Dismissed

New Vidya Niketan Educational Society v. State of Haryana and Ors.

Punjab & Haryana HC5 Apr 2011CWP/7711/2009

Case brief

AI extract

What is this about?

The High Court of Punjab and Haryana dismissed several writ petitions challenging land acquisition. The Court held that the petitioner, a lessee Society involved in unauthorized construction and misleading the judicial process, lacked clean hands and was disentitled to equitable relief despite release orders granted to others.

What did the court decide?

Petition dismissed; no relief granted as petitioner is disentitled due to lack of respect for law and misstatement of facts.

New Vidya Niketan Educational Society Vs State of… — Land Acquisition | Punjab & Haryana HC (2011)

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CIVIL WRIT PETITION NO. 7711 OF 2009

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.

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DATE OF DECISION: April 05 , 2011.

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Parties Name

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New Vidya Niketan Educational Society

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...PETITIONER

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VERSUS

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The State of Haryana and others

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...RESPONDENTS

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CORAM: Hon'ble Mr. Justice Jasbir Singh Hon'ble Mr. Justice Rakesh Kumar Garg

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PRESENT: Mr. Ashwani Kumar Chopra, Sr. Adv., with

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Mr. G.S.Sullar, Advocate, for the petitioners

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Mr. Arun Jain, Sr. Advocate, with Mr. Shiv Kumar, Advocate;

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Mr. Adarsh Jain, Advocate;

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Mr. Ram Bilas Gupta, Advocate;

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Mr. Hemant Sarin, Advocate;

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Mr. Kamal Sehgal, Addl. A.G., Haryana;

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Mr. Gitish Bhardwaj, Advocate, for Mr. Arun Walia, Advocate;

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Mr. Manish Bansal, Advocate;

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Jasbir Singh, J. (oral)

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CIVIL WRIT PETITION NO. 7711 OF 2009

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JUDGMENT

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This judgment will dispose of Civil Writ Petitions No. 7711, 7746, 8531, 8731, 9085 and 10982, all of the year 2009 and 2227 of 2011. To dictate order, facts are being taken from Civil Writ Petition No. 7711 of 2009 (New Vidya Niketan Educational Society v. State of Haryana and others).

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As per case of the petitioner, it is a Society, registered under the Societies Registration Act, 1860, on August 30, 2000. Besides the Chairman and a Secretary, it has nine other members. The Society is a lessee for a period of 30 years in land measuring 14 Kanals 8 Marlas, which was taken on lease from Janak Raj Khatana and his co-sharers. The lease deed was registered on October 6, 2004, for a period of 20 years. Thereafter, on September 27, 2007, it was renewed for a period of 30 years.

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The petitioner raised construction of a School building in the year 1999-2000. Initially, it was a primary School, subsequent thereto, recognition was granted to it to impart education upto 8^th standard,and then upto 10^th standard. Now for the year 2009, the petitioner has been granted permission to run classes upto +2 standard. To say so, reference has been made to the documents Annexures P-9 to P-11 on record. To show the extent of construction, site plan Annexure P-3 and Photographs Annexures P-4 to P-7 have been put on record. On October 29, 2007, the petitioner moved an application to the Director, Town and Country Planning, Haryana, for grant of a 'change of land use' certificate for the land, in which the School building is situated.

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This writ petition has been filed to impugn a notification issued

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under Section 4 of the Land Acquisition Act, 1894 (in short the Act) on February 7, 2008, proposing to acquire a huge chunk of land including land of the petitioner measuring 14 Kanals and 8 Marlas for a public purpose, namely, for the development and utilization of land as a residential and commercial purpose for Sectors 76, 77 and 78, Faridabad. The petitioner to oppose the proposed acquisition filed objections under Section 5-A of the Act giving above said detail. Thereafter as per record, the petitioner was given proper hearing and the Land Acquisition Collector vide a report dated September 15, 2008, recommended that only 7 Kanals of vacant land may be acquired. Rest of the land under the School building and the play grounds in front of it may be left out of acquisition. It is further case of the petitioner that thereafter a Joint Site Inspection Committee vide its report dated November 14, 2008, recommended release of the entire holding of the petitioner. Despite recommendations made by the Land Acquisition Collector and the Joint Site Selection Committee, the respondents issued a declaration under Section 6 of the Act on February 6, 2009, releasing only 900 Square yards of land in favour of the petitioner, by wrongly taking constructed area only at 270 Square yards. By stating that the land of a Primary School, Fairzupur Majra and the land owned by many of the developers was kept out of acquisition, a prayer was made that qua the petitioner's land, proposed acquisition be quashed. It was further stated that as per norms, fixed by the Education Department, State of Haryana, to run a School upto 10+2 Standard, minimum land requirement is 2 Acres and if land of the petitioner is allowed to be acquired, the petitioner school will loose its recognition and the career of more than 1000 students will be at

