ORDER
G.S. Singhvi, J.
1. This petition has been filed for issue of a writ of mandamus directing the respondents not to demolish the compound boundary wall and the gate post of the petitioner's factory premises.
2. The facts of the case are that the petitioner is a Company incorporated under the Indian Companies Act, 1956. It has a factory situated at 54th milestone, village Allahpur, Tehsil Palwal, District Faridabad on the Delhi Mathura Road. The petitioner states that the boundary wall of its factory starts at a distance of 11 meters from the edge of the Delhi-Mathura Road and the land falling between the Factory's boundary wall and the said road belongs to the Gram Panchayat. The building of the Factory is said to be at a distance of 34 meters from the edge of the Delhi-Mathura Road and according to the petitioner this building has been raised strictly in accordance with the para meters laid down in the Punjab Scheduled Road and Controlled Areas Restriction of Unregulated Development Act, 1963 (for short' the Act of 1963'). Further case of the petitioner is that in March, 1994, it received notice Annexure P-2 dated 18.3.1994 issued by the District Town Planner (Enforcement), Faridabad, for demolition of the construction falling within 30 meter with a further threat that unless he gets his case compounded within 15 days first information report will be lodged with the police. The petitioner has further stated that on 19.7.1993 a representation was made to the Director, Town and Country Planning, Haryana, to compound the offence committed by the applicant by way of construction of the boundary wall but the respondents have not taken any step for compounding the offence and at the same time they are threatening with demolition of the construction made by it. Petitioner has also pleaded that in cases of a large number of similarly situated persons the respondents have compounded the offence and by not adopting the same course of action in its case the respondents have acted in violation of the fundamental right of equality guaranteed under Article 14 of the Constitution of India.
3. In reply, the respondents have pleaded that the petitioner has raised unauthorised construction violating the provisions contained in Sections 6 and 7 of the Act of 1963. Respondents have stated that even though the Commissioner, Gurgaon Division, passed an order on 11.7.1991 ( Annexure P. 6) directing the petitioner to remove the construction raised within 30 meters of the National Highway no step has been taken by it in this direction. Respondents have shown their willingness to act in accordance with the direction given by the Commissioner on the condition that the petitioner removes construction falling within 30 meters of the road. The case of the respondents is that the area where the petitioner has set up its industry falls within the controlled or notified area vide Haryana Government Gazette dated 4.7.1974 and even though the petitioner was not entitled to raise any construction without the prior permission on the Director, Town and Country Planning, Haryana, the petitioner has raised unauthorised construction. According to the respondents, the petitioner raised unauthorised construction even before he had submitted an application under Section 8 of the 1963 Act for permission to change the land use. It has been stated that the District Town Planner (Enforcement). Faridabad, issued a show-cause notice to the petitioner under Section 12 of the 1963 Act. The petitioner submitted applications dated 27.3.1989 and 11.5.1989 with a request that the unauthorised construction raised by it may be compounded and permission be granted for change of land use. That request made by the petitioner was declined on 8. 5. 1990. according to the respondents, the petitioner filed appeal against the order dated 8.5.1990. (Annexure R. I. ) and even though his appeal was allowed on 11.7.1991 on fulfillment of certain conditions the petitioner did not demolish the construction existing within 30 meters from the edge of the Delhi-Mathura Road and after a period of more than two years the petitioner applied for compounding of the unauthorised construction. This request of the petitioner was not entertained and he was called upon to fulfill the conditions enumerated in the order dated 11.7.1991. Despite that the petitioner did not comply with that order and has straightaway rushed to this Court for issue of a writ of mandamus.
4. No replication to the reply filed by the respondents has been filed even though an opportunity for that purpose was given to the petitioner on 22.3.1995.
