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CASE NO.: Appeal (civil)  5647 of 2005

PETITIONER: M/s Royal Parasdise Hotel (P) Ltd

RESPONDENT: State of Haryana & Ors.

DATE OF JUDGMENT: 25/08/2006

BENCH: G.P. MATHUR, P.K. BALASUBRAMANYAN & DALVEER BHANDARI

JUDGMENT: J U D G M E N T  I.A. NO. 3 OF 2005  IN  CIVIL APPEAL NO.5647 OF 2005 AND CIVIL APPEAL NO.5647 OF 2005 (with I.A. No. 2 of 2005)

P.K. BALASUBRAMANYAN, J.

        1.              Special Leave Petition (Civil) No. 15503 of 2004  was filed by the petitioner therein challenging the order  of the High Court of Punjab & Haryana dated 8.9.2003,  dismissing the Writ Petition filed by it on the ground  that the order impugned therein was legal, proper and  just and the claim for regularization made by the  petitioner could not be granted over-riding the stipulated  land use of the area in question.   When the Petition for  Special Leave to Appeal came up, though at the initial  stage, it was stated on behalf of the petitioner that the  issue arising for the decision was not identical with the  issue arising for decision in C.A. No. 2671 of 2004, on  the subsequent day when it came up for admission, the  same was got tagged with C.A. No. 2671 of 2004 and  connected matters after persuading this Court to issue  notice on it.  It is apparent from the order dated  29.7.2004 that at that stage, this Court was told that  the question that arose for decision was the same as the  one arising in C.A. No. 2671 of 2004.  On 2.12.2004,  this Court finally disposed of Civil Appeal No. 2671 of  2004 and the connected matters by upholding the  decision of the High Court and granting time to the  appellants therein to remove the constructions put up  by them found to be offensive in terms of the relevant  legislation.  Thereafter, the present Petition for Special  Leave to Appeal came up on 25.7.2005 and it was  adjourned at the request of learned counsel for the  petitioner.  The Petition for Special Leave to appeal again  came up on 26.7.2005 and it was directed that the  matters be placed for hearing on 27.7.2005 specifically  directing that Special Leave Petition (Civil) No. 15503 of  2004 will also be listed for hearing that day.  Ultimately,  on 7.9.2005, when this Court took up Special Leave  Petition (Civil) No. 15503 of 2004 along with the other  matters posted with it, none appeared on behalf of the  petitioner, but this Court granted leave and disposed of  the appeal holding that the question raised was squarely  covered by the decision of this Court in C.A. No. 2671 of

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2004 and the connected cases decided on 2.12.2004.  In  that Petition for Special Leave to Appeal, the petitioner  had also filed I.A. No. 2 of 2005 seeking to plead certain  facts which were neither put forward in the High Court  nor urged at the hearing of the Writ Petition in the High  Court.  For that matter, these facts were not agitated  even before the authorities who had rejected the claim of  the petitioner for compounding under the relevant  statute.   

2.              In the Petition for Special Leave to Appeal  which transformed into a Civil appeal, the appellant filed  I.A. No. 3 of 2005 on 23.9.2005 praying for what it  called the restoration of the Civil Appeal by recalling the  order dated 7.9.2005 disposing of the appeal.  The  reason put forward was that the learned counsel for the  appellant could not be present when the case was called  on for hearing due to the fact that she had to rush to the  hospital with a relative of hers for urgent attention and  by the time she returned, the matter had been disposed  of.  Considering that the learned counsel had not been  heard as recorded in the order itself, and for no other  reason, we entertained the application I.A. No. 3 of 2005  and issued notice therein by our Order dated 5.1.2006.   The application for restoration of the appeal, the appeal  and I.A. No. 2 of 2005, have all come up again for  hearing and final disposal.   

3.              In the view that the learned counsel was not  heard when we passed the order dated 7.9.2005, we  allow I.A. No. 3 of 2003 so as to give the appellant an  opportunity of being heard.  

4.              The appeal was reheard with counsel on both  sides ably assisting the court at the re-hearing.   

5.              Mr. K.T.S. Tulsi, learned Senior Counsel  appearing for the appellant submitted that the case of  the appellant was that refusal to accept the  compounding fee and condone the violations made by  the predecessor of the appellant by putting up the  disputed constructions was challenged in the High  Court and it was that Writ Petition that was dismissed  by the High Court.  Though, he agreed that the decision  in C.A. No. 2671 of 2004 and the connected matters  dealing with similar constructions found to be  unauthorized had some relevance, he contended that  the present appeal was not wholly covered by the  decision already rendered in those cases and that the  appellant’s claim had to be considered separately.   

