CWP No.15528 of 2005(O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No.15528 of 2005(O&M) Date of decision: 18.3.2011 Didar Singh and others ......Petitioner(s) Versus Union Territory, Chandigarh and others ......Respondent(s) (CWP No.4135 of 2005)(O&M) Jasbir Singh and others ......Petitioner(s) Versus U. T Chandigarh and others ......Respondents (CWP No.11127 of 2006)(O&M) Hardyal Singh Johl and others ......Petitioner(s) Versus Union of India and others ......Respondents (CWP No.18024 of 2006)O&M) Mohan Singh ......Petitioner(s) Versus Union of India and others ......Respondents (CWP No.10464 of 2007)(O&M) Kanwaldeep Singh Phoolka etc. ......Petitioner(s) Versus U. T of Chandigarh etc. ......Respondents (CWP No.10465 of 2007)(O&M) Meet Partap Singh ......Petitioner(s) Versus U. T of Chandigarh etc. ......Respondents (CWP No.11117 of 2007)(O&M) Balwinder Singh ......Petitioner(s) CWP No.15528 of 2005(O&M) 2 Versus U.T of Chandigarh and another ......Respondent(s) (CWP No.11407 of 2007)(O&M) Krishna Devi ......Petitioner(s) Versus Union Territory, Chandigarh and another ......Respondents (CWP No.10137 of 2007)(O&M) S.S. Sandhu ......Petitioner(s) Versus U.T of Chandigarh and another ......Respondents (CWP No.10645 of 2007)(O&M) Ajay Johl ......Petitioner(s) Versus U.T of Chandigarh and another ......Respondent(s) (CWP No.10177 of 2007)(O&M) Hardyal Singh Johl and others ......Petitioner(s) Versus U.T of Chandigarh and another ......Respondent(s) (CWP No.11249 of 2007)(O&M) Kuldip Singh Kahlon ......Petitioner(s) Versus U.T of Chandigarh and others ......Respondent(s) (CWP No.9750 of 2007)(O&M) Iqbal Singh ......Petitioner(s) Versus U.T of Chandigarh ......Respondent(s) CWP No.15528 of 2005(O&M) 3 (CWP No.10892 of 2007)(O&M) Bhupinder Pal Kaur ......Petitioner(s) Versus U.T of Chandigarh and another ......Respondents (CWP No.10073 of 2007)(O&M) Paramjit Kaur ......Petitioner(s) Versus U.T of Chandigarh etc. ......Respondents (CWP No.10296 of 2007)(O&M) Surinder Singh Brar and another ......Petitioner(s) Versus U.T of Chandigarh and another ......Respondent(s) (CWP No.10309 of 2007)(O&M) Vijay Kumar Garg and others ......Petitioner(s) Versus U. T Chandigarh etc. ......Respondents (CWP No.10353 of 2007)(O&M) Ajay Sethi ......Petitioner(s) Versus U. T Chandigarh ......Respondents (CWP No.10461 of 2007)(O&M) Kultar Singh Nat ......Petitioner(s) Versus U. T of Chandigarh etc. ......Respondents (CWP No.10462 of 2007)(O&M) Preetinder Singh and another ......Petitioner(s) CWP No.15528 of 2005(O&M) 4 Versus U.T of Chandigarh etc. ......Respondent(s) (CWP No.10463 of 2007)(O&M) Darshan Singh ......Petitioner(s) Versus U.T of Chandigarh etc. ......Respondents CORAM:- HON'BLE MR.JUSTICE JASBIR SINGH HON'BLE MR.JUSTICE RAKESH KUMAR GARG * * * Present: Mr. G.S. Grewal, Senior Advocate with Ms.Tanisha Peshawaria, Advocate. Mr. Ashok Aggarwal, Sr. Advocate with Mr. Jaskirat Singh Sindhu, Advocate. Mr. Puneet Bali, Advocate and Mr. Shaurya Sharma, Advocate, Mr. Ashwani Talwar, Advocate, Mr. Ashwani K. Chopra, Sr. Advocate with Ms. Garima Advocate, Mr. Arun Palli, Sr. Advocate with Mr. Tarun Vir Singh Lehal, Advocate, Mr. Deepak Sibal, Advocate, Mr. M.L.Sarin, Sr. Advocate with Mr. Hemant Sarin, Advocate, for the petitioner(s). Mr. K.K. Gupta, Additional Standing counsel for U.T. Chandigarh and Chandigarh Housing Board. Ms. Lisa Gill, Advocate and Mr. Vishal Sodhi, Advocate, Standing counsel for U.T. Chandigarh. Mr. Akshay Bhan, Advocate, Dr. Urmila Gupta, Mrs. Kamla Malik, Advocate and Mr. Ashwani Bansal, Advocate for Union of India. Rakesh Kumar Garg, J. This judgment shall dispose of a bunch of 21 writ petitions i.e. CWP Nos.15528 of 2005, 4135 of 2005, 11127, 18024 of 2006, 10464, 10465, 11117, 11407, 10137, 10645, 10177, 11249, 9750, 10892, 10073, 10296, 10309, 10353, 10461, 10462 and 10463 of 2007,. These writ petitions were initially being heard along with CWP CWP No.15528 of 2005(O&M) 5 No.5065 of 2007 and other connected matters in which acquisition of land for development of Phase-II and Phase-III of Chandigarh Technology Park in the Periphery of Chandigarh is under challenge. However, during the course of hearing, it was found that in these writ petitions, there is no challenge to the acquisition of land by the respondent-Administration but a challenge has been laid to the provisions of the “Punjab New Capital (Periphery) Control Act, 1952 (hereinafter called the “Periphery Act) and declaring the same as ultra vires. In civil writ petitions i.e. CWP Nos.10464, 10465, 11117, 11407, 10137, 10645, 10177, 11249, 9750, 10892, 10073, 10296, 10309, 10353, 10461, 10462, 10463 of 2007, even no challenge has been laid to the vires of the aforesaid Act and only a prayer has been made for quashing of the notices issued by the Chandigarh Administration under Section 12(2) of the Periphery Act, 1952 asking the petitioners to demolish the illegal