Resurgence India vs State of Punjab and Others

A.K. Sikri, C.J.—By way of this order, we shall dispose of two writ petitions being CWP Nos. 4099 of 2004 and 6026 of 2007 as both are Interconnected. In CWP No. 6026 of 2007, petitioner seeks mandamus directing in-depth enquiry by some independent investigating agency to ascertain the role of officials of the Department of Local Government of the Government of Punjab, Chief Town Planner and Municipal Bodies in Punjab in allowing massive violations of Building Bye-laws, Land Use Policy, Town Planning Schemes and Building Schemes in Punjab that have allegedly taken place over more than a decade and to fix responsibility of the municipal and other officials including the supervisory authorities who allowed these violations to occur.

In nutshell, what is stated is that many illegal structures/buildings in different parts of the State of Punjab have been constructed in violation of the Municipal Bye-laws and no action has been taken against the officials who allowed these structures/buildings to come up in the first instance. According to the petitioner, the compounding of the violations which are contrary to the Municipal Bye-laws cannot be allowed. On this ground, vires of the Punjab One-Time Voluntary Disclosure and Settlement of Violations of the Buildings constructed in violation of the Building Bye-Laws in the Corporations and the Municipalities Act, 2004 (hereinafter referred to as the "Act") are challenged by the petitioner in CWP No. 4099 of 2004.

Mr. Sidhu, learned Additional Advocate General, Punjab, states that in order to regularize these unauthorized constructions, the Punjab Legislature has enacted the Act. He further submitted that the Legislature was fully competent to enact such a legislation and there was hardly any justifiable legal ground to question the vires and wisdom of the legislation in this behalf. He submitted that similar law is enacted by other States as well. Specific reference is made to the Delhi Laws (Special Provisions) Act, 2006 and the National Capital Territory of Delhi Laws (Special Provisions) Act, 2011. He also pointed out that the vires of the similar Act were challenged on identical grounds but the challenge was repelled by the Supreme Court in the case of The Consumer Action Group and Another Vs. State of Tamil Nadu and Others, in the following manner:-

This brings us to the next and the last consideration which is the matter of the connected writ petition. During the pendency of this appeal in this Court, the State passed, Tamil Nadu Town and Planning (Amendment) Act, 1998 (hereinafter referred to as the amending Act) through which Section 113-A was introduced in the aforesaid 1971 Act, which is reproduced below:

113-A. Exemption in respect of development of certain lands or buildings, - (1) Notwithstanding anything contained in this Act or any other law for the time being in force, the Government or any officer or authority authorised by the Government, by notification, in this behalf may, on application, by order, exempt any land or building or class of lands or buildings developed immediately before the date of commencement of the Tamil Nadu Town and Country Planning (Amendment) Act, 1998 (hereafter in this section referred to as the said date) in the Chennai Metropolitan Planning Area, from all or any of the provisions of this Act or any rule or regulation made thereunder, by collecting regularisation fee at such rate not exceeding twenty thousand rupees per square metre, as may be prescribed. Different rates may be prescribed for different planning parameters and for different parts of the Chennai Metropolitan Planning Area.

(2) The application under sub-section (1) shall be made within ninety days from the said date in such form containing such particulars and with such documents and such application fee, as may be prescribed.

(3) Upon the issue of the order under sub-section (1), permission shall be deemed to have been granted under this Act for such development of land or building.

(4) Nothing contained in sub-section (1) shall apply to any application made by any person who does not have any right over the land or building referred to in sub-section (1).

(5) Save as otherwise provided in this section, the provisions of this Act, or other laws for the time being in force, and rules or regulations made thereunder, shall apply to the development of land or building referred to in sub-section (1).

(6) Any person aggrieved by any order passed under sub-section (1) by any Officer or authority may prefer an appeal to the Government within thirty days from the date of receipt of the order.

It seems, situation developed to such an extent, that irregularity, violation became order of the day and regularisation through power of exemption may not be appropriate, this amendment was brought in to overcome this situation. By this, Government is empowered, on application being made by person affected, to exempt any land or building developed immediately before the date of the commencement of this amending Act from all or any of the provisions of the Act, rules and regulations by collecting regularisation fees at such rate not exceeding Rs. 20,000/- per square meter. The aforesaid 1982 amendment also added clause (cc) to sub-section (2) of Section 122 of the 1971 Act. The Governor in exercise of its power under this clause (cc) made Application, Assessment and Collection of Regularisation Fees (Chennai Metropolitan Rural Area) Rules, 1999 which prescribe the rates of regularization fees with respect to the various violation if one seeks to regularize it u/s 113-A.

The petitioner has also challenged this amending Act, through writ petition Civil No. 237 of 1999, which we have heard along with the main writ petition.

