C.W.P.No.16970 of 2007 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision : March 4, 2010 C.W.P.No.16970 of 2007 Paramjeet Singh Rai …Petitioner Versus Union Territory, Chandigarh and others …Respondents Present :Mr. Ashwani Chopra, Sr. Advocate, with Ms. Shilpa Malhotra, Advocate, for the petitioner. Mr. Sanjiv Ghai, Advocate, for respondent No.4. C.W.P.No.8382 of 2008 Atul Mittal and another ...Petitioners Versus Union Territory, Chandigarh and others ...Respondents Present :Mr. V.K.Sachdeva, Advocate, for the petitioners. Mr. Sanjiv Ghai, Advocate, for respondent No.4. CORAM:HON'BLE MR. JUSTICE HEMANT GUPTA HON'BLE MR. JUSTICE JORA SINGH 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? HEMANT GUPTA, J. This order shall dispose of two writ petitions raising identical questions in respect of applicability of the Chandigarh Administration (Erection and Re-erection of Buildings) Rules, 2006 (for short ‘the Rules’). The order dated 10.10.2007 (Annexure P-12) declining sanction of building plans for the construction of Shopping Complex/Retail Mall in the area of Village Shahpur is also challenged in CWP No.16970 of 2007, whereas the petitioners in CWP No.8382 of 2008 have sought quashing of sub-Rule (ii) of Rule 1 of the 2006 Rules as well. The issues for our consideration are; (i) Whether an area, included within the Municipal limits of Municipal Corporation, Chandigarh, would be governed and regulated by the Capital of Punjab (Development and Regulation) Act, 1952 (for short ‘the Act’)? 1 C.W.P.No.16970 of 2007 (ii) Whether Sub-Rule (ii) of Rule 1 of the “Rules” is legal and valid? Firstly some facts need to be mentioned. The petitioner, in CWP No.16970 of 2007, is a Non Resident Indian, who has conceived a project to set up a Retail Mall/Shopping Complex at Chandigarh. The petitioner purchased 7 Bighas 16 Biswas i.e. 1.7 acres of land comprising in khasra Nos.32/2 (2-13), 33/2 (2-10), 34/2 (2-13) Kittas 3, Khewat No.8, Khatauni No.8 in village Shahpur H.B.No.202, Union Territory of Chandigarh from Shri Om Parkash son of Shri Deep Chand and Smt. Ved Kumari Chaudhary wife of Shri Zile Singh, vide registered sale deed dated 2.5.2007 for a sale consideration of Rs.9 crores. The petitioner has averred that he sold his property in Canada with the intent to set up a business in Chandigarh and sought permission to construct a Retail Mall in the area in question vide letter dated 9.5.2007. The requisite fee for the sanction of the building plan was deposited on 16.5.2007. The plans submitted were returned in original twice; once with 13 observations. However, on 26.09.2007, the 2006 Rules were amended. Such Rules were made applicable only to the ‘unacquired abadi area of villages’ comprised/included in the Municipal area of the Municipal Corporation of Chandigarh after the said amendment. Consequent to such amendment, the petitioner was communicated on 10.10.2007 that the building plans submitted by the petitioner cannot be considered for sanction. The petitioners, in CWP No.8382 of 2008, have purchased the land measuring 8 Bighas 14 Biswas comprising in Khasra Nos.57 (2-2), Khatoni No.12, Khasra No.57 (2-2), Khatoni No.17/1, Khewat No.10, Khasra No.53 (2-1), Khasra No.54 (2-09), Khatoni No.10, Khewat No.9 in Village Shahpur, H.B.No.202, U.T.Chandigarh from Shri Karamjit Singh son of Shri Nasib Singh and from Shri Shamsher Singh, vide sale deeds dated 9.6.2003 and 8.2.2008, for the purpose of erecting and setting up a Retail Mall-cum-Business Complex. The petitioners submitted an application to seek permission to construct Retail Mall/Business Complex, which was not entertained in view of the 2006 Rules as amended. The brief historical and legislative background establishing Chandigarh as Capital of Punjab and the statutory provisions applicable to such area needs to be extracted. The need to establish capital for the State of Punjab after independence became necessary as its earlier capital “Lahore” became part of Pakistan. During progress of construction of new Capital of Punjab at Chandigarh, it was considered necessary to vest the State Government with legal authority to regulate the sale of building sites and to ensure that the purchasers construct building in accordance with the bye-laws and generally observe the conditions of sale. To achieve the said objective, the Capital of Punjab (Development and Regulation) Act, 1952 (President’s Act 5 of 1952) was enacted in exercise of powers conferred by Section 3 of the Punjab State Legislature (Delegation of Powers) Act, 1951. The notification dated 24.3.1952 was published intending to acquire land for capital of Punjab comprising in large number of villages. The Capital of Punjab (Development and Regulation) Act, 1952 (Punjab Act No.XXVII of 1952) (for short ‘the Act’) was re-enacted after repealing the President’s Act V