Suneja Pharmaceuticals vs Divisional Commissioner, Gurgaon

N.K. Sodhi, J.

This petition under Article 226 of the Constitution of India is directed against the order date April 2, 1991 passed by the Director, Town and Country Planning, Haryana, Chandigarh (for short, the Director) whereby, the request of the petitioner for regularising the unauthorised construction was declined. The appellate order dated February 6, 1992 dismissing the appeal as not maintainable against the said order has also been impugned in this petition.

The petitioner firm purchased in October, 1984 an area measuring 983 sq. yards and thereafter proceeded to construct sheds for installing a pharmaceutical unit and is also said to have constructed its administrative complex thereon. While the construction was going on, it was reported to the Director that the same was in contravention of same of the provisions of the Punjab Scheduled Roads and Controlled Areas Restriction of Unregulated Development Act, 1963 (hereinafter called ''the Act'') the land of the petitioner being within the controlled area as declared by the State Government under the Act. A notice dated March 13, 1985 was issued directing the petitioner to stop the construction immediately and its representative was required to appear in the office of the Director on 22.3.1985 at 10.00 a.m. to show cause as to why the petitioner be not ordered to restore the land in the controlled area of Gurgaon to its original position. The petitioner having failed to bring the construction in conformity with the provisions of the Act and rules framed thereunder within the time allowed, the Director served another notice dated January 9, 1991 under subsection (3) of Section 12 of the Act and allowed twentyfour hours time to comply with the order failing which the petitioner was informed that the department would take such measures and may be necessary to give effect to the order and recover the costs of such measures from the petitioner. In reply to these notices, the petitioner again as per letter dated February 26, 1991 requested the department for an early decision of his application for composition pending since 1985 in regard to the admitted unauthorised construction. The request of the petitioner for compounding of the unauthorised construction was, however, rejected by the department as per letter dated April 2, 1991 (Annexure P32 with the writ petition), the relevant part of which reads as under :

"Subject : Compounding of construction of M/s. Suneja Pharmaceuticals Kh. No. 1154/2, Behrampur Road, Gurgaon.

Reference your letter dated 20.9.89 on the subject cited above.

In this connection it is to inform you that your request cannot be acceded to for the reasons mentioned below :

(i) That the unauthorised construction does not conform to the building Byelaws of this department.

(ii) That the proposed site is accessible only by a 12''wide approach, while it should be at least 30'' wide.

(iii) That the authorised constructions have been raised inspite of notices issued by the District Town Planner, Gurgaon on 22.8.90 and 20.9.90.

Sd./

Distt. Town Planner (H.Q.),

for Distt, Town & Country Planner, Haryana, chandigarh."

Feeling aggrieved against this order, the petitioner filed an appeal under Section 10 of the Act before the Commissioner, Gurgaon and the same was dismissed as not maintainable by an order dated February 6, 1992

Learned counsel for the petitioner while challenging the impugned orders contended before us that the department having allowed the petitioner to raise construction in the year 198485 could not now be permitted to turn around to say that the same was in contravention of the provisions of the Act, It has also urged that the order of the Commissioner, Furgaon, dated February 6, 1992 holding that the appeal filed before him was not maintainable was illegal inasmuch as the appeal was competent under Section 10 of the Act and the Commissioner ought to have decided the same on merits.

After hearing the counsel for the petitioner, we find no merit in either of the two contentions. It is not disputed that the land in question which was purchased by the petitioner falls within the controlled area as declared by the State Government under Section 4 of the Act. The petitioner could not, therefore, construct any building or make or extend any excavation except in accordance with the plans and the restrictions imposed by the department and with the previous permission of the Director. Admittedly, the previous permission was not obtained and as is clear from the notices issued by the department from time to time, the construction raised by the petitioner was not in conformity with the building byelaws of the department. The land in question was purchased in October, 1984 and soon thereafter the petitioner started the construction of sheds and also the administrative complex. It is in March, 1985 that department issued the first notice requiring the petitioner to stop the construction as the same was in contravention of the provisions of the Act. Ignoring all such notices, the petitioner completed the construction which contravenes the building byelaws and never bothered to obtain permission of the competent authority for the proposed construction. Since the petitioner raised the construction inspite of various notices issued by the department pointing out various irregularities, it obviously did so at their own risk and have to suffer for the same. We, thus, in the circumstances of the case, find no fault with the order of the department refusing to regularise the unauthorised construction clearly put up in defiance of the authority of law.

Counsel for the petitioner then halfheartedly referred to the provision to Section 6 of the Act whereunder prior permission of the Director is not necessary if the building is used or is to be said for agricultural purposes subservient to agriculture. This contention has only to be noticed to be rejected. Sheds were constructed on the land and a unit manufacturing pharmaceuticals has been set up therein. The petitioner is manufacturing ''ampules'' which are used as injectables for cattle and poultry birds. We fail to understand how it could be said that the building was being used for agricultural purposes or purposes subservient to agriculture. What has been undertaken by the petitioner firm is pure and simple a manufacturing activity wholly commercial in nature and even if the product manufactured by the petitioner firm is used by those who are carrying on agriculture or any activity subservient thereto, it will not convert the activity subservient thereto, it will not convert the activity of the petitioner into agricultural one within the meaning of the proviso. Moreover, the proviso does not do away with the requirement of the construction of the building being in conformity with the building byelase of the department.

Lastly, it was urged that an appeal was competent against the order dated 2.4.1991 passed by the Director declining the request of the petitioner for compounding the unauthorised construction and that the Commissioner erred in dismissing the same as not maintainable. The provision for an appeal is contained in Section 10 of the Act. According to this section, any person aggrieved or affected by an order of the Director under subsection (2) of Section 8 granting permission or licence or refusing permission or licence, may prefer an appeal to the Commissioner of the Division in which the controlled area is situated. An appeal would have been competent if the order passed by the Director was anyone of those provided for in Section 8, fo the Act Section 8 in turn requires that a person who is desirous of obtaining a 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 and subsection (2) thereof requires that the Director after making such enquiry as he considers necessary shall pass an order either granting the permission or licenser or refusing to grant such permission or licence. The order passed by the Director declining to compound the unauthorised construction raised by the petitioner is not the type of an order contemplated by sub section (2) of Section 8 and thus, no appeal lay to the Commissioner under Section 10 of the Act. The Commissioner was, therefore, justified in dismissing the same as being not maintainable. The matter of compounding, if at all, could possibly fall within the domain of the Director under Section 14 of the Act and no appeal is provided against an order passed under that provision. However, we express no opinion in this regard as the matter was not canvassed before us.

In the result, we find no merit in this petition and dismiss the same in limine.