Sidhartha Engineers (India) Pvt. Ltd vs State of Haryana

Jawahar Lal Gupta, J.(Oral)

The petitioner herein is a Company. It is aggrieved by the orders dated March 1, 1982 (Annexure P2), September 14, 1983 (Annexure P8) and the order dated August 17, 1984 (Annexure P9). The petitioner purchased a piece of land measuring 13 Bighas and 14 Biswas in village Sadhopur, Tehsil and District Ambala. This land is situate within 8 Kilometers of the outside limits of Ambala City. The petitioner constructed a building on the said land for the installation of an industry. The building is stated to have been completed on December 31, 1981. On the petitioner''s application for a loan from the Haryana Financial Corporation, it was directed to obtain a no objection certificate, from the Town and Country Planning Department. It is claimed that the petitioner applied for the no objection certificate to respondent No. 2 on November 14, 1981. The requisite permission was granted vide order dated March 1, 1982 (Annexure P2). However, besides granting the permission, a penalty of Rs. 42,343.84 for the violation of the provisions of the Punjab Scheduled Roads and Controlled Area Restriction of Unregulated Development Act, 1963 (hereinafter referred to as I. Act) was also imposed. The petitioner represented against this order and prayed for the reduction in the amount. This prayer was declined vide orders dated September 14, 1983 (Annexure P8) and the order dated August 17, 1984 (Annexure P9).

In the petition, a reference has also been made to a show cause notice dated November 29, 1983. However, nothing has been averred with regard to the final outcome in the proceedings in pursuance to the said show cause notice at the stage of arguments. The grievance has been confined to the validity of earlier." orders at Annexure P2, P8 and P9, Consequently, the facts relating to the issue of show cause notice etc. are not being adverted to.

A written statement has been filed on behalf of the respondents. A preliminary objection has been raised that the petitioner is estopped from challenging the validity of the order passed at this instance. It has been further averred that the petitioner has raised unauthorised construction on the land which was detected on February 12, 1981. Show cause notices under section 12 of the Act were issued to the petitioner on April 16, 1981 and July 2, 1981. On June 24, 1981 the petitioner had submitted an application for permission to change the use of the land. This request was declined on August 27, 1981. Thereafter, the petitioner had applied for the composition of the offence on November 14, 1981 in pursuance to which, the order was passed on March 1, 1982. Various other averments made in the petition with regard to thevalidity, of the orders at Annexure P2, P8 and P9 have been also controverted.

Mr. Hemant Gupta, learned counsel for the petitioner has raised a twofold contention. Firstly, he submits that the unauthorised construction which was compounded related to construction which had been raised within 30 metres of the scheduled road. The offence having been compounded, the respondents could not direct the demolition of the construction. Secondly, he submits that in various other places a composition fee @ 10 paise per square metre has been charged while in the present case, the composition fee has been charged at the rate of Rs. 2/ per square metre.

None has appeared on behalf of the respondents.

The relevant portion of the order at Annexure P2 reads as under :

"2. Permission is hereby granted for the change of land use for land measuring 10387 sq. yds. comprising of Khasra Nos. 361, 360, 359, 358 situated at AmbalaKalka Scheduled Road in the controlled area Ambala for Industrial purpose after compounding the offence of unauthorised construction by imposing, a penalty of Rs. 42,343.84 against which a sum of Rs. 10,595.96 has since been received and the balance is to be recovered in 3 annual instalments with interest @ 7%. This permission is subject to the following conditions

That the conditions of the agreement already executed are duly fulfilled and the provisions of the Punjab Scheduled Roads and Controlled Areas Restriction of Unregulated Development Rules, 1965 are duly complied with.

That you will not construct anything within 30 metres of a Scheduled Road, and further that you will demolish the construction carried out by you within this road reservation within six months or on the completion of the Factory building whichever is A persual of the above orders shows that the Director, Town and Country Planning Haryana had permitted the change of user of land for industrial purposes "after compounding the offence of unauthorised construction by imposing a penalty of".