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stake. By stating that releasing land for a School will be in public interest, a prayer has been made to allow this writ petition.

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Facts re: other writ petitions:

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CWP No. 7746 of 2009:

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Total land holding of the petitioners is 5 Kanals 6 Marlas, out of which 934 Square yards has been left out of acquisition. The petitioner has stated that adjoining land owned by Harpreet Foods Ltd. has been kept out of acquisition. An attempt has been made to claim relief on the ground of discrimination. At the time of arguments, it was stated that the land measuring 2400 Square yards be released from acquisition, and rest of it may be acquired.

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CWP No. 8731 of 2009:

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The petitioner is the owner of 14 Kanals 11 Marlas of land. 2 Kanals 14 Marlas of land has been kept out of acquisition. It is case of the petitioner that qua the adjoining land, licence has been granted in favour of a developer. Land in dispute is surrounded on its three sides by the licensed area and cannot be utilised for the proposed purpose. Prayer is to release the entire land of the petitioners.

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CWP No. 8531 of 2009:

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Petitioner is the owner of 119 Kanals 14 Marlas of land. However, in this writ petition prayer is to release only 7 Kanals 5 Marlas, in which it is stated that a residential house of the petitioner is situated. Relief is claimed on the basis of discrimination in releasing land in favour of the other land owners and declining that very relief to the petitioner.

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CWP No. 2227 of 2011:

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Petitioner has raised a dispute with regard to 9 Kanals 10 Marlas of land. Prayer is to release the same on the ground of discrimination by stating that the land owned by others, under construction, was released from acquisition.

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CWP No. 9085 of 2009:

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Petitioners did not file objections under Section 5-A of the Act. The prayer is to release the land falling under houses, relief is claimed on the basis of discrimination in releasing constructed buildings of the others and not granting same relief to the petitioners. CWP No. 10982 of 2009:

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Land under acquisition is lying vacant.

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After notice, reply has been filed, wherein it is stated that the land, which is the subject matter of the proposed acquisition falls within the controlled area, which was declared as such on February 1, 1964, under the provisions of the Punjab Scheduled Roads and Controlled Areas Restriction of Unregulated Development Act, 1963 (in short the 1963 Act). As per restrictions imposed by the provisions of Sections 6 and 7 of the 1963 Act, no construction can be raised in the controlled area without getting prior permission from the competent authority. In this writ petition and in other writ petitions also, the constructions were raised without getting any permission and in an unauthorised manner. It is further stated that the land has been acquired as per the final development plan of the controlled area, which was published on December 11, 1991. It is further stated in the amended written-statement that construction in the land in dispute was only

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to the extent of 267 Sq. yards ( 30ft. X 80 ft.). After adding equal area of the vacant land, the land measuring 534 Sq. yards ( 18 Marlas) was kept out of acquisition. It is further stated that most of the land in dispute is lying vacant except the School building, which affects the master plan, green belt and service road. Prayer has been made to dismiss this writ petition.

