JUDGMENT Ravi S. Dhavan, J.
1. This is a case from Dehradun. The matter relates to certain constructions which have been treated unauthorised by the Mussoorie Dehradun Development Authority and consequently ordered for demolition. The first order which has been impugned is dated 24 November, 1986, Annexure-1 to the Writ Petition, In proceedings No. 2 of 1984, 571 of 1986, in the matter of Sardar Rajendra Singh, 49/2, Nari Shilp Mandir Marg, Dehradun. The petitioner filed an appeal against this order before the Commissioner, Dehradun, acting as the appellate authority of the Mussoorie Dehradun Development Authority. The appeal was numbered as R.B.O. No. 6 of 1986-87. The appellate decision is dated 9 November, 1987, Annexure-6 to the writ petition. The petitioner seeks a writ of certiorari to impugn these decisions and desires that they be quashed and submits that there is no illegality in his action of the constructions which he has made having been declared as unauthorised and ordered for demolition by the authorities, aforesaid.
2. The Court has heard at length, learned counsel for the petitioner, Mr. Rajesh Tandon, and Mr. Ashok Mohiley, appearing on behalf of the Mussoories Dehradun Development Authority, the respondents.
3. Of facts on which there is no issue is that next to the Nari Shilp Mandir Chakrata Road, in Dehradun, certain constructions were in progress by the petitioner and amidst activities of constructions, he received a notice that he must desist from making the constructions, for which he has taken no permission of the Mussoorie Dehradun Development Authority and whatever he has constructed must be demolished. It was indicated to the petitioner that these constructions are within the development zone are further within the spectrum of the width of road widening. At the time when the petitioner was putting a concrete slab as the roof, for the purpose of putting a first floor above the ground floor he was cautioned to stop the constructions. But, he continued. These are facts on record in the impugned order, dated 24 November, 1986.
4. The aspects on which submissions have been submitted before the Court on behalf of the petitioner are (a) that the proceedings whether before the Prescribed Authority under the U.P. Urban Planning and Development Act, 1973 are without notice, (b) the constructions are not unauthorised and (c) submitted as an alternative, that in case the two submissions made are not acceptable, then, the constructions be considered for compounding now.
5. A side issue was also raised that the Municipal number of the shops made, on which there is an issue whether they were unauthorised or not, has been changed and thus, the matter be looked afresh by the appellate authority.
6. Upon hearing arguments in detail and having perused every aspect of the record, the Court is of the opinion that this is not a matter in which the Court ought to interfere by a writ of certiorari as the Court does not find any error in the impugned orders.
7. The aspect of the change of the municipal number does not make any difference as the petitioner was conscious of the buildings or the shops in reference to which he was embroiled in proceedings before the authorities on which he admittedly received notices, but avoided the proceedings despite notices being affixed on the premises, leaving service of notice on the petitioner as sufficient. The change of number is a matter relating to rateable taxes which the petitioner may have to pay and this has nothing to do with any matter whether the shops are authorised or unauthorised.
8. The submission of the petitioner that he was without notice is unfounded. The petitioner was always conscious of the fact that there are proceedings which were engaging the attention of the authorities under the Act, aforesaid, and the subject matter of these proceedings were unauthorised shops which the petitioner had constructed of which he had due notice and a restraint order not to proceed. Paragraph 19 and 20 of the counter-affidavit of the Mussoorie Dehradun Development Authority draws the attention of the Court that of the notice which had been sent by the competent authority to the petitioner regarding his activity of unauthorised constructions he had received the notice and even sought fifteen days time for submitting his objections. The petitioner, thus, entered the proceedings and was conscious of the nature and the merits of the proceedings and had sought time for objections whatever they way be. As a consequence of having received the notice the petitioner even submitted his objections dated 22 September, 1989. This aspect of the matter otherwise referred to as submissions in the counter-affidavit finds mention in the order of the competent authority dated 24 November, 1986. This aspect has also been referred to by the appellate authority, that is, the Commissioner, Dehradun in the appeal of the petitioner. This was Appeal No. 6 of 1986-87. The appellate authority states that in pursuance of the notice dated 17 September, 1980, the appellant filed objections dated 27 September, 1980 and his objections are on record and the appellate authority further placed on record that the matter relating to the receipt of the notices and the petitioner taking time to file objections and, thereafter, placing his objections on record have not been denied, but accepted. The objections, on record of the appellate authority, the petitioner has not appended to the record of the writ petition. In the net result, there is no issue on the aspect that the petitioner did not have notice of the proceedings in the matter relating to the constructions of shops on his plot next to the Nari Shilp Mandir Marg, Chakrata Road, Dehradun, of which he had been cautioned by the authorities to desist from constructing them. Also at the time when the petitioner was putting up a concrete slab as a roof to take the first floor he was required to stop the constructions, which the petitioner did not, but continued and did so at his risk.
