IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. C.W.P. No.8707 of 1999 Date of decision: 01 .7.2009 M/s Travels Star Hotels (India) Limited -----Petitioner Vs. Union of India and others Respondents CWP No.11422 of 1999 Shammi Kapoor ….Petitioner vs. Union of India and others ..Respondents. CWP No.8570 of 2001 M/s Goya Resorts Private Limited -----Petitioner Vs. Union of India and others -----Respondents CWP No.11820 of 1999 The Fifth Milestone Party Gardens Pvt. Limited -----Petitioner Vs. Union of India and others -----Respondents CWP No.11633 of 1999 M/s Panorama Hotels Pvt. Limited -----Petitioner CWP No.8707 of 1999 Vs. Union of India and others -----Respondents CWP No.12017 of 1999 Sukhjeet Singh Sidhu -----Petitioner Vs. Union of India and others -----Respondents CWP No.8572 of 2001 B.S.Mahal Turning Point, Ferozepur Road, Ludhiana -----Petitioner Vs. Union of India and others -----Respondents CWP No.11632 of 1999 M/s Brar Hotels Pvt. Limited -----Petitioner Vs. Union of India and others -----Respondents CORAM:- HON'BLE MR JUSTICE ADARSH KUMAR GOEL HON'BLE MR JUSTICE JITENDRA CHAUHAN Present:- Mr. Sumeet Mahajan, Sr. Advocate with Mr. Amandeep Singh, Advocate for the petitioner in CWP Nos.8707, 11422, 11633 of 1999. Mr. A.K.Chopra, Sr. Advocate with Ms. Rupa Pathania, Advocate for the petitioner in CWP No.8570 of 2001. Mr. RS Mittal, Sr. Advocate with Mr. Atul Gaur, Advocate for the petitioner in CWP Nos.11632 of 1999. 2 CWP No.8707 of 1999 Mr. Hemant Sarin, Advocate for the petitioner in CWP No.11820 of 1999. Mr. J.S.Sidhu, Advocate for the petitioner in CWP No.12017 of 1999. Mr. Varun Gupta, Advocate for the petitioner in CWP No.8572 of 2001. Mr. (Dr.) Anmol Sidhu and Mr. S.K.Sharma, Advocates for Union of India. Adarsh Kumar Goel,J. 1. This order will dispose of CWP Nos.8707, 11422, 11632, 11633, 12017, 11820 of 1999 and 8572 and 8570 of 2001. All the petitions involve identical issues arising out of notification dated 31.1.1983 issued by the Central Government, as a result whereof, restrictions have been imposed on the use of the land of the petitioners in the vicinity of ammunition depot. 2. In CWP No.8707 of 1999, prayer is to quash order dated 18.6.1999, Annexure P.22 passed by the Additional Deputy Commissioner, Ludhiana, acting as Collector under the provisions of the Works of Defence Act, 1903 (for short, ‘the Act’), rejecting objections of the petitioner to the notice for demolition. Other petitions are by and large identical. 3. Vide notification dated January 31, 1983 under section 3 of the Act, the Central Government declared it to be necessary to impose restrictions under section 7(b) of the Act on use and 3 CWP No.8707 of 1999 enjoyment of land in the vicinity of No.1 Ammunition Sub Depot (17 FAD) Baddowal to keep the said land free from buildings and other obstructions. The land described in the Schedule is land within the distance of 1000 yards from the crest of outer perimeter of the works of Defence. The notification is as under:- “In exercise of powers conferred by Section 3 of the Works of Defence Act, 1903 (7 of 1903), the Central Government hereby declares that it is necessary to impose restrictions specified in clause (b) of Section 7 of the said Act upon the use and enjoyment of the land situated in the district of Ludhiana in the State of Punjab described in the Schedule hereto, annexed, being land in the vicinity of No.1 Ammunition Sub Depot, (17 FAD) Baddowal, in order that the said land may be kept free from buildings and other obstructions. 2. A sketch plan of the said land may be inspected in the office of the Deputy Commissioner, Ludhiana. SCHEDULE-E All land comprised in the area lying with a distance of 914.40 metres (1000 yards) from the crest of the outer perimeter of the Works of Defence, namely the 1 Ammunition Sub Depot (1 ASD) (17 Fad) Baddowal, in the State of Punjab.” 4. The petitioner purchased the land in the year 1998. Vide notice dated 29.5.1999, Annexure P.13, the petitioner was required to remove the structures constructed within 1000 yards of 4 CWP No.8707 of 1999 the 17th Field Depot after the notification. Before issuing the said notice, notice dated 1.4.1999 was issued requiring the petitioner to show cause why the unauthorized buildings be not demolished. The petitioner replied the same on 20.4.1999 by submitting that notification dated 31.1.1983 was vague; no scaled plan had been prepared; mandatory provisions of Section 3 of the Act requiring notice being given, were not complied; no proceedings under sections 6 and 8 of the Act were taken; the building was beyond the restricted area; the petitioner had acted bonafide in purchasing the property and raising the construction; there were other shops and buildings in the area. A sum of Rs.2 crores had been spent on the construction. 