RAKESH KUMAR GARG, J. - (1.) 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,.
(2.) THESE writ petitions were initially being heard along with CWP 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 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."
(3.) 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. (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, 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 subsection, 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 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 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, brick-field or brickkiln 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 Act shall apply to- [(a) any building erected or re-erected for bona fide 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 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.]" ;