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Judgment
Jawahar Lal Gupta, J.—The petitioner was directed to demolish the "Illegal construction". Its appeal to the Commissioner and the Secretary to Government Haryana having been dismissed by order dated December 1, 1992 (Annexure P 8) the petitioner has approached this Court through the present petition. A few facts may be noticed
The petitioners Company is engaged in manufacturing of Worsted Yarn. The unit is located on the Delhi, Jaipur National Highway in village Dawal. District Rewari, in the State of Haryana. It had initially purchased land measuring 79 kanals 2 marlas. Vide letter dated August 8, 1988, the petitioner had applied for the issue of a ''No Objection Certificate'' for the use of agricultural land for industry This permission was granted by the Director (Town and Country Planning), Haryana vide order dated December 9, 1988. Thereafter, the Company purchased another piece of land adjoining the earlier one measuring 10 kanals 11 marlas. It set up an industrial unit on this land. Thereafter, the petitioner applied to the Union of India for permission to construct and approach road from the National Highway. It gave an undertaking to remove any structure which may be required to be removed for carrying out any work of improvement or repair to the road. This permission was granted vide letter dated May 3, 1990 (Annexure P-2). The petitioner was, however, informed that the National Highway was proposed to be widened to four lanes in the near future and no assurance for providing a gap in the central verge of this location could be given.
Vide letter dated August 21, 1989, the petitioner applied for the issue of a no objection certificate for change of user of Agricultural land for industrial purposes even in respect of the additional land purchased by it. It may be noticed that the petitioner had constructed a boundary wall and a gate-post which fell within the 30 meters restricted belt of the Delhi-Jaipur Scheduled Road in contravention of provisions of Section 3 of the Punjab Scheduled Roads and Controlled Areas Restriction of Unregulated Department Act, 1963. In response to the letter dated August 21, 1989, the petitioner was informed that the land owner had committed violation of Section 7(1) of the Haryana Development and Regulation of Urban Areas Act, 1975 by selling the land and the petitioner-Company had committed an offence u/s 7 (ii) by raising the construction on the additional piece of land without the permission of the Director as required u/s 3. Accordingly, the petitioner was informed that the no objection certificate could not be issued. Vide letter dated July 3, 1990, the petitioner requested the appropriate authority that offence may be compounded. In response to this letter, the Director (Town & Country Planning), vide his letter dated November 9, 1990 directed the petitioner to deposit Rs. 1,16.950/-as composition charges. He further stated that the ''No Objection Certificate'' will be issued on the condition that the petitioner would demolish the construction falling within 30 meters restricted belt of the National Highway i e. Delhi Jaipur Scheduled Road. The petitioner deposited an amount of Rs. 1,16,950/- vide letter dated April.10.1991. Further vide letter dated April 20, 1991, the petitioner gave an undertaking that it would demolish the boundary wall and gate post at its own cost within a period of one month The petitioner avers that vide letter dated June 3, 1991 it informed respondent No. 3 that "the process of demolishing the boundary wall and gate-post and construction of the same at the suitable place will take 2-3 months because of Architecture involvement and demarcation of the place where these can be reconstructed." Request for grant of 3 months'' time was thus made. A copy of this letter has been produced as Annexure P-4 In response to this letter, the petitioner was informed vide notice dated July 18, 1991 that the unauthorised structure may be got demolished by July 29, 1991 failing which the needful shall be got done by the District Town Planner, Rewari at the petitioner''s expense. A copy of this notice has been produced with the writ petition as Annexure P-5. The petitioner filed a civil suit for the issue of a permanent injunction challenging the above mentioned notice and ad-interim stay was granted to the petitioner. It was ultimately vacated on November 19, 199l. The petitioner filed an appeal before the learned Additional District Judge, which was disposed of in terms of the mutual compromise on May 6, 1992. A copy of the order of the learned Additional District Judge has been produced as Annexure P-6 When the petitioner did not demolish the structure, two notices dated June 11 1992 and July 16, 1992 u/s 10 were served on the petitioner. The latter notice has been produced as Annexure P 7 The petitioner challenged these notices before the State of Haryana. This appeal was dismissed vide order dated December 1, 1992. Finally, the present petition has been filed. The order has been challenged as being without jurisdiction and discriminatory.
We have heard Mr. R. K. Chibbar, learned counsel for the petitioner.