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Shri Ashwani Chopra, Senior Advocate, counsel for the petitioner has vehemently contended that the Land Acquisition Collector had recommended release of 900 Square yards of land, which was done, and now the authorities cannot take a somersault and say that lesser area of the land was released. He further argued that the Joint Site Inspection Committee had recommended release of entire land, owned by the petitioner. To say so, reference was made to the recommendations made by the Land Acquisition Collector and the report made by the Committee in its meeting dated November 14, 2008. Shri Chopra further argued that it is a case of discrimination done to the petitioner. The land owned by a factory and in possession of a Government Primary School and other Schools was kept out of acquisition, whereas land owned by the petitioner has wrongly been ordered to be acquired. The petitioner is running a School upto 10 +2 standard after getting recognition from the competent authority. To run that school, minimum requirement is 2 Acres of land. If the land is not allowed to be released, the petitioner Society will loose its recognition to run the School, and it will cause harm to more than 1000 students. Shri Chopra further stated that the building of the School was constructed as per the approved building plan.

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Prayer made above has vehemently been opposed by the State

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counsel, who, by making reference to the admitted facts, argued that the construction raised by the petitioner in the years 1999/ 2000 was unlawful. By showing compassion, the State Government has ordered the release of 534 Square yards of land, whereas the petitioner was not even entitled to get that portion of land released. It is stated that before raising the construction, no permission was sought as per the provisions of the 1963 Act and further the building plan was not got approved as per the provisions of Municipal Law. The land admittedly falls within the limits of Municipal Corporation, Faridabad. He further argued with vehemence that a Law Breaker is not entitled to get any relief by invoking the provisions of Articles 226 and 227 of the Constitution of India. Though not entitled to , yet sufficient land has been released in favour of the petitioner. Beyond that it is not possible to grant any further relief. Shri Sehgal also argued that the land owners have accepted the acquisition proceedings, the writ petition has been filed only by a lessee, which is not maintainable. Furthermore, in the writ petition and also at the time of arguments, an attempt has been made to mis-state the facts, which disentitles the petitioner to get any relief. His prayer is to dismiss these writ petitions.

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After hearing counsel for the parties, we feel that in view of the facts of this case, the petitioner is not entitled to get any relief from this Court. It is an admitted fact that the petitioner is a Society. It is only a lessee of the land measuring 14 Kanals 8 Marlas for a period of 30 years. At the time of arguments, an attempt was made to show that the petitioner was registered as a Society in the year 2000 and it is a charitable institution whereas facts on record indicate to the contrary. As per the document

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Annexure P-2 dated January 25, 2008, Shri Janak Raj Khatana is shown as its Chairman, Charan Singh as its Secretary, Kiran Bala as its Treasurer and Satbir Singh has been shown as students representative. Averments made in this writ petition and also in the objections filed under Section 5-A of the Act indicate that the above named individuals constitute one family and they are also owners of the land in dispute. They have preferred not to lay challenge to the acquisition proceedings. Society appears to be a private family concern. On this score alone, relief can be declined to the petitioner.

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Furthermore, as per admitted facts, the land in dispute was declared a Controlled Area as per provisions of the 1963 Act, in the year 1964. At that time, the land was a part and parcel of Faridabad Development Complex. Admittedly, in this case and all other cases, construction was raised without getting any 'change of land use certificate' from the competent authority under the provisions of the 1963 Act and also without getting the building plans approved as per the requirements of Municipal laws. The final Master plan for development of this area was notified way back on December 11, 1991. By noting above said objection raised by the State, on February 16, 2011, following order was passed by this Court:

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“At the time of arguments, it was admitted as a matter of fact that construction of the school building, in question, was raised in the year 1999-2000. It is further admitted that the area where school is situated falls within the controlled area as per the provisions of the Punjab Scheduled Roads and Controlled Areas Restriction of Unregulated Development Act, 1963 (in

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short the Act) and the construction was made without getting any permission from the competent Authority.

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When confronted with this situation, the argument is raised that in the year 1999-2000 there was no condition to construct building after getting certificate of 'change of land use' as per requirement of the Education Department. This requirement was made applicable only in the year 2007.

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Counsel for the petitioner(s) is directed to file an affidavit stating and affirming the above said facts. Further at the time of arguments, some photographs were shown to us which are in variance to the photographs put on record when writ petition was filed. In the photographs produced in Court , construction of first floor is in progress.

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Petitioner(s) are also directed to state in the affidavit as to whether before raising the first floor, any building plan was got sanctioned from the competent Authority or not? Adjourned to 9.3.2011.

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A photocopy of this order be placed on the files of other connected cases.”