construction made by them. As per the averments, the erstwhile State of Punjab, after losing its Capital at Lahore to Pakistan, proceeded to develop its new Capital at Chandigarh. A committee was appointed by the Punjab Government for the construction of its own capital city which after carefully examining all the factors selected the present site. Thereafter, a master plan of the city was prepared by an American firm. The Committee also appointed an eminent French planner and Architect, Le Corbusier. The city was to be built up in two phases. The first phase covered 9,000 acres of land in the shape of 29 distinct sectors which was increased upto 46 number of sectors; the remaining to be covered in second phase. To translate this concept into a reality, a specific enactment in the form of the Capital of Punjab (Development and Regulation) Act, 1952 (hereinafter called the 'Capital Act) was enacted. Another specific enactment in the form of Punjab New Capital (Periphery) Control Act, 1952 was also CWP No.15528 of 2005(O&M) 6 enacted. The aims and objects of the Periphery Act reads as follows:- “The Punjab Government are constructing a New Capital named Chandigarh. The Master Plan providing for the future extension of the capital will extend over a much greater area than the area acquired so far the construction of the first phase of the Capital. To ensure healthy and planned development of the new city it is necessary to prevent growth of slums and ramshackle construction of the land lying on the Periphery of the new city. To achieve this object, it is necessary to have legal authority to regulate the use of the said land for purposes other than the purposes for which it is used at present.” The aforesaid Periphery Act came into force on 12.1.1953 and the same was published in the Government Gazette on 16.1.1953. As per provisions, the Administration declared land within a limit of 5 miles from the outer limits of Capital site of Chandigarh as notified under the Capital Act. Later on the said limits was extended upto 10 miles. as “Controlled Area' for the purpose of keeping it reserve for future extension of the City Chandigarh. In view of the provisions of the aforesaid Act, the petitioners were entitled to use the land for the purpose of agriculture and its subservient use with the permission of the Competent Authority until the proper planning for extension of city Chandigarh was made. The relevant provisions of the Periphery Act reads as follows:- Section 1 Short title and extend and commencement: (1) This Act may be called the Punjab New Capital (Periphery) Control Act, 1952. [(2) It extends to the area adjacent to and within a distance of five miles on all sides from the outer boundary of the land acquired for the Capital of the State at Chandigarh. CWP No.15528 of 2005(O&M) 7 (3) It shall come into force at once.” Section 3 Declaration of controlled Area: (1) The State Government may by notification in the Official Gazette declare the whole or any part of the area to which this Act extends to be a controlled area for the purposes of this Act. (2) Not less than three months before making a declaration under sub-section (1), the State Government shall cause to be published in the Official Gazette, and in at least two newspapers printed in a language other than English, a notification stating that it proposed to make such a declaration and copies of the notification or of the substance thereof shall be published by the Deputy Commissioner in such manner as may be prescribed at his office and in the area desired to be controlled.” Section 5 Restriction in a controlled area. “Except as provided hereinafter, no person shall erect or re-erect any building or make or extend any excavation, or lay out any means of access to a road, in the controlled area, save in accordance with the plans and restrictions and with the previous permission of the Deputy Commissioner in writing.” Section 6: (1) Every person desiring to obtain the Permission A referred to in section 5 shall make an application in writing to the Deputy Commissioner in such form and containing such information in respect of the building, CWP No.15528 of 2005(O&M) 8 excavation or means of access to which the application relates as may be prescribed. (2) On receipt of such application the Deputy Commissioner, after making such enquiry as he considers necessary, shall, by order in writing, either- a. grant the permission, subject to such conditions, if any, as may be specified in the order; or b. refuse to grant such permission. (3) When the Deputy Commissioner grants permission subject to conditions, or refuses to grant permission under sub-section (2), the conditions imposed or the grounds of refusal shall be such as are reasonable having regard to the circumstances of each case and the interest of tile general public. [“(4) The Deputy Commissioner shall not refuse