5 The petitioner filed CWP No.7992 of 1999 against the impugned notice, which was disposed of on 4.6.1999. With the consent of the contesting respondents, direction to pass order after giving opportunity to the petitioner was issued. 6. Thereafter, on Collector’s direction, measurement report, a copy of the plan prepared by the Army authorities on a scale of 1:5000 and copies of Roznamcha (Proceedings Register) of the Patwari were produced. The said documents were shown to the petitioner. The Collector vide order Annexure P.22 rejected objections of the petitioner by recording following findings:- 5 CWP No.8707 of 1999 (i) Absence of delegation by the Central Government did not affect power of the Collector appointed by the State Government to function as such. Definition of ‘Collector’ under Section 2(f) of the Act being ‘inclusive’ Collector appointed by the State Government was not excluded. (ii) The map must have been available in the office for inspection at the relevant time. Its non availability, later, was of no effect as the petitioner never sought to inspect the map at the time of notification in the year 1983. In fact, the petitioner came into picture for the first time only in 1998. The map produced met the requirement of law. (iii) Proclamation was duly made and land of the petitioner was within 1000 yards. Requirement of notice under section 9 of the Act was applicable only if structures existed at the time of notification. Similarly, provisions of sections 23 and 35 of the Act applied if there was construction at the time of notification. 6 CWP No.8707 of 1999 (iv) Existence of other constructions in violation of law did not justify the construction by the petitioner. (v) The area was immediately required to be cleared up to meet the security needs and requirements of the Army. 7. The writ petitions were earlier heard and dismissed by a Division Bench of this court on March 19, 2001. It was held: (a) Once declaration is made under section 3(1) of the Act, the same was final, effective and operative. Since the Act dealt with sensitive matters of the defence and security, filing of objections was not envisaged before enforcement of restrictions. Claim for compensation could be settled later. (b) Use of the word “Crest of the outer parimeter” in the notification was not in conflict with the expression “crest of the parapet” used in section 7 of the Act and existence of the building of the defence was not a sine qua non. The defence authorities were not required to 7 CWP No.8707 of 1999 publicly exhibit the plan. Dictionary meanings of ‘crest’ or ‘parapet’ were not relevant. (c) Omission of notice under section 9 of the Act for making of award did not affect validity of declaration and absence of such a notice or award was of no consequence when no objections were filed or claims made. However, direction was issued to issue notice under section 9 and make award at the earliest. (d) Absence of plan was of no consequence as the declaration specified that restriction was to apply to area in the radius of 1000 yards of the outer perimeter of the ammunition depot. The description was sufficient and clear. (e) Definition of ‘Collector’ under section 2(f) of the Act was inclusive definition and did not exclude the Collector of the district. Mere fact that the State Government issued notification dated 8.1.1998 appointing Additional Deputy Commissioner to perform functions of Collector under the Act was of no consequence, as held by the Hon’ble Supreme 8 CWP No.8707 of 1999 court in P.Kasilingam and others v. P.S.G.College of Technology and others, AIR 1995 SC 1395 and Full Bench judgment of the Allahabad High Court in Darbari Lal and others v. Smt.Dharam Wati, AIR 1957 Allahabad 541. (f) Section 6(4) of the Act was applicable only to constructions existing at the time of declaration under section 3 of the Act. (g) Other illegal constructions did not create any right in favour of the petitioner. Mere procedural lapse did not vitiate proceedings as held by the Hon’ble Supreme Court in Venkataswamappa v. Special Deputy Commissioner (Revenue), AIR 1997 SC 503 and in any case, Court could decline to interfere under Article 226. 8. While dismissing the petition, direction was also issued to remove unauthorized constructions within one year. Reference was made to events that had taken place at Bharatpur Ordinance Depot in Rajasthan and Dehu Road near Pune. It was observed that conduct of District and police authorities left much to be desired. 