Relying on this part of the order, the learned counsel submits that once the offence of unauthorised construction had been compounded, the respondents had no jurisdiction to order the demolition of the construction. A perusal of the written statement shows that the petitioner had applied for change of land user under section 8 of the Act in June, 1981. This request of the petitioner is stated to have been rejected by respondent No. 2 on August 27, 1981. It is also the admitted position that the construction of the building for setting up of the industry had been completed by the petitioner prior to December 31, 1981. It is thus apparent that actually the petitioner had changed the user of the land without permission and also raised construction within 30 metres of the scheduled road.

What is the consequence ? A persual of the statutory provisions gives the answer. At this stage, a reference to the provisions contained in Sections 3, 7, 12 and 14 of the Act is necessary. The relevant clauses are extracted hereunder :

Section 3. Prohibition to erect or reerect buildings along scheduled roads No person shall erect or reerect any building or make or extend any excavation or lay out any means of access to a road within one hundred metres on either side of the road reservation of a byepass or within thirty metres on either side of the road reservation of any scheduled road not being a byepass.

Section 7. Prohibition on use of land in controlled areas

(1) No land within the controlled area shall, except with the permission of the Director, be used for purposes other than those for which it used on the date of publication of the notification under subsection (1) of section 4, and no land within such controlled area shall be used for the purposes of a charcoal, Kiln, potterykiln, limekiln, brickKiln or brick field or for quarrying stone, bajri, surkhi, kankar or for similar extractive or ancillary operations except under and in accordance with the conditions of a licence from the Director on payment of such fees and under such condition as may be prescribed.

(2) The renewal of such licences may be made annually on payment of such fees as may be prescribed. "

Section 12. Offences and penalties

(1) Any person who

(a) erects or reerects 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 subsection (1) or section 7 or section 10,

shall be punished with imprisonment for a term which may extend to one year and six months and with fine which may extend to five thousand rupees and, in the case of a continuing contravention, with a further fine which may extend to five hundred 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 subsection (1), the Director, may, by notice, call upon any person who has committed a breach of the provisions referred to in the said subsection to stop any further construction and to appear before him to show cause why he should not be ordered to restore to its original state or to bring it in conformity with the provisions of this Act or the rules made thereunder, as the case may be, any building or land in respect of which a contravention such as is described in the subsection (1), has been committed and if such person fails to show cause to the satisfaction of the Director within a period of fifteen days of the service of such notice, the Director may serve thirty days notice requiring him to restore such building or land to its original state or to bring it in conformity with the provisions of this Act or the rules made thereunder, as the case may be.

(3) If the person on whom notice under subsection (2) for restoring the building or land to its original state or to bring it in conformity with the provisions of this Act or the rules made thereunder has been served fails to do so within the said notice period the Director may at any time thereafter serve twentyfour hours'' further notice on that person and take such measures as may appear necessary to restore the said building or lands to its original state or to bring it in conformity with the provisions of this Act or the rules made thereunder, as the case may be, and the expenses of such measures shall, if not paid, on demand being made to him, be recoverable from such person as an arrears of land revenue;

Provided that if the Director is satisfied that any person instead of stopping the construction which he is called upon to stop under subsection (2) continues with the construction, he may, notwithstanding the fact that the period of thirty days'' notice mentioned in the said subsection (2) has not expired, serve on such person twentyfour hours'' notice requiring him to restore such building or land to its original state or to bring it in conformity with the provisions of the Act or the rules made thereunder, as the case may be, and if such person fails to comply with it, the Director may himself take such measures as may appear necessary to restore the said building or land to its original state or to bring it in conformity with the provisions of this Act or the rules made thereunder, as the case may be and the cost of such measures shall, if not paid on demand being made to him, be recoverable from such person as an arrear land revenue.