5. The first argument of Shri Sanjay Vashisht is that the petitioner has not raised any unauthorised construction and, therefore, the impugned action taken by the respondents is ultra vires the provisions of the 1963 Act apart from being arbitrary. Mr. Vashisht argued that Section 3 of the 1963 Act prohibits erection or re-erection of a building within 30 meters on either side of the road and as the boundary wall constructed by the petitioner does not fail within the definition of ' building', the petitioner cannot be charged with the allegation of having raised unauthorised construction. The second contention of Shri Vashisht is that a large number of similarly situated factory owners have raised construction within 30 meters of the edge of the Delhi-Mathura Road and if no action has been taken in their cases to demolish the so-called unauthorised construction, the petitioner can not be discriminated. He argued that the respondents can not apply the methodology of pick and choose and cannot take different actions qua persons who are similarly situated.
6. The learned Assistant Advocate General argued that the petitioner is guilty of concealment of material facts in as much as he has suppressed this fact from the Court that he had raised construction even before making an application under Section 8 of the 1963 Act for permission to change the use of the land and, therefore, its case should not be heard on merits. Ms. Bahri argued that the conduct of the petitioner in hoodwinking the public authority and the Court should by itself justify dismissal of its petition. Another argument advanced by the learned by the learned Assistant Advocate General is that the petitioner has not challenged the legality of order Annexure P. 6 and therefore, he cannot be given relief against the demolition of the construction with falls within 30 meters of the edge of the Delhi-Mathura Road. She further argued that the petitioner's application dated 9.1.1993 vide Annexure R. 4 and the petitioner was called upon to demolish the unauthorised construction vide Annexure R. 5 dated 1.3.1994 but the petitioner has withheld both these documents from the Court.
7. Ms. Bahri lastly argued that even if the respondents have not taken action to demolish the unauthorised construction raised by other similarly situated factories, the petitioner is not entitled to a writ of mandamus for commission of another illegality.
8. There is no dispute between the parties that Delhi-Mathura Road has been notified as a scheduled road and the provisions of 1963 Act and the Rules framed thereunder are applicable to the case of the petitioner. The 1963 Act has been enacted by the legislature to prevent haphazard and sub-standard development along the schedule roads and in controlled areas in the state of Punjab (for the purposes of this case it should be read as for the State of Haryana) Section 2 of 1963 Act contains definition of various terms and expressions used in the Act. The expression Controlled area' has been defined in Section 2(5). The word 'building' has been defined in Section 2(11). The expression 'erect or re-erect any building' has been defined in Section 2(12). Section 3 contains prohibition against erection or re-erection along the scheduled roads. Section 7 contains prohibition on use of land in controlled areas. Section 8 speaks of application for permission etc. as envisaged in Sections 6 and 7 of the Act.
9. For the purposes of this case, Section 2(5), (11) and (12), Sections 3, 6, 7 and 8 are relevant and the same are reproduced below :-
' 2(5) 'Controlled area' means an area declared under Section 4 to be a controlled area;
2(11) : 'building' means any shop, house, hut, outhouse, shed or stable, whether used for the purpose of human habitation or otherwise and whether of masonry, bricks, wood mud, thatch, metal or any other material whatever, and includes a wall and a well;
2(12) : 'erect or re-erect any building includes - (a) Any material alteration or enlargement, of any building;
(b)the conversion by structural, alteration into a place for human habitation of any building not originally constructed for human habitation;
(c) the conversion into more than one place for human habitation of a building originally constructed as one such place;
(d) the conversion of two or more places of human habitation into a greater number of such places ;
(e) such alterations of a building as affect an alteration of its drainage or sanitary arrangements, or materially affect its security;
(f) the addition of any rooms, building, outhouses, or other structures to any building; and
(g) the construction in a well adjoining any street or land not belonging to the owner of the wall of a door opening on to such street or land.
SECTION 3 : Prohibition to erect or re-erect buildings along scheduled roads- No person shall erect or re-erect any building or make or extend any excavation or lay out any means of access to a road within one Hundred meters on either side of the road reservation of bye-pass or within thirty meters on either side of the road reservation of any scheduled road not being a bye-pass.
