JUDGMENT M. Katju, J.
1. This petition furnishes a typical instance of a widespread malady which has infected our Society and the body politic, namely the belief in the rich and mighty of our country that they arc above the law.
2. By means of this writ petition the petitioners have prayed for a mandamus directing the respondents not to demolish the houses in Jangjeet Nagar, Agra or the houses of any individual member of the petitioner Society and to regularise the colony of the petitioners on payment of compounding fee.
3. The petitioner No. 1 is a Society registered under the Societies Registration Act. It purchased land from agriculturists, which is recorded as abadi land. On that land the Society members have constructed residential houses and the colony is known as Jangjeet Nagar. The Society has 200 members, all of whom have been allotted plots in the colony. It is alleged in Paragraph 3 of the petition that out of them 100 have constructed full-fledged houses and are residing therein and the remaining have raised boundary walls with gates. It is alleged that it is a post locality inhabited by Advocates, Engineers, Army Officers, Bank Managers, Government Employees etc., with Public Schools etc. The petitioner Society has developed the land as stated in Paragraph 6 of the petition.
4. In Paragraph 7 of the writ petition it is alleged that the respondents are harassing the colonizers and they arc trying to extract illegal money from them or their members. They arc terrorizing the inhabitants and arc threatening to demolish the houses. The officials of the Agra Development Authority come with Police and creating terror in the locality. Aggrieved this writ petition has been filed.
5. A counter-affidavit has been filed and we have perused the same.
6. In Paragraph 4 of the counter-affidavit it is denied that the land in question was recorded as abadi. In Paragraph 5 of the counter-affidavit it is stated that the petitioners have not disclosed the names of the alleged members of the Society nor they have filed any documents to support their allegations. It is stated that on the spot some houses ranging between 10 to 12 have been erected in a haphazard manner, but such constructions arc wholly unauthorized. There is no sanctioned lay out plan in favour of such persons and as such these constructions arc illegal.
7. In Paragraphs 9, 14 and 15 of the counter-affidavit it is stated that the colony is situated in an area ear marked as green belt in the master plan of Agra. Hence, the question of sanctioning of any colony or compounding the unlawful constructions of the petitioner does not arise. In Paragraph 16 it is stated that even the Agra Development Authority is not entitled to convert the user of the land shown in the master plan as green belt as that master plan has been prepared by the Government and the Government alone can change the land user. In Paragraph 17 of the counter-affidavit it has been stated that the land in Shastripuram Colony is not in the green belt area while the land of the colony in question is wholly within the area of green belt as shown in the master plan. Hence, there is no discrimination.
8. In Paragraph 22 of the same it is denied that the people are being terrorised. The action is only being taken in accordance with law. In Paragraph 26 of the same it is stated that the constructions of the petitioners are not only unauthorized, there is also no sanctioned plan for the same. Also they have made constructions in a haphazard manner and have obstructed the development process.
9. In our opinion, there is no merit in this petition. As stated in Paragraphs 9, 14 and 15 of the counter-affidavit, the constructions in question are wholly illegal and unauthorized having been made in the green belt area shown in the master plan. The constructions have been raised without sanction of lay out plan and are hence liable to be demolished. We are of the clear opinion that the members of the petitioner Society have raised constructions on green belt area, which is wholly impermissible, and no lay out or map can be sanctioned on the same. Compounding of any construction made on the green belt is out of the question as it not permissible under the law and all constructions in the green belt area have to be demolished forthwith.
10. In M.I. Builders Pvt. Ltd. v. Radhey Shyam Sahu, 1999 (6) SCC 464, (vide Paragraph 73), the Supreme Court observed :-
"This Court in numerous decisions has held that no consideration should be shown to the builder or any other person where construction is unauthorized. This dicta is now almost bordering the Rule of law. Stress was laid by the appellant and the prospective allottees of the shops to exercise judicial discretion in moulding the relief, Such a discretion cannot be exercised which encourages illegality or perpetuates an illegality. Unauthorised construction, if it is illegal and cannot be compounded, has to be demolished. There is no way out. Judicial discretion cannot be guided by expediency. Courts arc not free from statutory fetters. Justice is to be rendered in accordance with law. Judges are not entitled to exercise discretion wearing the robes of judicial discretion and pass orders based solely on their personal predilections and peculiar dispositions. Judicial discretion wherever it is required to be exercised has to be in accordance with law and set legal principles."