Section 14. Composition of offences

(1) The Director or any person authorised by the Director by general or special order in this behalf may either before or after the institution of the proceedings composed any offence made punishable by or under this Act.

(2) Where an offence has been compounded the offender, if in custody shall be discharged and no further proceedings shall be taken against him in respect of the offence compounded."

A perusal of the relevant part of section 3 reproduced above shows that no person can erect any building within 30 metres on either side of the road reservation of any scheduled road. Section 7 as extracted above prohibits the use of any land for any purpose other than for which it was used on the date of the publication of the notification under section 5 except with the permission of the Director. In the present case, the notification under section 4 had been issued on July 6, 1976. Admittedly, after that date the petitioner had changed the use without the permission of the Director as postulated under section 7. In view of the admitted facts of the case, the petitioner had violated the provisions of section 3 and 7. On account of these violations, the petitioner had apparently committed an offence which was punishable under section 12 or could be computed under section 14. The order at Annexure P2, when'' read as a whole shows that the petitioner was permitted to change the land use and the offence of unauthorised construction was compounded by imposition of a penalty of Rs. 42, 343.84. This permission was conditional. It was subject to the condition that the petitioner shall demolish the construction carried out by him within 30 metres of the road A period of 6 months or till the completion of the building was allowed to the petitioner for this purpose. In my view, the petitioner had voluntarily sought composition of the offence and the order regarding demolition of the structure which fell within 30 metres was part of the deal arrived at by it with the department. To hold otherwise would amount to allowing an offence of change of use to continue. Such does not appear to be the intention. It is not that the construction was allowed to be kept infact on payment of the requisite fee. On the contrary, the order was that the construction had to be demolished and a penalty of Rs. 42,34384 had been imposed for the twin offences of change of user and the unauthorised construction. This view of the Director was reiterated while passing the orders at Annexures P8 and P9, by which the representations of the petitioner were rejected. I do not find that the Director acted beyond his jurisdiction or that be violated any provision of law while passing these orders. Consequently, this part of the petitioner''s claim cannot be sustained. There is another aspect of the matter. In the representations submitted by the petitioner like Annexure P4 and P5, the grievance made is with regard to the quantum of the amount of penalty and not the portion of the order by which the unauthorised construction which fell within 30 metres of the scheduled road had been ordered to be demolished. The petitioner only sought the reduction in the amount of penalty. In this view of the matter, the first contention raised by the learned counsel is rejected.

It has then been contended that the respondents have charged penalty @ 10 paise per square metre in the districts of Gurgaon, Hisar and Sirsa while a penalty of Rs. 2/ per square metre has been imposed in the case of the petitioner. According to the learned counsel this amounted to discrimination and was violative of Article 14 of the Constitution of India. In the representation at Annexure P7, it has been averred that the Govt. took the decision that the department should impose a penalty of 10 paise per square metre in such cases. On the basis of these averments, the learned counsel submits that the order was wholly arbitrary and untenable. In the written statement filed on behalf of the respondents, it has been pointed out that the unauthorised construction etc. made by the petitioner was compounded by the orders dated March 1, 1982 while the policy was revised by the Govt. vide its order of May 4,1982. I regret my inability to accept the contention of the learned counsel. Firstly, no details of the cases where a penalty @ 10 paise per square metre has been imposed, have been furnished in the writ petition. Secondly, even the policy decision referred to in the representation has not been produced with the writ petition. Without the perusal of the decision of the Govt. it is not possible for me to decide as to whether or not it was applicable to the case of the petitioner. If the petitioner had produced a copy of this letter, it may have been possible to examine the validity of this argument. The onus of proving the case was on the petitioner. Copy of the order having not been produced, I am unable to hold that the respondents violated Article 14. Even otherwise, the order of May 4, 1982 could not be applicable to a case decided on March 1, 1982. In view of the above, I find no merit in the petition and is consequently dismissed. Keeping in view that, fact that none has appeared on behalf Of the respondents, I pass no order as to costs.