6.              It was submitted that a construction was put  up within 50 mtrs. of the high-way and that at the  relevant time that was not impermissible and this aspect  had not been considered while considering the claim of  the appellant for compounding.  It was further  contended that the area in question has now come  within the municipal limits and the prayer of the  appellant had to be considered under the law governing  Municipalities.  Learned counsel for the respondent  submitted that such a construction was impermissible,  that the building was constructed in the teeth of notices  issued under the Punjab Scheduled Road and  Controlled Areas (Restriction of Unregulated  Development) Act, 1963 (for short "the Act") and it was

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clearly illegal.  It was clear defiance of law.  The  appellant was only an assignee of such illegal  construction and therefore this is a case where there is  no reason for this Court to interfere with the refusal of  the authorities to accede to the prayer for compounding  or regularizing the constructions and violations and the  decision of the High Court refusing to interfere with that  decision.  He also submitted that the new point sought  to be raised is a point which was never raised before the  authorities or before the High Court or even in the  Petition for Special Leave to Appeal and they are sought  to be introduced only by way of I.A. No. 2 of 2005 and  there was no justification in permitting the appellant to  raise these factual aspects at this stage especially  considering his prior conduct.  He pointed out that the  notice was got issued on the Petition for Special Leave to  Appeal by submitting that it was connected with C.A.  No. 2671 of 2004 and now that C.A. No. 2671 of 2004  has been dismissed by this Court by a considered  Judgment, there was nothing to be done in this appeal  and it deserves to be dismissed.  

7.              It is clear from the statement of the synopsis  and list of dates furnished by the appellant itself, that  on 4.2.1998, Mr. Chawla, who put up the construction  before it was sold to the appellant received a notice  under Section 12 of the Act informing him of  contravention of Section 3 or Section 6 and of violation  of Section 7(1) and Section 10 of the Act and directing  him to stop further construction. When it was found  that the appellant was defying the direction to stop, an  order was passed on 26.2.1998 under sub-Section (2) of  Section 12 of the Act directing him to remove the  unauthorized construction and to bring the site in  conformity with the relevant provisions of the Act on  finding that there was clear violation of Section 7 and  Section 10 of the Act.  On 16.3.1999, another notice was  issued to Mr. Chawla mentioning therein that there is a  contravention of Section 7(1) or Section 10 of the Act  and directing removal of the unauthorized construction.   The copies of the original notices are produced by the  respondents along with the counter affidavit filed on  behalf of the respondent Nos.1 to 3.  Though the copies  of such notices have been produced by the appellant  also, we find that there are some omissions in the copies  produced on behalf of the appellant.  Whatever it be, the  fact remains that the construction was made in the  teeth of the notices and the directions to stop the  unauthorized construction.  Thus, the predecessor of  the appellant put up the offending construction in a  controlled area in defiance of the provisions of law  preventing such a construction and in spite of notices  and orders to stop the construction activity.  The  constructions put up are thus illegal and unauthorized  and put up in defiance of law.  The appellant is only an  assignee from the person who put up such a  construction and his present attempt is to defeat the  statute and the statutory scheme of protecting the sides  of highways in the interest of general public and moving  traffic on such highways.  Therefore, this is a fit case for  refusal of interference by this Court against the decision  declining the regularization sought for by the appellant.   Such violations cannot be compounded and the prayer  of the appellant was rightly rejected by the authorities  and the High Court was correct in dismissing the Writ

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Petition filed by the appellant.  It is time that the  message goes aboard that those who defy the law would  not be permitted to reap the benefit of their defiance of  law and it is the duty of High Courts to ensure that such  defiers of law are not rewarded.  The High Court was  therefore fully justified in refusing to interfere in the  matter.   The High Court was rightly conscious of its  duty to ensure that violators of law do not get away with  it.

8.              We also find no merit in the argument that  regularization of the acts of violation of the provisions of  the Act ought to have been permitted.  No authority  administering municipal laws and other laws like the  Act involved here, can encourage such violations.  Even  otherwise, compounding is not to be done when the  violations are deliberate, designed, reckless or  motivated.   Marginal or insignificant accidental  violations unconsciously made after trying to comply  with all the requirements of the law can alone qualify for  regularization which is not the rule, but a rare  exception.  The authorities and the High Court were  hence right in refusing the request of the appellant.   

9.              As regards the alleged inclusion of this area in  Karnal Municipality, we find that such a contention was  never put forward. Even if subsequently a Municipality  Act has been extended, the illegality and violation of the  Act cannot be condoned by the Authorities under that  Act or by any Court administering law and justice and  no authority, whether the highway authority or the  municipal authority, is entitled to reward a person  indulging in such illegal activity.  Therefore, nothing  turns on the point sought to be raised for the first time  in this Court by the appellant by way of I.A. No. 2 of  2005.  The plea based on that is hence rejected.   

10.             On the whole, we find that the appellant has  not made out any ground for interference with the  decision of the High Court.  Hence, we dismiss this  appeal with costs.  

11.             We had ordered the status quo to be  maintained since we had entertained I.A. No.3 of 2005,  the application for rehearing.  Now that we have  dismissed the appeal after a detailed hearing, we vacate  the order of status quo and direct the appellant to  remove the offending constructions and the other  violations of the Act within a period of six weeks from  today.  In case, the appellant does not remove the  offending constructions and the other violations on its  own, within that time, the respondents will remove the  constructions and all violations of the Act within a  period of ten weeks from today and report that fact of  removal to this Court through an affidavit of respondent  No.3 to be filed in this Court within twelve weeks from  today.   

12.             Thus I.A. No. 3 of 2005 is allowed and the  appeal reheard.  Civil Appeal No. 5647 of 2005 is  dismissed with costs, but with the directions in  paragraph 11 and I.A. No. 2 of 2005 is disposed of in the  light of what is stated above.