of 1952. Such Act received the assent of the Governor of Punjab on 17.12.1952. The object of enacting such Act, in addition to the one as that of President’s Act No.5 of 1952, was to promulgate building Rules on the lines of Municipal Bye- 2 C.W.P.No.16970 of 2007 laws so long as properly constituted local body does not take over the administration of the city. Thereafter, many notifications have been issued from time to time acquiring land for the Development of Capital of Punjab. The aforesaid Act was amended by Punjab Act No.37 of 1957. Section 7-A was inserted empowering the Chief Administrator, with the previous approval of the Central Government, to apply to Chandigarh or any part thereof, with such adaptations and modifications not affecting the substance as may be specified in the notification, all or any of the provisions of the Punjab Municipal Act, 1911 as specified in the Second Schedule appended to this Act. Certain provisions of Punjab Municipal Act, 1911 were made applicable to Chandigarh. Such Second Schedule has been amended from time to time. The Punjab State Legislature also enacted Act No.1 of 1953 namely the Punjab New Capital (Periphery) Control Act, 1952 (for short ‘the Periphery Act’) receiving the assent of the President on 12.01.1953, to control and regulate the periphery of the new Capital of Punjab. The master plan providing for future extension of Capital was to extend over a much greater area than the area acquired for the construction of first phase of Capital. Therefore, the object of enacting such an Act was to ensure healthy and planned development of new city and to prevent the growth of slums and ramshackle construction on the land lying on the periphery of new city (Chandigarh). It was considered necessary to have legal authority to regulate the use of the said land for the purposes other than the purposes for which it is used at present. The State of Punjab was reorganized with the enactment of Punjab Re-Organization Act, 1966 so as to carve out a separate State of Haryana, State of Himachal Pradesh and Union Territory of Chandigarh. Section 4 of the Act deals with formation of Union Territory, Chandigarh. A new Union Territory to be known as Union Territory of Chandigarh comprising such of the territories of Manimajra and Manauli kanungo circles of Kharar tehsil of Ambala district in the existing State of Punjab as are specified in the Second Schedule, forms a new Union Territory of Chandigarh. Consequent to the said Act, the Punjab Reorganization (Chandigarh) (Adaptation of Laws on State and Concurrent Subjects) Order, 1968 (for short ‘the Order’), was issued by the Central Government in exercise of the powers conferred by Section 89 of the Punjab Re-Organization Act, 1966 which came into force on 1st day of November, 1966. From the appointed day, the existing laws and the Central Acts mentioned in the Schedule to the said Order shall have effect, subject to the adaptations and modifications directed by the Schedule, until altered, repealed or amended by a competent Legislature or other competent authority. Both the above Acts before and after the said order as are relevant for the present petitions are extracted below: 3 C.W.P.No.16970 of 2007 As in force prior to 1.11.1966 As amended , modified and applicable from 1.11.1966 1. (1) This Act may be called the Capital Punjab (Development and Regulation) Act, 1952. (2) It extends to such areas comprising the site of the Capital of Punjab as may, from time to time, be specified by the State Government by notification in the official Gazette. (3) It shall come into force at once. 2. In this Act, unless the context otherwise requires – (a) xxx (d) “Chandigarh” means the areas comprising the site of the Capital of Punjab to which this Act extends ; Section 1 – For sub-section (2) substitute – “(2) It extends to the City of Chandigarh which shall comprise the areas of the site of the capital of Punjab as notified by the Government of Punjab before the 1st November, 1966 and to such areas as may be notified by the Central Government from time to time.” Section 2 – For clause(d) substitute– “(d) “Chandigarh” means the areas to which this Act extends; 1. (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. (3) It shall come into force at once. 2. xxx 3. (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. 