9. The next submission is as was contended before the authorities below and now before this Court that the constructions are with permission and had been authorised. The petitioner was given an opportunity by the appellate authority to place on record should he have received the sanction on the constructions which he was venturing to complete, in reference to the proceedings under the U.P. Urban Planning and Development Act, 1973. The appellate authority records that barring producing a photo copy nothing has been produced before it that the map had the sanction on the constructions as they were being made and no certified copy was produced before the appellate authority before undertaking the constructions which were in progress. In the circumstances, the appellate authority has recorded;
^^Hkou ekufp= dh QksVks izfr izLrqr dh gS A bl ekufp= esa dgha ij Hkh ;g mYys[k ugha vk;k gS fd D;k bl ekufp= dks rRdkyhu l{ke izkf/kdkjh us LohÑr fd;k Fkk A mldh ewy izfrfyfiHkh vihydrkZ us izLrqr ugha dh A**
10. It may be mentioned here and on this there is no issue that the constructions of which the petitioner had received notice from the authorities under the Act, aforesaid, were the constructions which were being made in the place of old constructions. The issue, thus, is not whether the petitioner may have had any permission of any other authority because even if that permission was available which permission the petitioner was not successful in placing before the authorities below, it was in reference to the old constructions. The Mussoorie Dehradun Development Authority was in operation and functioning and was the only authority to monitor the sanction of constructions or regulate urban building discipline within the area under its control. Even if the petitioner's argument is accepted, it will not hold good for the constructions which he had started a new of seven shops on the ground floor and seven shops above as the first floor, became the subject matter of a notice sent to him in 1980 on which he sought time and even filed objections.
11. Of the balance of the record which remains the only aspect which now remains is whether the petitioner had applied to the Mussoorie Dehradun Development Authority before starting any constructions whatsoever to receive sanction on whatever the intended to construct or, for that matter, reconstruct. The fact that the petitioner was cautioned not to proceed, but be continued to proceed is bad in itself. The fact that the petitioner continued to complete the constructions after he was put under notice and today time for filing objections was violating the law.
12. The appellate authority has recorded that the petitioner had been warned to stop the constructions, but he did not. The appellate authority, on this aspect records. ^^vihydrkZ dks fuekZ.k dks cUn djus dk Hkh uksfVl fn;k Fkk ijUrq mlus fuekZ.k dks pkyw j[kk** Thereafter when the petitioner was proceeding with the constructions of the first floor he was cautioned and directed to stop, but the petitioner continued to construct. On this the appellate authority record:
^^vihydrkZ us nwljh eafty Hkh cukuk 'kq: fd;k**
13. The record now stands with very aspect of the issue which the competent authority has indicated in the order of 24 November, 1986. The petitioner was constructing shops next to his boundary wall in which it was indicated that these constructions were within the eclipse of road widening. What the authorities were attempting to tell the petitioner was that he was violating the law which regulates (a) set backs and (b) street allignment. Simply as it had been put to the petitioner, what the petitioner was doing was taking the law in his hand and attempting by temptation to make capital of his property in a regulated area where, by law, no constructions could be permitted, nor sanctioned. The Court refers to this aspect as, the lost and the alternative submission is that compounding may be considered by the authorities below of the constructions which are in issue. The moment compounding is suggested by a person who has made a construction without permission, then the logical consequence is that the constructions are unauthorised. This aspect of making unauthorised constructions is admitted. Compounding cannot be had for the asking as easily as those who construct unauthorisedly ask for it. Compounding simply means that the permission, otherwise, could be granted, but was made without authorisation. Then, to condone the act of constructing without permission, a fine is paid to regularise a construction, commonly known as a compounding fee. But, what the law prohibits no authority can sanction and in urban planning law and discipline, an illegality which is incurable can never be compounded, thus the question of compounding does not arise. [See AIR 1974 SC 2144, K.R. Shenoy v. Udipi Municipality].