The petitioner''s challenge is that Section 113-A suffers from the same vice of it being unconstitutional as Section 113. It is also not only against the policy of the statute but it does not subserve to the public interest. The submission is, Section 113-A is merely an extension of the unbridled exemption power conferred by the statute u/s 113 except that under this newly introduced section Government could collect regularisation fees.

This amending Act seeks to legitimatize all violations under the Act, Rules and Regulations and condones all executive acts which is the cause of reaching this situation by not taking appropriate action as against such illegal construction which they were obliged to do under the Act. When the Government and other statutory functionaries failed to work, to promote planned development to this extent, the Legislature has to intervene to bring this amendment.

The submission is this amending Act will greatly prejudice the public safety, security, fresh air and light and convenience to the public at large. u/s 113-A the Government is empowered to grant exemption to such person who makes any application for exempting any land or building developed prior to the date of the commencement of the amending Act from applicability of any of the provisions of this Act and Rules by collecting the regularisation fees, as prescribed. So, this section not only infuses the Government with power to exempt but also lays down the procedure and condition to grant exemption. This covers all buildings or land developed immediately before the date of the commencement of the aforesaid 1998 Act. Here Legislature lays down everything and does not leave to the absolute direction of the delegate. So, Section 113-A cannot be challenged that discretion of the delegatee is unbridled or uncanalised as section itself confers full guidelines in this regard. It is significant also to reproduce the Objects and Reasons for the introduction of this section which is quoted below:

The Statement of Objects and Reasons for the Amendment Act state that:

As of today in Chennai as well as in other metropolitan cities of India many aberrations in the urban development are noticed. Huge disparities between peoples income and property value, together tempt the builders to violate the rules and the buyers to opt for such properties in the city of Chennai. A rough estimate of about three lakh buildings (approximately 50% on total number of buildings) will be violative of Development Control Rules or unauthorised structures. However, according to the Tamil Nadu Town and Country Planning Act, 1971 (Act 35 of 1972) the demolition action cannot be pursued on any of them unless a notice issued within 3 years of completion. The Chennai Metropolitan Development Authority has booked five thousand structures on which demolition action could be taken. Number of such cases booked by the Chennai City Municipal Corporation within its jurisdiction is nearly one thousand. Administratively also demolition of such a large number of cases is neither feasible nor desirable as it will result in undue hardship to the owners and occupants.

Considering this and the practice followed in other metropolitan cities of the country to deal with violated constructions, the State Government have taken a policy to exempt the lands and buildings developed immediately before the date of commencement of the proposed legislation by collecting regularization fee provided that the development has been made by a person who has right over such land or buildings.

(Emphasis supplied)

The Statement of Objects and Reasons exhibits the change of Legislative policy to regularise all those building or land developed in contravention of the various provisions of the Act and the Rules. Section 113-A read with the Statement of Objects and Reasons clearly indicates Legislatures intent and policy, instead of demolishing illegal constructions to regularise them by charging regularisation fees. Thus no similar attributable vice could be attached to Section 113-A which was submitted for Section 113, Section 113-A Legislature, itself lays down what is to do be done by the Government, while in Section 113 Government is conferred with wide discretion though to act within the channel of the policy. In Section 113-A hardly any discretion is left on the Government while in Section 113 very large discretion is left, Challenge to Section 113 is unguided wide power to a delegate, but no such challenge could be made against Legislature. Section 113-A is mandate of the Legislature itself to grant exemption and realise regularisation fees no discretion on the delegate. Hence we hold Section 113-A as a one time measure is valid piece of legislation and challenge to its validity has no merit. It is interesting, though a matter of concern, what is recorded in the Statement of Objects and Reasons. It records:

(A) A Rough estimate of about three lakh buildings (Approximately 50% of the total number of buildings) will be violative of Development Control Rules or unauthorised structure.

(B) Under the Act demolition action against such structure cannot be pursued against any of them unless a notice was issued within 3 years of its completion.

(C) Chennai Metropolitan Development Authority could book only five thousand such structures and Chennai City Municipal Corporation could book only one thousand such buildings against which demolition action could be taken.

(D) Administratively also demolition of such a large number of cases are neither feasible nor desirable, as it will result in undue hardship to the owners and the occupants.

(E) Considering practice followed in other metropolitan cities of the country, the State Government took a policy decision to exempt buildings and lands by collecting regularisation fees.