9 CWP No.8707 of 1999 Inspite of numerous letters from the defence authorities, the District Administration and the police authorities failed to act which resulted in unauthorised constructions and which could jeopardize security and safety of defence installations. Direction was issued to the Chief Secretary, Punjab to enquire into the matter and to fix responsibility and to take suitable action. In later orders, it was observed that the orders were not carried out sincerely. In CWP No.11820 of 1999, direction was sought and was granted to verify whether structures were beyond 1000 square yards. Similar direction was issued vide order dated 3.4.2001 in Review Application No.125 of 2001 by modifying order dated 19.3.2001 to the effect that if construction was beyond the distance of 1000 square yards, no demolition will take place. 9. On appeal of the petitioner, Hon’ble Supreme Court vide order dated 7.10.2003 set aside the order of this Court and remanded the matter for a fresh decision preferably within four months. The Hon’ble Supreme Court did not express any opinion on merits. Operative part of the order is as under:- “The learned counsel for the parties agree that the matters require to be decided afresh by the High Court dealing with the factual as well as legal aspects in the light of the rival contentions raised. In the view we are taking, we do not wish to express one way or the other 10 CWP No.8707 of 1999 on the merits of the respective contentions raised on behalf of the parties. Hence, these appeals are allowed. The impugned orders are set aside and the writ petitions are remitted to the High Court for fresh disposal after hearing the parties dealing with the rival contentions both – factual (relating to the area covered by the Notification issued under Section 3 of the Act) and legal.” 10. We have heard learned counsel for the parties. 11. Shri Mahajan, learned counsel for the petitioners in CWP No.8707, 11422 and 11633 of 1999, submitted that in absence of notice under section 9 of the Act within the stipulated period and making of award and giving of compensation, there could be no restriction on construction. Proceedings should be treated to have lapsed. Reliance has been placed on judgment of the Hon’ble Supreme Court in Babu Verghese & Others v. Bar Council of Kerala and others, AIR 1999 SC 1281, Paras 30, 31, to submit that compliance with the procedural requirements is mandatory. 12. Shri Chopra, learned counsel for the petitioners in CWP No.8570 of 2001 submitted that in absence of steps under Section 9, the notification lapsed and the same could not be given effect to. 11 CWP No.8707 of 1999 He referred to following documents filed alongwith application dated 19.5.2009: (i) Letter Annexure P.8 dated 10.2.1995 addressed by Deputy Commissioner, Ludhiana to Home Secretary, Chandigarh sending a draft notification. The said letter states that the Commandant, 17 Field Ammunition Depot has asked the office for re-notification in Punjab Government Gazette. (ii) Letter Annexure P.9 dated 20.3.1995 to the same effect. (iii) Letter Annexure P.10 dated 14.12.1995, which is reply from the Home Department to the Deputy Commissioner, Ludhiana to the effect that the notification could not be issued by the State Government. (iv) Annexure P.11 which are minutes of meeting held on 28.1.2004 under the Chairmanship of Collector to review the unauthorized constructions. (v) Annexure P.12 dated 3.2.2004 which is a letter from the Army authorities to the ADC, Ludhiana about the hearing of the writ petitions. (vi) Annexure P.13 which is letter dated 11.4.2007 from Collector Ludhiana to the Central Government on the issue of illegal construction within 1000 yards of Baddowal Ammunition depot stating that in absence of award, land 12 CWP No.8707 of 1999 owners could not be prevented from raising construction. (vii) Annexure P.14 which is letter dated 30.10.2007 from the department of Home Affairs to Deputy Commissioner, Ludhiana seeking information about the area upto 1000 yards from the defence establishment. Document annexed to Annexure P.14 is information signed by the Branch Assistant containing information of buildings existing within 1000 yards including marriage palaces, houses, shops etc. (viii) Annexure P.15 is notification dated 22.5.2001 of the Central Government under sections 3 and 7 of the Works of Defence Act, 1903, inter-alia, declaring that area in the vicinity of Indian Air Force aerodromes and installations may be kept free from buildings and other obstructions and no building or structure be constructed within 900 meters from the crest of the outer parapet of Indian Air Force aerodromes and installations. (ix) Annexure P.16 is letter dated 6.5.2003 mentioning that notification dated May 22, 2001 had expired. (x) Annexure P.17 is letter dated 10.4.2003 which is similar to Annexure P.16. (xi) Annexure P.18 is an order of the Himachal Pradesh High Court disposing of a petition in terms of statement of parties. 