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In response thereto, an affidavit dated March 9, 2011, was filed by Shri Janak Raj Khatana and photographs of the building were also put on record. Taking note of the contents of that affidavit and the photographs shown at the time of arguments, following order was passed by this Court on March 9, 2011:

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“In response to our order dated 16.2.2011, Mr. Chopra has put on record an affidavit of Janak Raj Khatana. A reading of the affidavit clearly indicates that originally construction was raised in the year 1999-2000, contrary to the provisions of the Punjab Scheduled Roads and Controlled Areas (Restriction of Unregulated Development) Act, 1963. It is apparent from the records that during pendency of this writ petition, further construction was raised in the released area that too without getting any permission from the Municipal Corporation. On request, adjourned to 5.4.2011.

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A copy of order be placed on the files of connected cases.”

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After reading contents of the affidavit, it is coming out that when a building was raised in the year 1999-2000, no permission was obtained from the competent authority under the provisions of the 1963 Act. It is only stated in the affidavit that there was no such requirement as per the Education Code of State of Haryana. Condition to get a certificate under the 1963 Act was incorporated in the Education Code only in the year 2007. It is further stated in this affidavit that further construction, noted by the Court is being carried out only in the portion, which has been released from acquisition and the construction has been raised as per the approved plan (Annexure P-8). It is further stated that under similar circumstances, land in favour of many other Schools was released irrespective of a fact that the buildings were raised by those Institutions also without getting any permission under the 1963 Act.

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So far as release of the unauthorised construction of this School and other Schools is concerned, we are not giving any finding in that regard. That is a concession given by the State, which unless challenged and is not apparently against the public policy, the Court is not supposed to interfere in the same. This matter is kept open.

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Now it is to be seen that whether a litigant, who has no respect for law and is capable of misleading the Court, is entitled to get any relief from this Court or not?

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In this case, admittedly, land in dispute falls in the Controlled Area declared in the year 1964 under the provisions of the 1963 Act. No construction in the controlled area can be raised without getting a prior permission from the competent authority. In this case, a full-fledged building was constructed without caring for the existence of the provisions of law. Not only the initial construction, the petitioner continued to construct at different dates with a view to get recognition for running the higher standard classes. Furthermore, it is an admitted fact that the the land in dispute falls within the limits of Municipal Corporation, Faridabad (previously Faridabad Development Complex). Before raising the construction, building plan was not got sanctioned from the competent authority. Photographs Annexures P-4 to P-6 indicate the extent of construction as noted by the Land Acquisition Collector i.e. 30 ft x 80 ft. At the time of arguments, some photographs were shown to the Court, depicting that the huge construction has been raised on the first floor of the already existing building. When confronted , in affidavit dated March 9, 2011, Janak Raj Khatana, Chairman of the Society, has gone to the extent of

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stating that the construction was carried out in the portion of land which has been released from acquisition and as per approved plan (P-8). The perusal of the document Annexure P-8 indicates that the so-called building plan was never approved by the competent authority. It is only prepared by an Architect, to which no sanctity can be attached. The law was violated when the building was first constructed in the year 1999-2000, thereafter it continued and has been exaggerated by raising construction during pendency of this writ petition.

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A litigant, who has no respect for the law, this Court feels, is not entitled to get any equity by invoking the provisions of Article 226/227 of the Constitution of India. Under similar circumstances, in a case titled as Cambridge International Public School v. State of Haryana and another, CWP No. 2958 of 2011, decided on March 23, 2011, wherein the construction was raised without getting any prior permission and a prayer was made for release of the land from acquisition, a Division Bench of this Court observed as under:

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“Otherwise also, we feel that on account of violation of the provisions of the Punjab Scheduled Roads and Controlled Areas Restriction of Unregulated Development Act, 1963, no relief can be granted to the petitioner. As per the provisions of that Act, to construct building/ change of land use, permission is necessary from the competent authority. In the present case, it was not done. It has become a fashion to violate the provisions of law and then to make an attempt to get relief in one way or the other. Attitude of ' sab chalta hai' cannot be

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tolerated, this has to be stopped one day, to make the people to be respectful to the law and its provisions. A violator of law, who has no respect in the established system of rule of law, cannot be granted any relief when exercising jurisdiction under Articles 226/227 of the Constitution of India. Adherence to the duties as enshrined in Article 51-A of the Constitution of India is must. One can claim his rights under Chapter III of the Constitution of India only if respect is shown to the duties as contained in the above said provision.”