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.” Mr. Ghai has produced a notification dated 27.2.1958 issued under sub-section (2) of Section 3 of the of the Periphery Act, declaring the area comprised in the revenue estates of the Villages specified in the Schedule as controlled area. Village Shahpur (H.B.No.202) appears at Sr.No.58 with the remarks that the “entire part of the village outside the Capital boundary (excluding area mentioned vide 4 C.W.P.No.16970 of 2007 notification dated 24.3.1952 and area acquired vide notification dated 8.12.1952)”. The notification dated 8.12.1952 is for acquisition of land situated in village Bajwara (H.B.No.210). The land situated in Village Shahpur (H.B.No.02) was also subject matter of acquisitions, for the purpose of Capital Project of Chandigarh. The Punjab Municipal Corporation Law (Extension to Chandigarh) Act, 1994 (Central Act No.45 of 1994) came into force with effect from 24.5.1994 having received the assent of President of India on 22.07.1994. Section 3 of the aforesaid Act repealed Punjab Municipal Act, 1911 in so far as it applied to Union Territory Chandigarh. The Punjab Municipal Corporation Act, 1976 as amended by the Central Act, (for short ‘the Municipal Act’) was made applicable to the Union Territory of Chandigarh. The relevant provisions of Municipal Act, as amended in its application to Chandigarh, relevant to the present writ petitions are as under: “2A. The application of certain definitions of the Capital of Punjab (Development and Regulation) Act, 1952 – The words used and not defined in this Act but defined in the Capital of Punjab (Development and Regulation) Act, 1952 (Punjab Act XXVII of 1952) shall have the meanings respectively assigned to them in that Act. 3. Declaration of area to be municipal area – (1) For the purposes of this Act, the Administrator shall, by notification, specify such territorial area of the Union Territory of Chandigarh to be the Municipal area of the Municipal Corporation of Chandigarh. (2) The Administrator may, from time to time, after consultation with the Corporation, by notification, after the limit specified under sub-section (1) so as to include therein or to exclude therefrom such area as may be specified in the notification. The Corporation shall send its views to the Administrator within a period of three months of the date of which it is first consulted. (3) The power to issue a notification under sub-section (2) shall be subject to the condition of previous publication. (4) When the limits specified under sub-section (1) are altered so as to include therein any area, this Act and, except as the Administrator may otherwise by notification direct, all rules, notifications, bye-laws, orders, directions and powers made, issued or conferred and all taxes and fees imposed under this Act and in force throughout the area specified under sub-section (1) shall apply to such included area.” 424. Government’s power to withdraw area of any City from operation of Act – (1) the Government may, by notification, withdraw from the operation of this Act the area of any City constituted thereunder; Provided that no such notification shall be issued unless the same has been published for inviting objections and the objections, if any, have been duly considered. 5 C.W.P.No.16970 of 2007 (2) When a notification is issued under this Section in relation to any City, this Act, all notifications, rules, regulations, bye-laws, orders, directions and powers issued, made or conferred under this Act, shall cease to apply to the said area; the balance of the Corporation Fund and all other property at the time of the issue of the notification vested in the Corporation shall vest in the Government and the liabilities of the Corporation shall stand transferred to the Government. 424-A. Application of the Capital of Punjab (Development and Regulation) Act, 1952 and the Punjab New Capital (Periphery) Control Act, 1952 – Notwithstanding anything contained in this Act, the provisions of the Capital of Punjab (Development and Regulation) Act, 1952 (Punjab Act XXVII of 1952) and of the Punjab New Capital (Periphery) Control Act, 1952 (Punjab Act 1 of 1952) and the rules, regulations, bye- laws, notifications, orders, scheme, form or notice made thereunder shall continue to be applicable in relation to the development and regulation of the Union Territory of Chandigarh as immediately before the commencement of the Punjab Municipal Corporation Law (Extension to Chandigarh) Act, 1994.” The Punjab Capital (Development & Regulation) Building Rules, 1952 (for short ‘Building Rules’)” were framed in exercise of the powers conferred by sub-Section 2 of Section 5 and Section 22 of the Act, for the purpose of construction of the buildings within the City of Chandigarh. The extent of applicability of such Rules has undergone amendments on 7.1.1998 and 16.11.2006. The relevant extract is tabulated as under: Rules as notified on 27.12.1952 Rules as notified on 7.1.1998 Rules as notified on 16.11.2006 1. (a) These Rules shall be called the Punjab Capital (Development and Regulation) Building Rules, 1952. (b) These shall come into force at once. (c) These shall extend to the whole of Chandigarh. (c) These shall extend to the whole of Chandigarh except the unacquired land comprised in the abadi areas of Village