13 CWP No.8707 of 1999 (xii) Annexure P.19 is a “pictorial depiction of a parapet”. (xiii) Annexure P.20 is a letter dated 5.9.2000 seeking assistance of Kanungo and Patwari for measurement of notified area. 13. Mr. Jaskirat Singh Sidhu, learned counsel for the petitioner in CWP No. 12017 of 1999, submitted that provisions of sections 3, 6, 7 and 39(4) of the Act envisaged action of demolishing structures within six months only and the limit of area covered by restrictions could be less than 1000 square yards depending upon requirement. He further submitted that notification under section 3 of the Act was defective and mandatory requirements of Sections 3, 6, 9 and 12 of the Act were not complied with and thus, the proceedings should be held to have lapsed. The “crest of the outer parapet of the work” referred to in Section 7 of the Act cannot be equated to outer barbed wire fence. The crest referred to the peak or ridge of a roof, as per dictionary meaning and thus, the measurements are erroneous. The measurement should be as on 31.1.1983 and not as per sketch plan prepared on 13.7.2004. It was also submitted that there was pick and choose policy for demolition of buildings. The Ammunition depot itself should be shifted as large scale construction has already taken place. 14 CWP No.8707 of 1999 14. Mr. Hemant Sarin in CWP No.11820 of 1999 submitted that point of measurement should be the outer crest of parapet of dumps and for this purpose, the constructions by the army authorities after 1983 should not be taken into account. He has filed maps showing position in the years 1983 and 2003 and a diagram of the Ammunition shed to submit that the ‘crest’ is the top of the structure. 15. Mr. R.S.Mittal, learned counsel in CWP No.11632 of 1999 submitted that the depot itself be shifted elsewhere as its location in the heart of congested city like Ludhiana was not conducive. 16. Learned counsel for the Union of India opposed the submissions and submitted that the original affected owners never raised any objection. Objections have been raised by the petitioners who came into picture after long period. Having regard to the object of imposing the restrictions, the procedural provisions which deal with determination of compensation after restrictions have already become operative could not affect the said restrictions. In any case, the said provisions be read as directory and compliance requirement of issuing of notice or giving of compensation could be done even now. The shifting of Ammunition depot was a matter of policy of the Army which 15 CWP No.8707 of 1999 depended on various strategic reasons and shifting of depot was not viable. The constructions were illegal and raised after the notification and thus, no equity arises in favour of the petitioners. 17. The following questions arise for consideration:- (i) Whether notification dated 31.1.1983 has lapsed or is otherwise liable to be quashed? (ii) Whether the order of the Collector rejecting objections to demolition was liable to be interfered with? 18. Before dealing with the above questions, it will be appropriate to reproduce provisions of Sections 3, 6,7, 9 and 12:- 3. Declaration and notice that restrictions will be imposed.—(1) Whenever it appears to the Central Government that it is necessary to impose restrictions upon the use and enjoyment of land in the vicinity of any work of defence or of any site intended to be used or to be acquired for any such work, in order that such land may be kept free from buildings and other obstructions, a declaration shall be made to that effect under the signature of a Secretary to such Government or of some officer duly authorised to certify its orders. (2) The said declaration shall be published in the Official Gazette and shall state the district or other territorial division in which the land is situate and the place where a sketch plan of the land, which shall be 16 CWP No.8707 of 1999 prepared on a scale not smaller than six inches to the mile and shall distinguish the boundaries referred to in Section 7, may be inspected; and the Collector shall cause public notice of the substance of the said declaration to be given at convenient places in the locality. (3) The said declaration shall be conclusive proof that it is necessary to keep the land free from buildings and other obstructions. Xx xxx xxx xxxx 6. Further powers exercisable after publication of notice under Section 3, sub-section (2).