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A law breaker cannot be permitted to get any relief from the Court by performing an act contrary to the provisions of law. A Division Bench of Delhi High Court in Anil Kumar Khurana v. M.C.D., 1996(36) DRJ (DB), under similar circumstances where an owner of an unauthorised building wanted to get relief by citing example of other unauthorisely raised construction, observed as under:

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“The petitioners are attempting to legalise illegal acts by filing these writ petitions and the appeals, which is not non pariel in all the Courts in the country.

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I feel that the provisions in statues, Rules, Regulations and Bye laws do not meet the demands of today's situation. The process has to be strengthened. The law must be provided with more biting teeth and there must be genuine apprehension in the mind of every person engaged in the real estate business that any infraction or violation of laws would be visited with

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exemplary punishment, for they spoil the society and try to enthuse in the law abiding citizens that any violation would not be taken cognizance of by the authorities and that they have the means to get round the law. The law should also provide severe punishment for erring officers and responsibility must be fixed on them. The officers should not only be aware that they are the persons to implement the law but must also be conscious of the position that in a welfare state it is the obligation of the state to ensure the creation and sustaining conditions congenial to good health of the people which is a sine-qua-non for the progress of the country as a whole not only in the field of science and technology but also in all spheres of human endeavours to meet the challenge, particularly at this juncture, arising out of globolisation of everything under the sun.”

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By taking note of the deteriorating conditions of law and habit of the citizens to violate the same with impunity, it was further said as under:

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“11. The Supreme Court on more than one occasion has noticed that there has been steady decline in standard in public life and it is hoped that those who are in power have in the fore front of their minds the welfare and wellbeing of the country that people with sense of patriotism and sacrifice would emerge in public life.

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The Supreme Court has very forcefully observed about the powers of the court in A.I.R. 1981 S.C. 625. “The writ must

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right the wrong fortwith or must stand self condemned as make believe.”

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And, therefore, the writ cannot protect the wrong. It is the duty of the Courts to preserve public good and interdict misuse of powers and position. The Supreme Court has given the guidance by stating that scanning must be done through the objective lens of the Court representing the collective conscience of the community and not through the tingedlens of wrong doers whose economic interest may be prejudicially effected by the provisions of law. In other words, the Court examining the matter, from the perspective of the constitutional mandate armed with the criterion of the objectivity and over all interest of the community at large, must be satisfied.

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I would like to recall the observations of the House of Lord in 1961 Vol. 1 All England Reports 446 “I entertain no doubt that there remains in the Courts of law a residual power to enforce the supreme and fundamental purpose of the law, to conserve not only the safety and order but also the moral welfare of the state and it is their duty to guard it against attacks which may be more insidous because they are novel and unprepared for.”

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Similarly, Hon'ble Sabharwal, J., in that very judgment has observed as under:

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“In an equitable jurisdiction it is the duty of the court to preserve the public good. The writ court cannot protect the

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wrong. A person who seeks equity must do equity. No one can be allowed to take advantage of his own wrong. A person who has committed a wrong may not be heard by a writ court in support of the plea that the authority which is taking action against him has no power or jurisdiction and such power vests in another statutory authority. The law breakers can be refused equitable relief assuming they may have some case on merits. The writ court can deny hearing to such law breakers.”

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By noting mis-statement made by the petitioner in the above case, it was further observed that a litigant is supposed to come to the Court with clean hands to get relief.

