Ram Sarup vs State of Haryana

S.S. Kang, J.

Whether the construction of a building within the controlled area around Braham Sarovar declared under subsection 1(b) of section 4 of the Punjab Scheduled Roads and Controlled Areas Restriction of Unregulated Development Act, 1963 (for short `the Act'') without complying with the provisions of section 6 of the Act renders the default liable to prosecution under section 12 of the Act.

A factual backdrop will help to delineate the contours of the controversy

Messrs Singla Rice and General Mills was set up in 1972 on a plot of land measuring about five acres situated within the municipal limits of Thanesar Town. Ram Sarup, petitioner, is a partner of the firm which own the mills, abovementioned.

The Government of Haryana vide notification dated June 26, 1982, issued under subsection 1(b) of section 4 of the Act declared `controlled area'' around Braham Sarovar as specified in the Schedule. The land and premises of Messrs Singla Rice and General Mills fall within this controlled area.

Ram Sarup, petitioner, constructed three rooms and some other accommodation on this land (there is a dispute between the parties as to whether this construction was made before the notification or after the notification). He made an application to the Municipal Committee on August 25, 1980, and the Municipal Engineer vide orders dated September 16, 1980, certified that they had no objection to the installation of Singla Industries.

The petitioner was surprised to receive a notice dated November 6, 1980 (Annexure P4) from the Director Town and Country Planning, Haryana, intimating him that he had used land at or near Messrs Singla Rice and General Mills, Salalpur Road, Thanesar, in contravention of the provisions of sub section (1) of section 7 and section 10 of the Act. It was required of the petitioner to stop further construction and to appear before him on November 20, 1980, to show cause why he should not be ordered to restore the land to its original state or to bring it in conformity with the provisions of the Act or the rules, framed thereunder. The petitioner submitted a reply contending that the notice was invalid as Messrs Singla Rice and General Mills had not raised any construction and the construction was raised by Singla Industries by way of extension of Messrs Singla Rice and General Mills, Thanesar, District Kurukshetra and took some other objections. Thereafter, the respondents filed a complaint against the petitioner which is now pending before the Court of Judicial Magistrate Ist Class, at Kurukshetra.

Aggrieved, the petitioner has filed this writ petition, challenging the notification dated June 26, 1980, issued under section 4 of the Act, declaring area to the extent of 2 kilometers around Braham Sarovar, Kurukshetra, as controlled area and the proceedings in the complaint case filed against him.

The respondents have appeared in reply to the notices issued by this Court and have shown cause. They have filed a written statement. It is denied therein that the construction for which action is being taken against the petitioner were raised before the issuance of this notification. It is contended that the notification issued is valid and in accordance with law. The petitioner was given show cause notice under subsection (2) of section 12 of the Act to stop construction and to appear before the competent authority, but the petitioner failed to appear before him and file any reply to the said notice. Second notice dated December 17, 1980, was also issued to the petitioner, but the petitioner continued unauthorised construction in violation of section 7 of the Act. Therefore a complaint under section 12(1)(b) of the Act was filed in the Court of the Chief Judicial Magistrate, Kurukshetra on May 5, 1981.

Mr. N.C. Jain, Senior Advocate, the learned counsel for the petitioner, has argued that the notification dated June 26, 1980, (Annexure P1) is void, illegal and wholly without jurisdiction. Under subsection (1)(b) of section 4 of the Act, the State Government can declare any area adjacent to and within the distance of 2 kilometers from the outerside of, among others, an ancient and historical monument. Braham Sarovar at Kurukshetra is neither ancient nor historical. It is not even a monument. The ancient and historical monuments are those, which have been so declared under the provisions of the Ancient Monuments and Archaeological Sites and Remains Act, 1958 (Act No. 24 of 1958). The learned counsel contended that the Braham Sarovar has not been declared to be a historical monument under Act No. 24 of 1958. Even otherwise there is no evidence that this Sarovar is an ancient or historical monument. He has also contended that he has filed an affidavit of the petitioner dated September 13, 1981, showing that the Braham Sarovar is not treated to be an ancient monument either by the Archeological Department or the Kurukshetra University. This submission has not commended itself to me. No Indian is ignorant of the historical significance of Kurukshetra. Kurukshetra has found its place even in the ancient Indian lore. Everybody, in India, has heard of the great battle of Mahabharat, which was fought at Kurukshetra. Braham Sarovar and other places around it are monuments to those brave heroes who lost their lives in the defence of truth. It could not be plausibly argued that Kurukshetra is not historical or it is not ancient. Braham Sarovar is as old as Kurukshetra. Expression `monument'' is a term of very wide connotation. All places, which are in any way associated with a great man, event or action are termed as `monuments''. Even the definition of `monument'' as given in the 1958 Act is also very wide and it is only an inclusive definition.

It cannot be accepted, as contended by Shri Jain, that only those historical and ancient monuments can be taken into account for the purpose of section 4 of the Act which have been so declared under the provisions of 1958 Act. That Act has a different purpose to fulfil. The object of 1958 Act is to provide preservation of ancient and historical monuments and archeological sites and remains of national interest etc. The object behind the enactment of the Act is different. It has been devised to control the haphazard growth of houses and colonies around municipal towns and ancient and historical monuments. So, it cannot be said that only those ancient monuments which have been notified under the 1958 Act need protection from the illplanned haphazard slums.

Mr. B.S. Gupta, the learned counsel for the State, has contended that Braham Sarovar at Kurukshetra will squarely fall within the definition or the phrase `public institution'' in clause (b) of subsection (1) of section 4 of the Act also. Undoubtedly, Braham Sarovar is a place meant for the public. It is an Institution also. So, Mr. Gupta is right in contending that Braham Sarovar can be covered by the definition of `public institution'', as mentioned in section 4 of the Act.

The assertion of the petitioner that the construction had been made before the issuance of notification has been controverted by the respondents. It is not necessary for me to determine this issue, because it is for the trial Magistrate to decide this question, if raised by the petitioner.

Consequently, I find no merit in this writ petition and dismiss the same. I, however, make it clear that any observation made in this judgment will not affect the merits of the case and the learned Magistrate shall decide the case independently on the basis of the evidence adduced before him. It is needless to say that it will be open to the petitioner to raise all such pleas before the trial Court as are available to him in law. No costs.