CIVIL WRIT PETITION NO. 7711 OF 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. DATE OF DECISION: April 05 , 2011. Parties Name New Vidya Niketan Educational Society ...PETITIONER VERSUS The State of Haryana and others ...RESPONDENTS CORAM: Hon'ble Mr. Justice Jasbir Singh Hon'ble Mr. Justice Rakesh Kumar Garg PRESENT: Mr. Ashwani Kumar Chopra, Sr. Adv., with Mr. G.S.Sullar, Advocate, for the petitioners Mr. Arun Jain, Sr. Advocate, with Mr. Shiv Kumar, Advocate; Mr. Adarsh Jain, Advocate; Mr. Ram Bilas Gupta, Advocate; Mr. Hemant Sarin, Advocate; Mr. Kamal Sehgal, Addl. A.G., Haryana; Mr. Gitish Bhardwaj, Advocate, for Mr. Arun Walia, Advocate; Mr. Manish Bansal, Advocate; Jasbir Singh, J. (oral) CIVIL WRIT PETITION NO. 7711 OF 2009 -2- JUDGMENT 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). 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. 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 8th standard,and then upto 10th 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. This writ petition has been filed to impugn a notification issued CIVIL WRIT PETITION NO. 7711 OF 2009 -3- 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 CIVIL WRIT PETITION NO. 7711 OF 2009 -4- stake. By stating that releasing land for a School will be in public interest, a prayer has been made to allow this writ petition. Facts re: other writ petitions: CWP No. 7746 of 2009: 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. CWP No. 8731 of 2009: 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. CWP No. 8531 of 2009: 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. CIVIL WRIT PETITION NO. 7711 OF 2009 -5- CWP No. 2227 of 2011: 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. CWP No. 9085 of 2009: 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: Land under acquisition is lying vacant. 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 CIVIL WRIT PETITION NO. 7711 OF 2009 -6- 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. 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. Prayer made above has vehemently been opposed by the State CIVIL WRIT PETITION NO. 7711 OF 2009 -7- 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. 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 CIVIL WRIT PETITION NO. 7711 OF 2009 -8- 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. 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: “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 CIVIL WRIT PETITION NO. 7711 OF 2009 -9- short the Act) and the construction was made without getting any permission from the competent Authority. 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. 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. 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. A photocopy of this order be placed on the files of other connected cases.” 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: CIVIL WRIT PETITION NO. 7711 OF 2009 -10- “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. A copy of order be placed on the files of connected cases.” 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. CIVIL WRIT PETITION NO. 7711 OF 2009 -11- 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. 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? 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 CIVIL WRIT PETITION NO. 7711 OF 2009 -12- 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. 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: “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 CIVIL WRIT PETITION NO. 7711 OF 2009 -13- 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.” 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: “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. 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 CIVIL WRIT PETITION NO. 7711 OF 2009 -14- 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.” 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: “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. 14. The Supreme Court has very forcefully observed about the powers of the court in A.I.R. 1981 S.C. 625. “The writ must CIVIL WRIT PETITION NO. 7711 OF 2009 -15- right the wrong fortwith or must stand self condemned as make believe.” 15. 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. 16. 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