Manimajra, Burail, Attawa, Badheri and Buterla. (c) These shall extend to the whole of Chandigarh except the area of the revenue estate of the villages Manimajra, Burail, Attawa, Badheri, Buterla, Maloya, Dadu Majra, Palsora, Kajheri and Hallo Majra (including the area under Abadi Deh therein). It may be noticed that the territorial area of Union Territory Chandigarh includes City of Chandigarh, as mentioned in the Act and also the rural areas having agricultural and abadi land in terms of Section 4 of the Punjab Re-organization Act, 1966. Section 3 of the Municipal Act, empowers the Administrator to specify a territorial area of Union Territory of Chandigarh to be the Municipal area of the 6 C.W.P.No.16970 of 2007 Municipal Corporation, Chandigarh. Vide notification dated 27.7.1994, the territorial area of Municipal Corporation, Chandigarh was specified and the Gram Panchayats of Badheri, Buterala and part of Notified Area Committee, Mani Majra ceased to exist as well. The Constitution of the Corporation, cessation of Gram Panchayats as well as part of Notified Area Committee of Mani Majra became subject matter of challenge before this Court. The Constitution of Municipal Corporation and cessation of Gram Panchayats was upheld by Division Bench in a judgment reported as Bhupinder Singh and others Vs. Union of India and others (1997-3) PLR 334. Subsequently vide notification dated 19.9.2006, five villages i.e. Hallo Majra, Kajheri, Palsora, Maloya and Dadu Majra were included with the municipal limits of Municipal Corporation, Chandigarh in exercise of powers conferred under Section 3(1) of the Municipal Act. A Division Bench of this Court upheld the extension of municipal limits vide judgment dated 1.12.2006 in CWP No.15373 of 2006 titled “Hardeep Singh and others Vs. Chandigarh Administration and others”. Vide separate notification dated 16.11.2006, the ‘Act’ was extended to the aforesaid five villages i.e. Maloya, Palsora, Kajheri, Dadu Majra and Hallo Majra. The said notification was superseded on 25.9.2007 and its applicability restricted to 43.69 acres of land in village Maloya; 9.08 acres in village Palsora; 38.37 in village Kajheri; 20.20 in village Dadu Majra and 35.42 acres in village Hallo Majra. The notification dated 8.4.2008 substituted earlier notification dated 25.9.2007 and the “Act” was extended to land measuring 69.02 acres in Village Hallo Majra. Even the said notification was superseded by notification dated 25.5.2009 and the “Act” was notified to be applicable to the abadi areas of five villages i.e. Maloya, Kajheri, Palsora, Dadu Majra, and Hallo Majra. It was clarified that the area outside the abadi area was continued to be controlled by Periphery Act. The net result is that the “Act” is applicable to abadi area of villages Maloya, Palsora, Kajheri, Dadumajra and Hallo Majra, but the “Building Rules” are not applicable to these villages including the area under abadi deh in terms of the Rules notified on 16.11.2006, as tabulated above. On the other hand, vide notification dated 19.9.2006, Seven villages i.e. area of revenue estate of Nizampur Burail, Nizampur Kumbhra, Jhumru, Burail (Abadi Faidan), Bar Majra, Badheri and Shahpur including area under Abadi not included earlier to be part of municipal area, were included in the municipal area of Municipal Corporation of Chandigarh. However, there is no notification extending the “Act” to the area of seven villages though notified to be municipal area. There is no dispute about the factual position as enumerated above. However, the dispute arises in respect of framing of Chandigarh Administration (Erection and Re-erection of Buildings) Rules, 2006 notified vide notification dated 16/17.11.2006. It is the said Rules, which have been amended on 27.12.2006 and 26.9.2007. The Rule (1) is subject matter of interpretation. The same is extracted in a tabulated form below : 7 C.W.P.No.16970 of 2007 Notification dated 16/17.11.2006 Notification dated 27.12.2006 Notification dated 26.9.2007 No/26/6/39-utfi(3)-2066/7127 – In exercise of the powers conferred by sub-section (2) of the Section 5 read with Section 22 of the Capital of Punjab (Development and Regulation) Act, 1952 and all other powers enabling him in this behalf, the Administrator, Union Territory, Chandigarh is pleased to make the following Rules, namely :- 1. Title, extent and Commencement : (i). These Rules may be called the “The Chandigarh Administration (Erection and Re-erection of Buildings) Rules, 2006, for villages in the Municipal area of the Municipal Corporation of Chandigarh.” (ii). These Rules shall extend to the entire area of the revenue estate of the villages comprised/ included in the Municipal area of the Municipal Corporation of Chandigarh, including the area under Abadi Deh therein. (iii) These shall come into force at