A perusal of the pleadings of the petitioner and the impugned order shows that an undertaking had been given on April 20, 1991 that the petitioner will demolish the boundary wall and gate post within a period of one month. It did not abide by the under" taking. The petitioner was given a notice. It filed a civil suit in the Court of Senior Subordinate Judge, Rewari. Initially, a temporary injunction was granted in favour of the petitioner, which was, however, vacated on November 19, 1991. The petitioner filed an appeal. Ultimately, the matter was compromised and the appeal was disposed of vide order dated May 6, 1992, wherein the learned Additional District Judge had inter alia observed that "the appeal is decided to the effect that the respondent shall be competent to remove the encroachment to that extent and that the appellant shall themselves remove the encroachment without any objection" In spite of the above, the petitioner did not remove the encroachment. The petitioner was served with a notice dated June 11, 1992 directing it to remove the unauthorised construction. It did not pay any heed. Then another notice dated July 16, 1992 was served on the petitioner. the filed an appeal before the Commissioner, Gurgaon Division, who was not competent to decide the matter under the Act. The case was forwarded to the Government. This appeal was also rejected. It is thus apparent that the petitioner had given an undertaking which it has not honoured It has failed to abide by its own commitment. No valid basis has been either pleaded or shown. In such a situation, we are unable to find any infirmity in the impugned notice or the order (Annexure P-8) passed by the respondents.
Mr. Chhibbar vehemeatly contends that the order is discriminatory inasmuch as no action has been taken against the eight units mentioned in paragraph 13 of the writ petition and only the petitioner has been singled out and called upon to demolish the structure. We are unable to accept this contention. Firstly, a perusal of the order dated December 1, 1992 clearly shows that the petitioner had not "named any industrial unit who have raised construction in violation of the provisions of the Act". The particulars having not been pointed out before the authority, the petitioner cannot be permitted to raise the issue for the first time in the writ petition. Further a perusal of the order also shows that the District Attorney appearing on behalf of the Department had clearly stated before the authority that "action is being taken against unauthorised construction." Still further, it has not been shown by the petitioner that it had not raised any unauthorised construction. If the petitioner had actually raised construction in violation of the provisions of the Act, this Court in the exercise of its writ jurisdiction cannot compel the Government to perpetuate a violation of law and to allow the petitioner to reap the advantage resulting from an illegal act. it may be that the unauthorised construction in other cases has not come to the notice of the appropriate authority and if that be so, we are certain that the law would have its course and that the appropriate authority shall take suitable action.
Mr. Chhibbar also contended that the action of the respondents was arbitrary and violative of the undertaking embodied in the compromise recorded by the learned Additional District Judge, Rewari. The order of the learned Additional District Judge as produced by the petitioner at Annexure P. 6 reads as under :-
"The parties have compromised. The statement of the parties have been recorded. The counsel for the appellant has made statement that whenever respondent wanted to remove the construction on the road side for widening the road or clearing the area prescribed under the law, they shall remove the construction at their own expenses without any objections. The Government pleader has also made the statement that the appeal be decided in the light of the aforesaid compromise.
The appeal against the interim order, department of Town and Country Planning want to remove the encroachment existing within 30 meter of the National Highway, Delhi-Jaipur Road. So, the appeal is decided to the effect that the respondent shall be competent to remove the encroachment to that extent and that the appellant shall themselves remove the encroachment without any objection. The parties are directed to appear in the lower court on 19.5.1992".
A perusal of the above order clearly shows an undertaking bad been given by the petitioner to remove the construction. Mr Chhibbar, however, contends that it was a conditional undertaking The petitioner had to remove the construction only when the authority wanted to widen the road. This contention ignores the final decision given by the learned Judge to the effect that "the appellant shall themselves remove the encroachment without any objection". This was the final order passed by the Court and the petitioner is bound by it.
The petitioner, in our view, had given an undertaking as far back as April 20, 1991 to demolish the boundary wall and the gate post. It has, by adopting dilatory tactics delayed the demolition for a considerable length of time. It has resorted to various litigate processes in its attempt to avoid carrying out its obligation. It has failed in all its efforts There is no equity in favour of the petitioner We are accordingly, not inclined to invoke our discretionary jurisdiction in favour of a Company which has failed to fulfil its promises.
Accordingly, there is no merit in the this petition. We dismiss it in limine.