Provided that nothing in this section shall apply to :-
(a) the repair to a building which was in existence immediately before the commencement of this Act or any erection or re-erection of such a building which does not involve any structure alteration or addition therein; or
(b) the erection or re-erection of a building which was in existence immediately before the commencement of this Act and which involves any structural alteration or addition, with the permission of the Director; or
(c) the laying out of any means of access to a road with the permission of the Director, or;
(d) the erection or re-erection of a motor fuel-filling station or a bus-queue-shelter with the permission of the Director.
Section 6 : Erection or re-erection of buildings etc. in controlled areas-Except as provided hereinafter, no person shall erect or re-erect any building or make or extend any excavation of lay out any means of access to a road in a controlled area save in accordance with the plans and the restrictions and conditions referred to in Section 5 and with the previous permission of the Director;
Provided that no such permission shall be necessary for erection or re-erection of any building if such building is used or is to be used for agricultural purposes or purposes subservient to agriculture.
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 was used on the date of publication of the notification under Sub-section (1) of Section 4, and no land within such controlled area shall be used for the purposes of a charcoal kiln, pottery-kiln, lime-kiln or brick field or for quarrying stone, bajri, surkhi, kankar or for other similar extractive or ancillary operation 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 8: Application for permission etc. and the grant or refusal thereof-
(1) Every person desiring to obtain the permission referred to in Section 3 or Section 6 or Section 7 or a licence under Section 7 shall make an application in writing to the Director in such form and containing such information in respect of the land, building, excavation or means of access to a road to which the application relates as may be prescribed.
(2) On receipt of such application the Director, after making such enquiry as he considers necessary, shall by order in writing either -
(a) grant the permission or licence subject to such conditions, if any, as may be specified in the order; or
(b) refuse to grant such permission or licence.
(3) The Director shall not refuse permission to the erection or re-erection of building which was in existence in a controlled area on the date on which the notification under Sub-section (1) of Section 4 was published, nor shah1 he impose any condition in respect of such erection or re-erection unless he is satisfied, after affording to the applicant an opportunity of being heard, that there is a probability that the building will be used for a purpose, or is designed in a manner, other than that for which it was used or designed on the date of which the said notification was published.
(4) If, at the expiration of a period of three months after an application under Sub-section (1) has been made to the Director, no order in writing has been passed by the Director, the permission shall, without prejudice to the restrictions and conditions signified in the plans published in the Official Gazette under Sub-section (7) of Section 5, be deemed to have been given without the imposition of any conditions. (5) The Director shall maintain such register as may be prescribed with sufficient particulars of all such cases in which permission or licence is given or deemed to have been given or refused by him under this Section, and the said register shall be available for inspection without charge by all persons interested and such persons shall be entitled to take extracts therefrom.'
10. In order to give effect to the provisions of the Act, the State Legislature has framed the Punjab Scheduled Roads and Controlled Areas Restriction of Unregulated Development Rules, 1965. Part I of these Rules contains definitions etc. Part II contains provisions relating to control along scheduled roads and by-passes etc. Rule 4 contains details of the applications for permission under Section 3. Rule 5 contains principles and conditions under which application filed under Rule 4 may be granted or refused. Part III contains various rules relating to preparation of development plans. Part IV contains rules for development of colonies in controlled areas. Part V contains' rules for laying out means for access to a road in controlled areas. Part VII contains building rules. Rule 38 contains certain definitions, including the definition of the expression 'building line'. Since the petitioner has Heavily relied on the definition of 'building line' incorporated in Rule 38(x), the same' is reproduced hereunder:-
' 38. Definitions:
In this Chapter unless the context otherwise requires:-
- - - - (x) 'building line' shall mean a fixed line, if any, specified for a site beyond which no building within that site other than a compound wall shall project.'
11. Argument of the learned counsel that the construction raised by the petitioner does not fall within the restrictions contained in the 1963 Act is in our opinion based on a wholly misconceived assumption that a wall is not included in the definition of the term 'building'. A bare look at the definition of the word 'building' under Section 2(11) makes it clear that among other things building includes a wall and a well. Definition of the expression 'building line' contained in Rule 38(x) has a limited relevance in the context of that Chapter. That definition neither expressly controls nor can it over-ride the specific provision contained in the parent Act so far as the definition of the term 'building' is concerned. Therefore, the learned counsel for the petitioner is not right in contending that the construction raised by the petitioner within 30 metres from the edge of the Delhi-Mathura road cannot be treated as unauthorised construction so as to attract the provisions of the 1963 Act.