permission to the erection or re-erection of a building if such building is required for purposes subservient to Agriculture: Provided that where the Deputy Commissioner permits the erection or re-erection of a building under this sub- section, such building shall be erected or, as the case may be, re-erected only in accordance with such conditions as may be prescribed.”] (5) The Deputy Commissioner shall not refuse permission to the erection or re-erection of a building which was in existence on the date on which the notification under sub-section (2) of section 3 was made, nor shall he impose any condition in respect of such erection or re-erection unless he is satisfied that there is CWP No.15528 of 2005(O&M) 9 a probability that the building will be used for a purpose or is designed in a manner other than that for which-it was used or designed on the date on which the said declaration was made. (6) If at the expiration of a period of three months after an application under sub-section (1) has been made to the Deputy Commissioner, no order in writing has been passed by the Deputy Commissioner, permission shall, without prejudice to the restriction signified in-the plans under section 4 be deemed to have been given without the imposition of any conditions. (7) The Deputy Commissioner shall maintain a register as may be prescribed with sufficient particulars of all cases in which permission is given or deemed to have been given or refused by him under this section, and the said register shall be available for inspection without charge by all persons interested and such persons shall be entitled to take extracts therefrom.” Section 10 Savings: “Nothing in this Act shall affect the power of Government or any other authority to acquire land or to impose restrictions upon the use and development of land comprised in the controlled area under any other law for the time being in force, or to permit the settlement of a claim arising out of the exercise of powers under this Act by mutual agreement.” Section 11 Prohibition on use of land: “(1) No land within a controlled area shall, except with CWP No.15528 of 2005(O&M) 10 the permission of the State Government, be used for purposes other than those for which it was used on the date of notification under sub-section (2) of section 3; and no such land shall be used for the purposes of a charcoal-kiln, pottery-kiln, lime-kiln, brickfield or brick- kiln except under, and in accordance with the conditions of a licence from the Deputy Commissioner on payment of such fees and under such conditions as may be prescribed (2) The renewal of such licence may be made annually on payment of such fees as may be prescribed. (3) No person shall be entitled to claim compensation for any injury, damage or loss caused or alleged to have been caused by the refusal to issue or renew a licence, except in case where such kiln was in existence at the time of the notification under sub-section (2) of Section 3 and in which case an application shall lie to the arbitrator within three months of the order of refusal in the manner provided in Section 9. 15. Exemption.- Nothing in this Ac t shall apply to - [(a) any building erected or re-erected for bonafide personal residential purposes and not above the height of eleven meters or for purposes subservient to agriculture in the abadi area of any village as defined in the revenue records and the area adjacent to the abadi area of any village which the Government identifies for village expansion through a notification, published in the Official Gazette, specifically to this effect subject to the CWP No.15528 of 2005(O&M) 11 condition that this area shall not exceed sixty per cent of the existing village abadi area: Provided that no such building shall be used for commercial purposes;] (b) the erection or re-erection of a place of worship or a tomb or cenotaph or of a wall enclosing a grave-yard, place of worship, cenotaph or samadhi on land which is, at the time of the notification [under sub-section (1) of section 3], occupied by or for the purposes of such place of worship, tomb, samadhi, cenotaph or graveyard; (c) Excavations (including wells) or other operations made in the ordinary course of agriculture; (d) the construction of an unmettaled road intended to give access to land solely for agricultural purposes [;] [(e) Any area falling within the limits of local authority.]” In pursuance to the aforesaid provisions, the concerned Authorities vide notification dated 5.9.1953 (P-2) declared an area as per the Schedules as controlled area including the land in question. The State of Punjab was reorganised on November 1, 1966 into the States of Punjab, Haryana, Union Territory, Chandigarh and Himachal Pradesh, as per the provisions of the Punjab Reorganization Act, 1966 ( hereinafter referred to as 'the Reorganization Act'). Sections 87, 88 and 89 of the aforesaid Act which are relevant read as follows: “87. Power to extend enactments to Chandigarh.