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In the present case, an attempt was made to conceal the material facts. In the writ petition, it was very boldly stated that the building was constructed as per the approved plan. To the contrary, perusal of the documents indicate that despite the area being a part of Municipal Corporation, Faridabad, the building plan was not ever presented before the competent authority for approval, as was averred by the petitioner. This assertion was reiterated by Shri Janak Raj Khatana in his affidavit dated March 9, 2011. In cases, where there is an attempt to over-reach the Court by propagating false plea and withholding an important information, the Court may decline relief to a litigant. A Division Bench of the Delhi High Court in the case of Anil Kumar Khurana (supra) and by making reference to the finding given by this Court in the case of Tetar Mandal vs. Executive Officer, AIR 1978 Punjab and Haryana 326, has observed as under:

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“A person obtaining an ex parte order or a rule nisi by means of a petition for exercise of the extraordinary powers under Art. 226 of the Constitution must come with clean hands, must not suppress any relevant facts from the Court, must refrain from making misleading statements and from giving incorrect information to the Court. Courts, for their own protection, should insist that persons invoking these extraordinary powers should not attempt, in any manner, to misuse this valuable right by obtaining ex parte orders by suppression, misrepresentation or misstatement or facts. Applying this principle to the present case, we feel that, in this case, the petitioner Company has disentitled itself to ask for a writ of prohibition by material suppression, misrepresentations and misleading statements which have been found by us above.

¶100

Under similar circumstances, Hon'ble the Supreme Court in S.P. Chengalvaraya Naidu (dead) by L.Rs. v. Jagannath (dead) by L.Rs,. and others, AIR 1994 Supreme Court 853, observed as under:

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“The principle of finality of litigation cannot be pressed to the extent of such an absurdity that it becomes an engine of fraud in the hands of dishonest litigations

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The courts of law are meant for imparting justice between the parties. One who comes to the court, must come with clean hands. We are constrained to say that more often than not,

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process of the court is being abused. Property -grabbers, taxevaders, bank loan dodgers and other unscrupulous persons from all walks of life find the court process a convenient lever to retain the illegal gains indefinitely. We have no hesitation to say that a person whose case is based on falsehood, has no right to approach the court. He can be summarily thrown out at any stage of the litigation.”

¶105

We have noted with concern that in most of the cases, it has become a habit of the land owners to raise construction without getting requisite permission, in defiance to the provisions of law. The State in those cases unnecessarily has shown compassion by releasing those constructions. The situation is deteriorating day by day. Despite promulgation of many statutes to regulate the construction for development of urban areas, the legislation has failed to achieve the desired object. It was so noted by the Hon'ble Supreme Court in the case of Shanti Sports Club and another v. Union of India and others, (2009) 15 Supreme Court Cases 705. In that regard, it was observed as under:

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“73. Before concluding, we consider it necessary to enter a caveat. In all developed countries, great emphasis has been laid on the planned development of cities and urban areas. The object of planned development has been achieved by rigorous enforcement of master plans prepared after careful study of complex issues, scientific research and rationalisation of laws. The people of those countries have greatly contributed to the

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concept of planned development of cities by strictly adhering to the planning laws, the master plan, etc. They respect the laws enacted by the legislature for regulating planned development of the cities and seldom there is a complaint of violation of master plan, etc. in the construction of buildings, residential, institutional or commercial. In contrast, scenario in the developing countries like ours is substantially different. Though the competent legislatures have from time to time, enacted laws for ensuring planned development of the cities and urban areas, enforcement thereof has been extremely poor and the people have violated the master plans, zoning plans and building regulations and bye-laws with impunity.

¶109

In the last four decades, almost all cities, big or small, have seen unplanned growth. In the 21^st century, the menace of illegal and unauthorised constructions and encroachments has acquired monstrous proportions and everyone has been paying heavy price for the same. Economically affluent people and those having support of the political and executive apparatus of the State have constructed buildings, commercial complexes, multiplexes, malls etc. in blatant violation of the municipal and town planning laws, master plans, zonal development plans and even the sanctioned building plans. In most of the cases of illegal or unauthorized constructions, the officers of the municipal and other regulatory bodies turn blind eye either due to the influence of higher functionaries of the State or other