12. Another reason for not accepting the submission of the learned counsel for the petitioner is that the petitioner has not challenged the legality of the order Annexure P. 6. While deciding his appeal directed against the order dated 8.5.1990 (Annexure R. 1) passed by the Director, Town and Country Planning the Commissioner, Gurgaon Division passed an order against the demolition of the entire construction made by the petitioner but at the same time he directed that construction within 30 metres be removed. The operative portion of the order Annexure P. 6 reads thus -
' Therefore, the appeal is accepted to the extent that the construction outside the 30 metres of the scheduled road be compounded as per rule and the construction within 30 metres be removed.'
13. Since the petitioner has not challenged the legality of this order and the same has acquired finality, this Court cannot hold that the direction given by he respondents to the petitioner to demolish the construction falling within 30 metres from the edge of the Delhi-Mathura road is illegal or without jurisdiction or that the respondents have acted arbitrarily qua the petitioner.
14. Yet another ground for not accepting the contention of the learned counsel is that the petitioner has not only raised the compound wall but has also constructed a guard room. This evident from a perusal of para 2 of the order Annexure P. 6, which incorporates a statement made by the Advocate of the petitioner before the Commissioner, Gurgaon Division. That apart, a perusal of Annexure R. 3 dated 9.1.1993 shows that the petitioner has himself treated the order of the Commissioner as final. In that application he sought enforcement of the order passed by the Commissioner on 11.7.1991 (refer to para 4 of Annexure R. 3). The departmental authorities wrote Annexures R. 4 and R. 5 to the petitioner and called upon him to demolish the unauthorised construction in terms of the order dated 11.7.1991. That has not been done by the petitioner. Therefore, after a period of almost three years from the passing of order dated 11.7.1991 the petitioner cannot be heard to say that the construction raised by him is not unauthorised.
15. The second contention of the learned counsel which is founded on the plea of discrimination is also without substance. No doubt the petitioner has given the names of certain factories in para 17 and has alleged that no action has been taken by the department for demolition of the unauthorised construction raised by these factories and there is only a bald denial that no construction is allowed within 30 metres of the either side of the scheduled roads, we are of the considered opinion that even if the petitioner is right in making a statement that the alleged constructions made by others have not been demolished, no relief can be given to him by issuing a writ of mandamus. The petitioner cannot seek issue of a writ of mandamus the effect of which would be perpetuation of violation of law because it is a well settled principle of law that jurisdiction under Article 226 cannot be exercised by the Court for passing an order which would result in violation of law. Writs are issued by the High Court for enforcement of legal and fundamental rights and not for permission to the petitioner to commit or to continue to commit violation of law nor can the Court directly or indirectly abet breach of the provisions of the law. The present one is a case in which the petitioner has indulged in blatant misuse of the liberty given to him by the authorities to set up a factory. It started unauthorised construction even before it was given permission for change in the land use. Not only this, it did not remove the construction even after the Commissioner passed an order which was largely favourable to it. It continued to enjoy the unauthorised construction for a period of almost three years before filing the writ petition. In our opinion, a person having such conduct does not deserve any indulgence by the Court in exercise of its equitable jurisdiction under Article 226 of the Constitution of India. We would emphasise that issue of a writ in such like matter would encourage those people who indulge in violation of law. This would also encourage people in raising unauthorised construction of buildings etc. and then approach the Court for protection of, their unauthorised constructions raised on the sides of the National Highways cause great injury to the public interest and every attempt made 'by individuals to take law into their own hands deserves to be discouraged.