- The Central Government may, by notification in the Official Gazette, extend with such restrictions or modifications as it thinks fit, to the Union Territory of CWP No.15528 of 2005(O&M) 12 Chandigarh any enactment which is in force in a State at the date of the notification. 88. Territorial extent of laws.- The provisions of Part II shall not be deemed to have effected any change in the territories to which any law in force immediately before the appointed day extends or applies, and territorial references in any such law to the State of Punjab shall, until otherwise provided by a competent Legislature or other competent authority, be construed as meaning the territories within that State immediately before the appointed day. 89. Power to adapt laws.- For the purpose of facilitating the application in relation to the State of Punjab or Haryana or to the Union Territory of Himachal Pradesh or Chandigarh of any law made before the appointed day, the appropriate Government may, before the expiration of two years from that day, by order, make such adaptations and modifications of the law, whether by way of repeal or amendment, as may be necessary or expedient, and thereupon every such law shall have effect subject to the adaptations and modifications so made until altered, repealed or amended by a competent Legislature or other competent authority. Explanation.- In this section, the expression “appropriate Government” mean- (a) as respects any law relating to a matter enumerated in the Union List, the Central Government; and (b) as respects any other law, - (i) in its application to a State, the State Government, and (ii) in its application to a Union Territory, the Central Government. The Periphery Act was also adapted by the Central Government for applying the same to the Union Territory of Chandigarh by notifying “The Punjab Re-organization (Chandigarh) (Adaption of laws CWP No.15528 of 2005(O&M) 13 on States and Concurrent subjects) Order, 1968 which came into force vide Gazette Notification dated 30.10.1968 which was republished on 20.11.1968 and came into force w.e.f. 1.11.1966 and by virtue of the said adaption, the provisions of the Periphery Act were made applicable in the Union Territory of Chandigarh. The relevant parts of the said notification is as under:- G.S.R 1945.- Whereas by Section 89 of the Punjab Reorganisation Act, 1966 (31 of 1966), the Central Government is empowered, by Order, to make such adaptations and modifications of any law made before the 1st day of November, 1966, relating to a matter in List II or List III in the Seventh Schedule to the Constitution, as may be necessary or expedient for the purpose of facilitating the application of such law in relation to the Union Territory of Chandigarh; Now, therefore, in exercise of the powers conferred by the said section 89, the Central Government hereby makes the following Order, namely:- 1.(1) This Order may be called the Punjab Reorganisation (Chandigarh) (Adaptation of Laws on State and Concurrent Subjects) Order, 1968. (2) It shall be deemed to have come into force on the 1st day of November, 1966. 2. (1) In this Order,- (a) “appointed day” means the 1st day of November, 1966; (b) “existing law” means any State Act or Provincial Act in force immediately before the appointed day in the whole or any part of the territories now comprised in the Union Territory of Chandigarh and includes any rule, order, bye-law, scheme, notification or other instrument made under such State Act or Provincial Act, but does not include any law relating to a CWP No.15528 of 2005(O&M) 14 matter enumerated in the Union List; (c ) “law” has the same meaning as in clause (g) of section 2 of the Punjab Reorganisation Act, 1966. (2) The General Clauses Act, 1897, applies for the interpretation of this Order as it applies for the interpretation of a Central Act. 3. As from the appointed day, the existing laws and the Central Acts mentioned in the Schedule to this Order shall, until altered, repealed or amended by a competent Legislature or other competent authority, have effect subject to the adaptations and modifications directed by the Schedule or, if it is so directed, shall stand repealed. 