once. No.26/6/39-UTFI(3)-2006/7869 – In Supersession of Chandigarh Administration, Finance Department notification bearing No.26/6/39-UTFI(3)-2006/7127, dated 16.11.2006 and in exercise of the powers conferred by sub- section (2) of Section 5 read with Section 22 of the Capital of Punjab (Development and Regulation) Act, 1952 and all other powers enabling him in this behalf, the Administrator, Union Territory, Chandigarh is pleased to make the following Rules, namely :- 1. Title, extent and Commencement : (i). These Rules may be called the “The Chandigarh Administration (Erection and Re-erection of Buildings) Rules, 2006, for villages in the Municipal area of the Municipal Corporation of Chandigarh.” (ii). These Rules shall extend to the entire unacquired area of revenue estate of Villages comprised/ included in the Municipal area of Municipal Corporation of Chandigarh, including the area under Abadi Deh therein. (iii) These shall come into force at once. No.26/6/39-UTF1(3)/2007-6101 – In exercise of the powers conferred by sub-section (2) of Section 5 read with Section 22 of the Capital of Punjab (Development and Regulation) Act, 1952 and all other powers enabling him in this behalf, the Administrator, Union Territory, Chandigarh is pleased to make the following rules further to amend the Chandigarh Administration (Erection and Re-erection of Buildings) Rules, 2006, namely 1. These rules may be called “The Chandigarh Administration (Erection and Re-erection of Buildings (First Amendment) Rules, 2007”. 2. sub-rule (ii) of rule 1 shall be substituted as under :- “These rules shall extend only to the unacquired abadi areas of villages comprised/included in the municipal area of the Municipal Corporation of Chandigarh.” Learned counsel for the petitioners have vehemently argued that since the area of Village Shahpur is notified to be urban area within the meaning of the Municipal Act and the fact that area of 8 C.W.P.No.16970 of 2007 Village Shahpur was included in Ward No.6 for the purposes of Municipal Corporation, therefore, the “Act” is applicable mutatis mutandis to the area of Village Shahpur. It is contended that in terms of Section 424-A of the Municipal Act, the provisions of the “Act”, Rules, Regulations and Bye-laws continue to be applicable in relation to the development and regulation of Union Territory of Chandigarh. Therefore, the area over which Municipal Act is applicable is also governed by the “Act”. Therefore, the Rules framed by the Administration on 27.12.2006 and subsequently amended on 26.9.2007 are applicable to the area of Village Shahpur, the part of which has been purchased by the petitioners. It is also contended that the amendment notified on 26.9.2007 contemplates application of Rules to the unacquired abadi area of the Villages comprised/included in the Municipal area. It is contended that the abadi area is not the area as defined in the Punjab Land Revenue Act, 1887 but is the urban area, declared to be part of the municipal area of Municipal Corporation, Chandigarh. Since the area purchased by the petitioners is not acquired, therefore, it is unacquired abadi area and, thus, the “Rules” are applicable to the said land. On the other hand, learned counsel for the Municipal Corporation has argued that the “Act” and the “Municipal Act” operate in different sphere and in respect of distinct areas. An area may be governed by both the statutes, but it cannot be said that where the Municipal Act is applicable, by necessary implication, “the Act” is also applicable. It is contended that the land purchased by the petitioners in the area of Village Shahpur, was not an area of City of Chandigarh on 1.11.1966 and has not been notified to be governed by the “Act”. Therefore, the Periphery Act is applicable as the Act is not extended over the land purchased by the petitioners. Thus, the petitioners cannot raise construction as sought by submitting the building plans. It is also contended that un acquired abadi area over which the “Rules” are applicable does not mean the Urban or Municipal area of Municipal Corporation, Chandigarh. The word abadi is not defined in the Act. The abadi area is such as defined under the Punjab Land Revenue Act, 1887. The word abadi is the Area declared by the revenue officer as abadi for the residence of the villagers in terms of Section 4 of the Punjab Land Revenue Act, 1887. Therefore, the ordinary meaning as is used by the citizens in the locality would be applicable. The land purchased by the petitioners is not part of abadi so understood, but is an agricultural land bearing khasra numbers, which is evident from the description of land purchased by the petitioners given in the writ petitions itself. Therefore, the petitioners cannot seek sanction of building plans in terms of the “Rules”. The “Act” extends to City of Chandigarh comprising the