—(1) Whenever a declaration has been made and public notice thereof has been given under Section 3, it shall, subject to the provisions of sub-sections (2) to (4), be lawful for such officer as the Central Government may, by general or special order, authorise in this behalf, and for his servants and workmen, to enter and demolish any buildings or other constructions on the surface, to cut down or grub up all or any of the trees, to remove or alter all or any of the banks, fences, hedges and ditches, to make underground and other drains, to fill up all excavations, and demolish all buildings and other constructions below the surface, and generally to level and clear the said land and do all such acts for levelling and clearing the same as he may deem necessary or proper, but in such manner nevertheless that evidence 17 CWP No.8707 of 1999 of the boundaries of the lands held by different owners may be preserved. (2) The powers conferred by sub-section (1) shall not be exercised,— (a) save as otherwise provided by sub-section (3), before the making of the award hereinafter referred to in Section 12, nor (b) save as otherwise provided by sub-section (4), after the expiration of six months from the making of the said award, or any shorter period on the expiration of which the officer exercising such powers gives notice to the Collector that there will be no further exercise of them. (3) In case of emergency, the Central Government may, by notification in the Official Gazette, declare that all or any powers conferred by sub-section (1) may be exercised at any time within six months after the publication of the notice referred to in Section 3, sub- section (2), and such powers may be exercised accordingly, and the said notification shall be conclusive proof of emergency. (4) Nothing in sub-section (2) shall be deemed to preclude any such officer or his servants or workmen from exercising at any time the said powers for the purpose of removing, wholly or in part, any building or other obstruction maintained, created, added to, altered, planted, stacked, stored or otherwise accumulated in contravention of this Act or of any rule or order made 18 CWP No.8707 of 1999 thereunder or of any condition prescribed in accordance therewith. 7. Restrictions.—From and after the publication of the notice mentioned in Section 3, sub-section (2), such of the following restrictions as the Central Government may in its discretion declare therein shall attach with reference to such land, namely :— (a) Within an outer boundary which, except so far as is otherwise provided in Section 39, sub-section (4), may extend to a distance of two thousand yards from the crest of the outer parapet of the work,— (i) no variation shall be made in the ground- level, and no building, wall, bank or other construction above the ground shall be maintained, erected, added to or altered otherwise than with the written approval of the General Officer Commanding the District, and on such conditions as he may prescribe; (ii) no wood, earth, stone, brick, gravel, sand or other material shall be stacked, stored or otherwise accumulated : Provided that, with the written approval of the General Officer Commanding the District and on such conditions as he may prescribe, road- ballast, manure and agricultural produce may be exempted from the prohibition: Provided also that any person having control of the land as owner, lessee or occupier shall be bound forthwith to remove such road-ballast, 19 CWP No.8707 of 1999 manure or agricultural produce, without compensation, on the requisition of the Commanding Officer; (iii) no surveying operation shall be conducted otherwise than by or under the personal supervision of a public servant duly authorised in this behalf, in the case of land under the control of military authority, by the Commanding Officer and, in other cases, by the Collector with the concurrence of the Commanding Officer; and (iv) where any building, wall, bank or other construction above the ground has been permitted under clause (i) of this sub-section to be maintained, erected, added to or altered, repairs shall not, without the written approval of the General Officer Commanding the District, be made with materials different in kind from those employed in the original building, wall, bank or other construction. (b) Within a second boundary which may extend to a distance of one thousand yards from the crest of the outer parapet of the work, the restrictions enumerated in clause (a) shall apply with the following additional limitations, namely :— (i) no building, wall, bank or other construction of permanent materials above the ground shall be maintained otherwise than with the written approval of the General Officer Commanding the District and on such conditions 20 CWP No.8707 of 1999 as he may prescribe, and no such building, wall, bank or other construction shall be erected : Provided that, with the written approval of the General Officer Commanding the District and on such conditions as he may prescribe, huts, fences or other constructions of wood or other materials, easily destroyed or removed, may be maintained, erected, added to or altered : Provided, also, that any person having control of the land as owner, lessee or occupier shall be bound