4. Whenever an expression mentioned in column 1 of the Table hereunder printed, occurs (otherwise than in a title or preamble or in a citation or description of an enactment) in an existing law, whether an Act mentioned in the Schedule to this Order or not, then, in the application of that law to the Union Territory of Chandigarh, or as the case may be, to any part thereof, unless that expression is by this Order expressly directed to be otherwise adapted or modified or to be omitted, or unless the context otherwise requires, there shall be substituted therefor the expression set opposite to it in column 2 of the said Table, and there shall also be made in any sentence in which that expression occurs, such consequential amendments as the rules of grammar may require. TABLE _____________________________________________ 1 2 _____________________________________________ (1) Punjab State; State of Punjab; whole of Punjab State; whole of the State of Punjab Union Territory of Chandigarh. CWP No.15528 of 2005(O&M) 15 or Punjab where it refers to the State of Punjab. (2) Punjab Government; Government of Punjab; Government of the State of Punjab; Central Government. State Government; State Government of Punjab. (3) High Court of Punjab; Punjab High Court. High Court of Punjab and Haryana. 5. Where this Order requires that in any specified law, or in any section or other portion of such law, certain words shall be substituted for certain other words, or that certain words shall be omitted, that substitution or omission, as the case may be, shall, except where it is otherwise expressly provided, be made wherever the words referred to occur in that law or, as the case may be, in that section or portion. 6. The provision of this Order which adapt or modify any law so as to alter the manner in which, the authority by which, or the law under, or in accordance with, which, any powers are exercisable, shall not render invalid any notification, order, licence, permission, award, commitment, attachment, bye-law, rule or regulation, duly made or issued, or anything duly done, before the appointed day; and any such notification, order, licence, permission, award, commitment, attachment, bye-law, rule, regulation or thing may be revoked, varied or un- done in like manner, to the like extent and in the like circumstances as if it had been made, issued or done after the commencement of this Order by the competent authority and under and in accordance with the provisions then applicable to such a case.” THE SCHEDULE x x x x x THE PUNJAB NEW CAPITAL (PERIPHERY) CONTROL ACT, 1952 (PUNJAB ACT 1 OF 1953) CWP No.15528 of 2005(O&M) 16 Section 1.- For sub-section (2), substitute - “(2) It extends to the whole of the Union territory of Chandigarh except the areas to which the Capital of Punjab (Development and Regulation) Act, 1952 (27 of 1952), extends.” The challenge in these writ petitions to the vires of the Periphery Act has been laid on the following grounds:- (1) The adoption of the Act is not legal and valid as the said Act was not adopted within two years of the formation of the Union Territory of Chandigarh with effect from 1.11.1966 and no such like Act was enacted by the Parliament. The Periphery Act was framed in 1952 to control and regulate the Periphery of the new proposed capital of State of Punjab i.e Chandigarh but in the year 1966, the entire territory of the Chandigarh and some rural area were declared as Union Territory and since that time, the Union Territory was working under the control of the Central Government and therefore, the specific purpose, object and nature of the Periphery Act came to an end in the year 1966 when Chandigarh was declared Union Territory. (2) The Parliament did not enact any law relating to the Periphery nor any amendments were ever made in the Periphery Act to make it effective and applicable to the Union Territory formed after reorganization and therefore, the respondents could not apply the provisions of the aforesaid Act in the Union Territory, Chandigarh. (3) Even if the Periphery Act has been applied, the Chandigarh Administration/Central Government has failed to declare any controlled area as envisaged under Section 3 of the Act and therefore, the action of the respondents applying the aforesaid law CWP No.15528 of 2005(O&M) 17 was illegal. It is the further case of the petitioners that notification dated 5.9.1953 was not a valid notification to declare the controlled area for the Union Territory of Chandigarh. (4) The Act has lost its significance due to changed circumstances and is liable to be declared ultra vires of the Constitution of India. (5) The Act is in violation of Article 300-A of the Constitution of India and interpretation of fundamental rights of the petitioners as provided under Articles 14, 19 and 21 of the Constitution. Some additional points as raised by Sh. Puneet Bali, Advocate are also noticed which are as under:- (6) The provisions of the Act are discriminatory which operate against the owners and in favour of the State and user. (7) The act has been applied by the U.T. Administration itself in violation of its provisions. To support the aforesaid argument, learned counsel for the petitioners have vehemently argued that the purpose that was sought to be achieved by enacting such a legislation has been defeated. The said Act was enacted in the year 1952 to cater to a growth of population upto 5 lakhs which in the present scenario is impossible to be applied. The changed circumstances have eroded