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2010 DIGILAW 295 (PNJ)

Satish Kumar Sethi v. Union Of India

2010-01-13

K.KANNAN

body2010
Judgment K.Kannan, J. 1. The writ petition challenges the action of the respondents namely the national Highways Authority and the Divisional Town Planner, Ambala Division, who in exercise of the power granted under Sec.12 of the Punjab Scheduled roads and Controlled Area (Regulation and Development) Act of 1963, have found that there had been an encroachment and the petitioner had created an access through a road in contravention of Sec.3 of the said Act. Sec.12 which stipulates the offences and penalties under the Act sets out a procedure under which an action for imposition of a fine or for restoration of a property to the original state could be made. There is no denying of the fact in this case, that the petitioner had been served with notices under Sec.12 (1) (b) complaining of contravention of sections 3 and 7 of the Act. The ultimate act of the respondents which has given rise to this writ petition is an act of demolition of the construction which the petitioner had, and which in his view, was in his own property but in the perception of the respondents, it was a part of a national highway. It is again an admitted fact that the petitioner had, after the service of notice resorted to an action by means of a writ petition before this Court in Civil writ Petition No.14655 of 1996 when this Court had directed that the matter will be adjudged before a Tribunal constituted under the Act, subsequent to the notices, and the Tribunal had, in this case, purported to have passed an order stating that after the disposal of the case by the High Court, there was no presence of the party and therefore it had given a liberty to the authorities to take further action pursuant to the notices. 2. The challenge in the writ petition is also on the basis that pursuant to a direction from this Court, the Tribunal had not issued any notice. The learned counsel appearing for the petitioner would point out to the fact that the tribunal has merely marked the name of Shri Jain Ram Sethi son of Attar Singh as the petitioner and it has stated in the order that it had attempted to effect service on the person but no person had come present. The learned counsel appearing for the petitioner would point out to the fact that the tribunal has merely marked the name of Shri Jain Ram Sethi son of Attar Singh as the petitioner and it has stated in the order that it had attempted to effect service on the person but no person had come present. Evidently no person could have come present because it is incomprehensible about how when the previous notices had been issued to the petitioner and the earlier writ petition had also been filed only by the petitioner, the name of the petitioner was not mentioned in the order of the Tribunal but only his fathers name was mentioned. The person named was already dead. There could not have been a valid service and the decision of the tribunal against a dead person must only be taken as a nullity. 3. If the Tribunals order granting the liberty to the respondents was the justification for the act of demolition, then such a void order cannot sustain the action. The contention by the learned counsel appearing for the respondents 1 to 3 is that the petitioner had no valid defence to the notice and therefore, the demolition was effected. Sec.12 (2) of the above Act contemplates a notice to be served to a person against whom a contravention is complained of and the restoration of the property to the original state is again contemplated only after the Director, Town and Country Planning, passed an order to restore the property to its original state. There is a specific reference in the writ petition to the fact that the act of demolition had been done without passing any order. There is no contention anywhere by either of the respondents that such a specific order had been passed. The attempt of the learned counsel appearing for the respondents was to say that the reference to non-passing of the order had been made only in the grounds of challenge in the writ petition and not in the body of the petition. This objection has only to be stated to be rejected as unworthy of acceptance. Every ground is indeed an essence of a challenge and if it states that no order was passed, that ought to sufficiently put the respondents to notice of the fact of the untenability of the action of the respondents. This objection has only to be stated to be rejected as unworthy of acceptance. Every ground is indeed an essence of a challenge and if it states that no order was passed, that ought to sufficiently put the respondents to notice of the fact of the untenability of the action of the respondents. While zealous protection of the public property is to be most desired and any encroachment of public roads has to be dealt with by using of the police power of the State, since the entire exercise has serious consequences, it has to ensure punctilious observance of the statutory provisions. There has been in this case a breach of such a fundamental duty that a decision to demolish has been done with no express order but on a subjective satisfaction that there had been an encroachment. 4. The learned counsel appearing for the respondents refers to a decision of the Honble Supreme Court in M/s Royal Parasdise Hotel (P) Limited Versus State of Haryana and others-2006 (4) RCR (Civil) 289 that dealt with the case under the punjab Scheduled Road and Controlled Areas Act. The Honble Supreme Court had held that the construction made inspite of notices and directions to stop unauthorized construction could not be compounded. The said decision has no applicability at all because the decision addressed the question whether the authorities could remove an unauthorized construction. Such a right invariably exists and it is hardly a matter of dispute before me. The issue before me is whether the demolition was done after ascertainment of such contravention in the manner contemplated by the Act. The decision of the Honble Supreme Court arose in a case where a party was seeking for regularization of his construction and where the Court said that compounding of such violation could not be made. Learned counsel also refers to a decision in Rajinder Singh Versus state of Haryana and others-JT 2004 (10) SC 275, which was also a decision under the same Act where the Court found that any construction made in violation of the Act would be per se actionable and a direction to remove the offending construction would be perfectly justified. If an illegal construction is made or if there is a contravention, such a right is invariably preserved. If an illegal construction is made or if there is a contravention, such a right is invariably preserved. Here the notice issued 3 years earlier is taken to be a justification for demolition without entering a decision that the reply was liable to be rejected by passing an express order. The rules of natural justice is brazenly breached by the respondents. 5. From the time when the writ petition was instituted till date, the petitioner does not complain of any further demolition. The impugned notices themselves cannot be quashed but the act of demolition is found to be illegal and not inconfirmity with the Act. The petitioner shall be compensated for the acts of the respondents by cost which I impose at Rs.25,000/- and the proceedings may be taken in the manner contemplated under Sec.12 by giving an opportunity to the petitioner to explain the alleged encroachment or any other contravention of the provisions of the Act and a decision shall be taken by an express order to be passed in the manner contemplated under the Act. The 3rd respondent owns up the act of demolition and the cost shall be recovered by the 3rd respondent. The writ petition is, accordingly, disposed of.