11. As seen from the observation of the Supreme Court, it has specifically been laid down that unauthorised constructions if they are illegal and cannot be compounded have to be demolished.
12. In R A. Agarwal v. Corporation of Calcutta, 1996 (6) SCC 2177, the Supreme Court directed demolition of a multi-storeyed building, which had been constructed in violation of the building Rules. The Supreme Court also granted Police Protection to carry out the compliance order.
13. In K.R. Shenoy v. Udipi Municipality, AIR 1974 SC 2177, the Udipi Municipality had permitted construction of a Cinema House in a residential area. This grant of permission was challenged in the Supreme Court, which held that a Public Authority has no power to contravene the bye-laws made by that authority (vide Paragraph 27). It was further held by the Supreme Court (in Paragraphs 28 and 29) that illegal commercial use by constructing a Cinema House invades the right of the residents.
14. In Munshi Ram v. Union of India, 2000 (7) SCC 22, the Supreme Court has observed (in Paragraph 9):
"The continued unauthorised user would give the paramount lessor the right to re-enter after cancellation of the lease deed. As already noticed, DDA is insisting on stoppage of misuser. The misuser is contrary to the terms of the lease, DDA cannot be directed to permit continued misuser contrary to the terms of the lease on the ground that the zonal development plan of the area has not been framed."
15. In Bangalore Medical Trust v. B.S. Muddappa, 1991 (4) SCC 54, the Supreme Court observed that open space reserved for a public park cannot be converted into a site for hospitals and nursing homes. In Virender Gaur v. State of Haryana, 1995 (2) SCC 577, it was held that Municipal Land earmarked for open space for public use cannot be leased out to a private party.
16. In the present case, the Rules have been totally flouted by the so-called elite of Society. They have illegally made constructions in the green belt area of the master plan. No indulgence can be granted to such so-called sophisticated people who claim to be the cream of Society but flout the law so flagrantly. If these so-called educated people can flout the law in this manner and get away with it what example will be set for others ? Does the law exist in our country only for the poor and not for the rich, influential or powerful?
17. The matter has been dragging on since the year 1993, in view of the interim order of this Court dated 26.4.1993 and we are of the opinion that it should not be allowed to drag on any longer and all constructions in the green belt must be demolished forthwith. The mere fact that there are Advocates, Engineers, Army Officers, Government Employees and Bank Managers living in the said colony is neither here or there. No one is above the law. These so-called educated and affluent persons have committed gross violation of the law by making constructions on the green belt without any sanctioned lay out plan. If this is permitted it will send a wrong signal that the Rules and Regulations exist only on paper and are not to be taken seriously. This Court cannot countenance such a state of affairs. The Rule of Law postulates that everyone however mighty he may be, should be under the law. "Be you ever so high, the law is above you."
18. In this case by making such illegal constructions in the green belt the law has been thrown to the winds. This Court cannot accept this state of affairs. No constructions can be permitted to continue any longer in the green belt and even a map for construction cannot be sanctioned there.
19. The respondents are directed to forthwith demolish all the constructions including those of the members of the petitioner Society in the green belt area of Agra forthwith with an iron hand, without any pick or choose. No leniency must be shown in this matter. The petition is dismissed and interim order is vacated.
20. Let the Registrar General of this Court send copy of this judgment forthwith to the Commissioner, Agra Division, the District Magistrate, Agra and the Vice-Chairman, Agra Development Authority who will ensure strict compliance of this judgment. Copy of this order will be supplied to the learned Standing Counsel free of charge today and he will communicate it to these authorities.