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extraneous reasons. Those who construct buildings in violation of the relevant statutory provisions, master plan etc. and those who directly or indirectly abet such violations are totally unmindful of the grave consequences of their actions and/or omissions on the present as well as future generations of the country which will be forced to live in unplanned cities and urban areas. The people belonging to this class do not realize that the constructions made in violation of the relevant laws, master plan or zonal development plan or sanctioned building plan or the building is used for a purpose other than the one specified in the relevant statute or the master plan etc., such constructions put unbearable burden on the public facilities/amenities like water, electricity, sewerage etc. apart from creating chaos on the roads. The pollution caused due to traffic congestion affects the health of the road users. The pedestrians and people belonging to weaker sections of the society, who cannot afford the luxury of air-conditioned cars, are the worst victims of pollution. They suffer from skin diseases of different types, asthma, allergies and even more dreaded diseases like cancer. It can only be a matter of imagination how much the government has to spend on the treatment of such persons and also for controlling pollution and adverse impact on the environment due to traffic congestion on the roads and chaotic conditions created due to illegal and unauthorized constructions. This Court has, from time to time,

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taken cognizance of buildings constructed in violation of municipal and other laws and emphasized that no compromise should be made with the town planning scheme and no relief should be given to the violator of the town planning scheme etc. on the ground that he has spent substantial amount on construction of the buildings etc. - K. Ramdas Shenoy v. Chief Officers, Town Municipal Council, Udipi 1974 (2) SCC 506, Dr. G.N. Khajuria v. Delhi Development Authority 1995 (5) SCC 762, M.I. Builders Pvt. Ltd. v. Radhey Shyam Sahu 1999 (6) SCC 464, Friends Colony Development Committee v. State of Orissa 2004 (8) SCC 733, M.C. Mehta v. Union of India 2006 (3) SCC 399 and S.N. Chandrasekhar v. State of Karnataka 2006 (3) SCC 208.

¶114

Unfortunately, despite repeated judgments by the this Court and High Courts, the builders and other affluent people engaged in the construction activities, who have, over the years shown scant respect for regulatory mechanism envisaged in the municipal and other similar laws, as also the master plans, zonal development plans, sanctioned plans etc., have received encouragement and support from the State apparatus. As and when the courts have passed orders or the officers of local and other bodies have taken action for ensuring rigorous compliance with laws relating to planned development of the cities and urban areas and issued directions for demolition of the illegal/unauthorized constructions, those in power have

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come forward to protect the wrong doers either by issuing administrative orders or enacting laws for regularization of illegal and unauthorized constructions in the name of compassion and hardship. Such actions have done irreparable harm to the concept of planned development of the cities and urban areas. It is high time that the executive and political apparatus of the State take serious view of the menace of illegal and unauthorized constructions and stop their support to the lobbies of affluent class of builders and others, else even the rural areas of the country will soon witness similar chaotic conditions.”

¶117

To the same effect is the ratio of the judgment of the Hon'ble Supreme Court in the case of Priyanka Estates International Pvt. Ltd. and Ors. v. State of Assam and others, AIR 2010 Supreme Court 1030. By taking note of illegal construction on a large scale beyond even the sanctioned plans, it was observed as under:

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“73. It is a matter of common knowledge that illegal and unauthorised constructions beyond the sanctioned plans are on rise, may be due to paucity of land in big cities. Such activities are required to be dealt with by firm hands otherwise builders/colonisers would continue to build or construct beyond the sanctioned and approved plans and would still go scot-free. Ultimately, it is the flat owners who fall prey to such activities as the ultimate desire of a common man is to have a shelter of his own. Such unlawful constructions are definitely against the

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public interest and hazardous to the safety of occupiers and residents of multi-storeyed buildings. To some extent both parties can be said to be equally responsible for this. Still the greater loss would be of those flat owners whose flats are to be demolished as compared to the Builder.

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Even though on earlier occasions also, under similar circumstances, there have been judgments of this Court which should have been a pointer to all the builders that raising unauthorised construction never pays and is against the interest of society at large, but, no heed to it has been given by the builders. Rules, regulations and bye-laws are made by Corporation or by Development Authorities, taking in view the larger public interest of the society and it is a bounden duty of the citizens to obey and follow such rules which are made for their benefit. If unauthorised constructions are allowed to stand or given a seal of approval by court then it is bound to affect the public at large. An individual has a right, including a fundamental right, within a reasonable limit, it inroads the public rights leading to public inconvenience, therefore, it is to be curtailed to that extent.