14. In the present case what the petitioner has constructed seven shops on the ground floor and seven shops on the first floor. The map which the petitioner has appended to the writ petition as Annexure-2, indicates the shops running parallel to the Dehradun Chakrata Road and also next to the boundary well of the petitioner. From what the petitioner contends, the shops have been made right next to the road. Learned counsel for the Mussoorie Dehradun Development Authority has placed before the Court the Mussoorie Dehradun Development Authority Bye-Laws and draws the attention of the Court to Chapter V of the bye-laws for building operations and particularly of other buildings mentioned in paragraphs 5.5.2 to 5.8.1, which provide for set backs for buildings. Whatever may be the dimension of the set back, it is provided to regulate and protect street allignment. Setback from a street protects street allignment and to protect the road including the edge of the road and the sidewalk (road pattri). This is a discipline in urban planning. It is left for posterity. Should the occasion arise that a town or a city may be under pressure of traffic, a road may need to be widened. Violation of a setback will hamper with the development plan, on the public interest, for widening a road. The order of the impugned authority dated 24 November, 19S6, clearly says that the petitioner has placed his shops right next to the road. The map which the petitioner has placed before the Court, as it is the petitioner's document, fortifies the apprehension of the competent authority that the petitioner has violated the setbacks provided. The question of compounding these illegal constructions, admittedly made unauthorisedly, does not arise.
15. In reality what has happened is that the petitioner has violated the regulations of setbacks and has opened shops without space for parking of cycles, scooters and cars and the crowd in front of the shops, which the petitioner has made, will on to the streets. This cannot be permitted. The Court has already reflected on these issues of violation of street alignments and setbacks in two decisions of a Division Bench in re. State of U.P. and Ors. v. Sri Om Prakash Tyagi and Ors. (Writ Petition No. 9098 of 1985, decided on 12-8-1996) and in re. Smt. Bimla Devi and Ors. v. Allahabad Development Authority and Ors. (Writ Petition No. 5470 of 1985, decided on November 6, 1996).
16. Then the Court views such matters differently. With harely three years left for the twentieth century congestion of town and cities is an aspect which has met with concern of the Supreme Court, also, as these were not laid put to be choked so that the free flowing traffic is obstructed by violators of the law who either occupy the side walks of the streets or, for that matter, violate the area which is to be left by law as a set back from the line of the street allignment. The petitioner views it as a private right. The Court view it as a bad situation but in public law. An urban habitat is to be regulated strictly. If everyone were to do what the petitioner has done it will be the beginning of the end of planned towns and cities. For the very purpose for which a town or a city is laid would be negated if encroachments or constructions on streets and roads were condoned. Roads and streets are the arteries of a city. They have to be left free and as urbanisation increases this discipline has to be met with strictness.
17. The Court does not find any error in the order of the authorities which the petitioner desires to be quashed. In fact, the petitioner has violated every law in making the construction without permission and has further violated the building regulations of the Mussoorie Dehradun Development Authority. The sooner the petitioner conform to the impugned orders dated 24-11-1986 and 9-11-1987 the better it would be. In the circumstances the respondents, that is, the Mussoorie Dehradun Development Authority may give six months time, from today, to the petitioner to make arrangement to have the constructions vacated by his tenants. This may be an adequate opportunity so that there is no hardship to those who have occupied these shops. Thereafter, another three months may be given to the petitioner to remove these shops failing which the Mussoorie Dehradun Development Authority would be within its rights to demolish these structures, should the petitioner not pay heed to the indulgence given to him.
18. The petition is dismissed with costs.