Respondent No. 2, vide its letter dated 4.5.1977 (Annexure P.7), informed the petitioner that, according to the policy of the State Government for the unauthorised construction, Rs. 25,576/ was being assessed as compositionfee and Rs. 13,128.44 as conversion charges, i.e., Rs. 38,704.44 in all and that, if it agreed to make this payment, the case of the petitioner would be considered for compounding. It appears that the petitioner made a representation against the proposed levy of compositionfee, to which reply dated 6.7.1977 (Annexure P.8) was given by respondent No. 2 asserting that if it wanted the permission to use the land for the Mills, it could be so done after making payment of Rs. 38,704.44 as compositionfee and conversion charges. The petitioner made another representation dated 18.7.1977 (Annexure P.9) which was turned down by respondent No. 2, vide its letter dated 22.9.1977 (Annexure P.10). The petitioner was once again required by respondent No. 2, vide letter dated 1.12.1977 (Annexure P.11), to deposit the said amount of compositionfee and conversion charges by 12.12.1977, failing which, action would be taken against it for the unauthorized construction under the law. As a sequel thereto, on nonpayment of the aforesaid amount by the petitioner, respondent No. 3 served the petitioner with a notice dated 24.2.1978 (Annexure P.12) requiring it to restore the land, implying thereby to demolish the building of the Mills. The petitioner has consequently preferred the present writpetition in this Court, praying for quashing of the notices Annexures P.5 and P.12 and letters Annexures P.7, P.8, P.10 and P.11, by asserting that no notification was issued under section 4 of the Act for declaration of the land, where the building for the Mills was constructed by it, as ``controlled area''''; that no plan for any such ``controlled area'''' had been prepared, approved or finalized in accordance with the provisions of section 5 of the Act.

Respondent No. 2 filed written statement dated 13.7.1978 and also submitted a supplementary affidavit dated 9.8.1978. A preliminary objection has been taken to the effect that the petitioner had agreed to the compounding of the offence and, as such, it was estopped from maintaining the writ petition. It was further asserted that, since a remedy, by way of an appeal under section 10 of the Act, was available to the petitioner, which was not availed of, the writpetition ought not to be entertained. On merits, it was asserted that a declaration of ``controlled area'''' in respect of the of the land where the petitioner had constructed the building for the Mills, was issued, vide the Haryana Government Notification No. 98585DP/71/3652 dated 25.8.1971. It was further maintained that the draft plan had been prepared and published but the same was still under consideration and that final plan had not been published at yet.

I have heard the learned counsel for the petitioner at length. I find that the preliminary objections raised by respondent No. 2 are not sustainable. The correspondence exchanged between the petitioner and the respondents makes it clear that, at no stage, did the petitioner agree to the compounding of the offence. No doubt, it requested for the release of its land from the provisions of the Act but, in spite of pestering by the respondents, it did not agree to the compounding of the socalled offence and making payment of the compositionfee and conversion charges. A perusal of section 10 of the Act shows that an appeal is maintainable where a person is aggrieved by an order of the Director under subsection (2) of section 8 of the Act granting permission or licence subject to conditions of refusing permission or licence. No such cause having arisen to the petitioner, no appeal was maintainable under section 10 of the Act.

Now, coming to the merits of the petition, I find that the notice Annexure P. 5, so far as it alleges violation of section 3 thereof, is invalid. It is not the case of the respondents in their written statement that the building for the Mills has been constructed by the petitioner within 100 metres on either side of the road reservation of any scheduled road. Likewise, the said notice alleging violation of section 6 of the Act also cannot be sustained because it is the admitted case of the respondents that final plan, as envisaged by section 5(7) of the Act, had not been approved and notified by the time the written statement was filed. It could not, therefore, be said that the building for the Mills had been erected by the petitioner in contravention of the plans and the restrictions and conditions contained therein. It would be of benefit to refer to the following observations of a Division Bench of this Court in Civil Writ Petition No. 1868 of 1964 (Busching Schmitz Limited v. State of Punjab), decided on 13.1.1965 :

``As regards the second point, Mr. Suri objected that there was no specific challenge in the writ petition on the ground that the procedure laid down in section 5 with regard to the publication of the plans etc. of the controlled area had not been followed. All the same, the validity of the notices was challenged on the ground that there had been no contravention of section 3 or section 6 of the Act, and apart from the fact that Mr. Suri could not give any reference to the notification which may have been made by the Government under subsection (4) or (8) of section 5, it is clear from a communication to the petitioner company from respondent No. 2 some time in July, 1964 (which is on the relevant file of respondent No. 3''s office) that the master plan of the department for this particular area is still in the stage of proposal. Obviously, therefore, there was no question at that stage of the application of section 6 to this area, and inasmuch as both the impugned notices recite that action had been taken for contravention inter alia of section 6 of the Act, they are liable to be quashed.''''

No doubt, contravention of sections 7 and 8 of the Act would be involved because the petitioner erected the building for the Mills without securing prior permission of the Director. But, since the notices Annexures P. 5 and P. 12 allege violation of sections 3 and 6 of the Act also and the part of the notice pertaining to these provisions is invalid, the said notices, in my view, are to be held illegal in their entirety. For this, I draw support from Gulzari Lal v. Municipal Committee, AIR 1933 Lahore 935, andMunicipal Commr. Indore City v. Onkardas Guru Gangadas Bairagi, Indore, AIR 1955 N.U.C. (Madhya Bharat) 2394.

Resultantly, this writ petition is allowed, the notices Annexures P. 5 and P. 12 and the letters Annexures P. 7, P. 8, P. 10 and P. 11 are quashed. There shall, however, be no order as to costs.