Mere reading of this reveals, administrative failure, regulatory inefficiency and laxity on the part of the concerned authorities being conceded which has led to the result, that half of the city buildings are unauthorised, violating the town planning legislation and with staring eyes Government feels helpless to let it pass, as the period of limitation has gone, so no action could be taken. This mess is the creation out of the inefficiency, callousness and the failure of the statutory functionaries to perform their obligation under the Act. Because of the largeness of the illegalities it has placed the Government in a situation of helplessness as knowing illegalities, which is writ large no administratively action of demolition of such a large number of cases is feasible. The seriousness of the situation does not stay here when it further records, this is the pattern in other metropolitan cities of India. What is the reason? Does the Act and Rules not clearly lay down, what constructions are legal what not? Are consequences of such illegal constructions not laid down? Does the statute not provide for controlled development of cities and rural lands in the interest of the welfare of the people to cater to public conveniences, safety, health etc.? Why this inaction? The Government may have a gainful eye in this process of regularisation to gain affluence by enriching coffers of the State resources but this gain is insignificant to the loss to the public, which is State concern also as it waters down all preceding developments. Before such pattern becoming cancerous to spread to all part of this country, it is high time that remedial measure is taken by the State to check this pattern. Unless the administration is toned up, the persons entrusted to implement the scheme of the Act are made answerable to the latches on their failure to perform their statutory obligations, it would continue to result with wrongful gains to the violators of the law at the cost of public, and instead of development bring back cities into the hazards of pollution, disorderly traffic, security risks etc. Such a pattern retards the development, jeopardises all purposeful plans of any city, and liquidates the expenditure incurred in such development process.

We may shortly refer to the possible consequences of the grant of such exemption u/s 113-A by collecting regularisation fees. Regularisation in many cases, for the violation of, front set-back, will not make it easily feasible for the corporation to widen the abutting road in future and bring the incumbent closer to the danger of the road. The waiver of requirements of side set-back will deprive adjacent buildings and their occupants of light and air and also make it impossible for a fire engine to be used to fight a fire in a high rise building. The violation of floor space index will result in undue strain on the civil amenities such as water, electricity, sewage collection and disposal. The waiver of requirements regarding fire staircase and other fire prevention and fire fighting measures would seriously endanger the occupants resulting in the building becoming a veritable death trap. The waiver of car parking and abutting road width requirements would inevitably lead to congestion on public roads causing severe inconvenience to the public at large. Such grant of exemption and the regularisation is likely to spell ruin of any city as it affects the lives, health, safety and convenience of all its citizens. This provision, as we have said, cannot be held to be invalid as it is within the competence of State Legislature to legislate based on its policy decision, but it is a matter of concern. Unless check at the nascent stage is made, for which it is for the State to consider what administrative scheme is to be evolved, it may be difficult to control this progressive illegality. If such illegalities stays for a long, wave of political, humanitarian regional and other sympathies develop. Then to break it may become difficult. Thus this inflow has to be checked at the very root. State must act effectively not to permit such situation to develop in the wider interest of public at large. When there is any provision to make illegal construction valid on ground of limitation, then it must mean Statutory Authority in spite of knowledge has not taken any action. The functionary of this infrastructure has to report such illegalities within shortest period, if not, there should be stricter rules for their noncompliance. We leave the matter here by bringing this to the notice of the State Government to do the needful for salvaging the cities and country from this wrath of these illegal colonies and construction.

Learned counsel for the petitioner had sought a short adjournment to look into those another judgments. However, learned arguing counsel for the petitioner is not present today.

We find that the judgment of the Supreme Court in Consumer Action Group and another''s case (supra) directly applies to the present case. We, thus, do not find any merit in CWP No. 4099 of 2004 and it is accordingly dismissed.

As far as CWP No. 6026 of 2007 is concerned, orders were passed from time to time in this petition directing the Municipal Corporation, Ludhiana to fix the responsibility and take action against the erring officials. On 11.12.2012, submission of learned counsel for the respondents was taken on record to the effect that Municipal Corporation, Ludhiana had initiated departmental action and a list of those cases was attached as Annexure P-1. Similar exercise was done by the Town Planning Department and the cases where the departmental action was started against the officers are mentioned in Annexure P-2. A perusal of those Annexures indicate that the charge sheets were issued to the officers named therein way back in the years 2002, 2003, 2005 etc. We accordingly directed Mr. Sidhu to give the status in respect of each of those enquiries.

Affidavit dated 29.01.2013 of Ms. Khushboo Goel, Additional Secretary, Local government, Punjab is filed pursuant to the aforesaid directions. Annexure A-1 attached with this affidavit gives the present status of those inquiries in respect of those persons who are mentioned in Annexure P-1 of the earlier report. As regards cases mentioned in Annexure P-2, it is stated in this affidavit that the cases other than those mentioned at Sr. No. 2 and 8 have been closed in respect of those officers, as shown in the report. Wherever such a action is contemplated or is still pending, the decision shall be taken within a period of 4 months from today and report be filed in this Court. With these observations, this writ petition is also disposed of.