DISTRICT TOWN PLANNER Vs. HUKAM SINGH

JUDGEMENT

(1.) THE officers of the State of Haryana, namely District Town Planners of Karnal and Gurgaon have approached this Court with a prayer for quashing order dated 27.08.2007 (Annexure P-I) passed by the Tribunal constituted by the State of Haryana under the Panjab Scheduled Roads and Controlled Areas (Restriction of Unregulated Development) Act, 1963 (for brevity 'the Act'). The Tribunal has set aside the Show Cause Notices dated 20.01.2004 and 22.01.2004 (Annexure P-7) holding that the District Town Planner, Smt. Gurmeet Kaur has acted against the provisions of the Act, also had tampered with the record and acted very irresponsibly. Vide order dated 22.01.2004 (Annexure P-7), the respondent No. 1 who has been owner of land, was asked to restore the land to its original state by bringing it in conformity with the provisions of the Act and the rules framed therein. Earlier to passing of the aforementioned order, the petitioners have issued show cause notices to the respondents under Section 12 of the Act to appear and explain that why the respondent should not be prosecuted for having change use of land and order be issued to restore the land to its original state. The respondent No. 1 had entered into some agreement with Hutch Private Ltd. Co. for construction of communication tower without seeking permission for change of land use as per the requirement of Section 8 of the Act. A Show Cause Notice under Section 12 of the Act was issued which was not replied and in the meantime, respondent No. 1 alongwith Hutch company continued with the construction. Eventually, order dated 22.01.2004 (Annexure P-7) was passed, directing respondent No. 1 to restore the site as it was before raising of construction. Respondent No. 1 tried to seek help of Civil Court by filing Civil Suit No. 198 of 2004 but it was eventually withdrawn on 18.12.2007 (Annexure P-11). He also filed C.W.P. No. 449 of 2008 claiming that the removal of construction has caused him huge damages and the same are liable to paid by the petitioners. The Division Bench vide order dated 29.08.2008 noticed the fact of collaboration agreement as also raising of illegal construction within the controlled area without prior permission of the competent authority and then on the request made by the respondent No. 1, the writ petition was dismissed as withdrawn on 29.08.2008.

(2.) AFTER hearing learned counsel for the parties and perusing the impugned order passed by the Tribunal, we are of the view that the instant petition deserves to be allowed and the impugned order dated 27.08.2007 is liable to be set aside. The Tribunal has concluded that once the show cause notice has been issued by fixing a date of hearing then the authorities under the Act are not competent to proceed before the date fixed. The view of the Tribunal is discernible from the following observation which reads thus :

(3.) IN view of the aforementioned provision, the District Town Planner ordered for demolition of the unauthorized construction at site on 24.01.2004. Accordingly the same was demolished and the material lying at site was confiscated in addition to seven others unauthorized colonies/construction. The Tribunal has committed a grave error by stating the petitioners should have waited till the date of hearing despite the fact that respondents were continuing with their illegal activities. On 28.01.2004, the collaborator filed an application in the office of the District Town Planner, Karnal seeking permission for change of land use for construction of a communication tower on a disputed site. However, before the application made by the collaborator could be finalized, they withdrew the request as they were no longer interested in the construction of communication tower at the site belonging to respondent No. 1 (Annexures P-9 and P-10). After the construction was removed, a demand notice dated 30.6.2006 for recovery of cost incurred as per provisions of Section 12(3) of the Act was issued to respondent No. 1 directing him to pay a sum of Rs. 2,000/- as expenses for demolition of unauthorized construction. However, respondent No. 1 took the stand vide his letter dated 01.08.2006 (Annexure P-12) that as per the lease deed agreement dated 10.11.2003 with collaborator, it was the collaborator who was responsible for obtaining all legal permissions. The matter against respondent No. 1 was accordingly dropped and it was decided to recover the cost of demolition from the sale of material recovered from the site at the time of demolition. Despite accepting the request made by respondent No. 1, he filed an appeal before the Tribunal challenging the demand. The Tribunal has found the order dated 22.01.2004 as illegal and has also set aside the show cause notice dated 30.06.2006 by giving findings against the District Town Planner. The findings recorded by the Tribunal are not borne out and supported by the documents and records. Therefore, we can not accept that the order dated 22.01.2004 directing the respondents to restore the site and stop further construction could be termed as illegal. Moreover, we find that the respondent No. 1 has earlier approached this Court by filing CWP No. 449 of 2008 decided on 29.08.2008 claiming damages by alleging that the construction raised by him in collaboration with the company was legal and demolition by the petitioner was not in accordance with law which has been dismissed as withdrawn.