16. Another and more serious ground for declining relief to the petitioner is his conduct in concealing material facts from the Court and making a successful attempt to secure an interim order from the Court in his favour. The petitioner has cleverly presented this petition without highlighting the fact that the Commissioner, Gurgaon Division, had directed him as early as on 11.7.1991 that it should remove the unauthorised construction raised by it within 30 metres of the edge of the Delhi-Mathura road. Moreover, it suppressed the facts that it had submitted an application before the Director, Town and Country Planning, on 9.1.1993 and the same had been rejected vide Annexure R. 4. The petitioner has also concealed the fact that a notice was given to it vide Annexure R. 5 dated 1.3.1993 to carry out the demolition. If these communications had been produced before the Court it would have become clear to the Court that the petitioner is trying to misuse the process of the Court by continuing the anauthorised construction. Such conduct of the petitioner is by itself sufficient to disentitle it from claiming any relief under Article 226 of the Constitution of India. '
17. For the reasons mentioned above, the writ petition is dismissed. The petitioner who has committed wanton violation of the provisions of 1963 Act and has abused the process of the Court shall pay costs of Rs. 10,000/- to the respondents.
18. Though we are dismissing the writ petition, we cannot altogether ignore the fact that unauthorised constructions have, in fact,, been raised on both the sides of the National Highways within the territory of the State of Haryana, and the departmental authorities have been rather lukewarm and at times even negligent in enforcing the provisions of the 1963 Act by removing the unauthorised encroachments/constructions on both the sides of the National Highways passing through the territory of the State of Haryana. Rule of law is the corner stone of our constitutional system and unless it is enforced by all the organs of the State, namely, the Legislature, the Judiciary and the Executive, the system cannot work. People's faith and confidence in the constitutional system has to be maintained by all the three organs of the State. If the legislature and the Executive are bound to implement the various constitutional provisions, the Judiciary is equally under a duty to take note of the constitutional mandates and pass appropriate orders for their enforcement. The goal of social justice and equality, which are two pillars of our constitutional system, have to be kept in mind by the Courts while enforcing the provisions of the Constitution and the other legislative enactments. The burden of Courts to enforce the constitutional provisions has increased in the recent times because common man's confidence in the working of the Executive and the Legislature has been considerably eroded. It is, therefore, high time that the Courts do not remain silent spectators of the wanton breach of law and allow a situation to develop where the people think that those who are haves in the society do not bother about law and they can go unpunished even after violating the provisions of law. Encroachments on public lands, unauthorised constructions and violation of various provisions of law which are intended to regulate the construction of buildings and other constructions are being flouted with impunity and, therefore, is imperative for this Court to issue positive directions to the Executive to give effect to the provisions of various enactments which regulate construction of buildings etc.
19. In view of the provisions contained in the 1963 Act, the respondents are duty-bound to implement the provisions of 1963 Act in their letter and spirit so that the future development on the two sides of the National Highways can be regulated properly. We, therefore, direct that -
(1) the respondents should take positive steps to remove all unauthorised constructions/encroachments on the two sides of all the National Highways passing through the State of Haryana, including the Delhi-Mathura road;
(2) the respondents should give appropriate notices to the affected persons (individuals/firms/companies) who have raised constructions/have made encroachments in violation of the provisions of the 1963 Act, and thereafter pass orders for removing the unauthorised constructions/encroachments;
(3) such steps should be taken by the respondents within a period of six months of the receipt of a certified copy of this order by the Chief Secretary to the Government of Haryana, and the Director, Town & Country Planning Haryana, Chandigarh, and the District Town Planner (Enforcement), Faridabad, and
(4) a detailed report about the steps taken by the respondents in compliance of this direction must positively be sent to the Court within a period of seven months.
20. The Registry should list this case before the Court on December 20, 1995 so that the court may know as to whether these directions have been complied with by the Government and to take appropriate action, if any, against the defaulting officials.
21. All the Civil Courts in the State of Haryana are directed not to pass any order of ad-interim injunction against the action initiated by the Government of Haryana for removal of unauthorised construction/encroachments on the two sides of the National Highways under the provisions of 1963 Act in pursuance of the directions given by the Court.
22. Copies of this order be sent to all the District Judges, the Chief Secretary Government of Haryana Director Town and Country Planning Haryana and the District Town Planner (Enforcement), Faridabad.