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The jurisdiction and power of courts to indemnify a citizen for injuries suffered due to such unauthorised or illegal construction having been erected by builder/coloniser is required to be compensated by them. An ordinary citizen or a common man is hardly equipped to match the might and power

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of the builders.

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It is a sound policy to punish the wrong-doer and it is in that spirit that the courts have moulded the reliefs of granting compensation to the victims in exercise of the powers conferred on it. In doing so, the courts are required to take into account not only the interest of the petitioners and the respondents but also the interest of public as a whole with a view that public bodies or officials or builders do not act unlawfully and do perform their duties properly.”

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In the present case, situation is rather worse. Not only the initial construction, the petitioner continued construction during pendency of this writ petition in an unauthorised manner.

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To claim release of land owned by the petitioner, Shri Chopra placed reliance upon ratio of the judgment of a Division Bench of this Court in M/S Sindhu Education Foundation and others v. State of Haryana and others, Civil Writ Petition No. 7655 of 2005, rendered on November 17, 2010, on perusal of which this Court is of the opinion that no benefit of the same can be extended to the petitioner in this case. In that case, construction was raised by the petitioner after getting change of land use certificate. Additional land, which was in dispute, was kept for playground etc., for which application to get 'change of land use' certificate was filed before issuance of notification under Section 4 of the Act. That application was not decided whereas to the builders, who moved applications after issuance of Section 4 notification to get 'change of land use' certificate, the

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relief was granted. By noting naked discrimination done to the petitioner in that case, relief was granted. However, as has been discussed earlier, the position is altogether different in this case. The petitioner has no respect for law. As such no relief can be granted to it.

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Further contention of counsel for the petitioner that a Joint Site Inspection Committee recommended release of its entire land is not justified. To stress that averment, at the time of arguments, reference was made to item No. 32 in Annexure attached with proceedings of the Committee dated November 14, 2008. It was argued with vehemence that the Committee had recommended release of the entire land. When we peruse report of the Committee, it transpires that the averment made was not correct. The Committee has noted construction to the extent of 30 ft. x 80 ft. and in the concluding para of the recommendation, it is stated that the release of structures/ building in favour of the petitioner be considered on merits at the higher level.

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So far as release in favour of the Builders is concerned, Shri Sehgal has specifically stated that the land owned by S.N.Realtors and Era Land Developers was not subject matter of Section 4 notification. In the case of Triveni Infrastrcture, the Company, for the land which subsequently became part of Section 4 notification, moved an application for grant of licence on March 31, 2006. The licence was granted on January 23, 2007. Only letter of intent was issued after publication of notification under Section 4 of the Act. So far as the land release in favour of Harpreet Foods is concerned, the construction was raised by the land owner only after getting 'change of land use certificate'. The Land

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Acquisition Collector also recommended release of that land.

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Regarding exact area of construction/ building with the petitioner is concerned, in the report made by the Joint Site Inspection Committee, construction is shown to the extent of 30 ft x 80 ft. The photographs put on record Annexures P-4 to P-7 also show that much construction only. It appears that further construction was raised after filing of this writ petition. Admittedly, construction on the first floor was raised after issuance of notice of motion in this case. In the written-statement, respondent No. 4, District Town Planner had stated that 900 Square yards of area was released from acquisition. By filing an application, writtenstatement was amended and it was shown that constructed area to the extent of 267 Sq. yards along with proportionate vacant area, total measuring 534 Sq. yards of land has been released from acquisition. At the time of arguments, we have seen the record and we are satisfied affirm that the amount of land released, has correctly been given in the amended writtenstatement. It appears that earlier due to some typographic mistake, land measuring 900 Square yards was wrongly shown as having been released from acquisition.

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In all other writ petitions, construction has been raised in an unauthorised manner without getting any permission either under the 1963 Act or under the relevant Municipal laws. Even then in some cases, relief has been granted by releasing some portion of the land under construction and ordering acquisition of the vacant land. This Court feels that the action taken is perfectly justified.

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In view of above, no case is made out for interference.

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Dismissed.

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( Jasbir Singh ) Judge

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(Rakesh Kumar Garg) Judge