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Judgment
Muni Lal Verma, J.—This petition as well as three other petition No. 3721, 4119 and 420 of 1974 have been made against the orders which have been passed by the Assistant Estate Officers, exercising the powers of the Deputy Commissioner, (Respondent 3,) under the Punjab New Capital (Periphery) Control Act, 1952, as amended by the Punjab New Capital (Periphery) Control (Chandigarh Amendment) Act, 1971 (hereinafter referred to as the Act) against the petitioners of these petitions. Since all these four writ petitions involve common questions of fact and law, the same are being disposed or by one judgment.
The circumstances leading to these petitions, as set forth by the petitioners there in, may be briefly stated as under :
Civil Writ No. 4215
The petitioner is owner in possession of land measuring 32 Kanals 9 Marlas, comprised in Khasra No. 14/20/2, situate within the limits of village Burail (hereinafter called the land). This land as well as lands of the petitioners in the other petitions, which are situate within the limits of village-Manimajra, are located within 10 miles from the outer boundaries of Chandigarh. There was a kutcha Gurdwara in the land and it was historical institution, as the battle for liberation of Sirhind had been fought there by Baba Banda Singh Banadur and Baba Baz Singh with the Mughal Emperors. Some time ago, the petitioner had renovated the aforesaid, building of Gurdwara Sahib. On December 4, 1 73, the Deputy Commissioner (Respondent 2) served a notice (Annexure P. 1) on the petitioner under sub-section (2) of section 12 of the Act to restore the land to its original state within six weeks, observing therein that the Gurdwara Shib had been illegally built within the revenue estate which had been declared controlled area. The petitioner sent reply (Annexure P, 2) the said notice on January 21, 1974. Thereafter, the Deputy Commissioner served another notice (copy Annexure P. 3 on the petitioner on March 6, 1974, requiring it to appear before him on March 21, 19/4. Representation on behalf of the petitioner was made on March 21, 1974 and the Assistant Estate Officer (Respondent 3), exercising the powers of the Deputy Commissioner, passed order (Annexure P. 4, hereinafter called the impugned order) on June 22, 1974, directing demolition of Gurdwara Sahib and Nishan Sahib and restoration of the land to its original State within one month, indicating that else the said Gurdwaia Sahib and Nishan Sahib would be demolished and the land would be restored to us original male and the costs of demolition, if incurred by the Department, would be assessed by the Naib-Tehsildar and the same would be recovered as arrears of land revenue from the petitioner. Shri Gurcharan Singh Bedi has sworn affidavit in support of the averments made in this writ petition.
Civil Writ No. 3721
Tara Singh and Subhash Chander petitioners are joint owners of land comprised in held No. 99/19/2, situate within the limits of village-Manimajra. They had constructed two lime-kilns and some ancillary buildings for their residence (hereinafter called the structures) in the said land. On July 18, 1974, the Assistant Estate Officer (Respondent 3), exercising the powers of Deputy Commissioner, passed order (Annexure P. 4, hereinafter called the impugned order), directing demolition of the structures and restoration of me land to its original state within one month, indicating that also the costs of demolition of the structures and for restoration of the site to its original state would be assessed by the Naib-Tehsildar and the same would be recovered as arrears of land revenue. Subhash Chander has sworn affidavit in support of the averments in the petition.
Civil Writ No. 4119.
The petitioners are joint owners of land comprised in fields No. 101/24 and 110/4, 5/1, situate within the limits of village-Manimajra. They had constructed three lime-kilns and some ancillary buildings for their residence (hereinafter called the structures) on the said land. On August I, 1974, the Assistant Estate Officer (Respondent 3), exercising the powers of Deputy Commissioner, passed order (Annexure P. 7, thereinafter called the impugned order) u/s 12(2) of the Act for demolition of the aforesaid structures within one month and for restoration of the land to its original state, indicating that else the costs of demolition of the structures and restoration of the site to its original state would be assessed by the Naib-Tehsildar and would be recovered as arrears of land revenue. Jarnail Singh swore affidavit in support of the averments made in the petition.
Civil Writ No. 4270.
The petitioners had taken land on lease comprised in fields Nos. 100/21/2, 101/25, 110/5/2 and 111/1, situate within the limits of village-Manimajra, and they had erected four lime-kilns, and Some ancillary buildings, such as office room, a verandah on two sides, 3 labour huts etc. (hereinafter called the structures) on the aforesaid-land. On August 9, 1974, the Assistant Estate Officer (Respondent 3), exercising the powers of Deputy Commissioner, parsed order (Annexure P. 10, hereinafter called the impugned order u/s 12(2) of the Act for demolition of the aforesaid structures within one month and for restoration of the land to its original state, indicating that else the costs of demolition of the structures and restoration of the site to its original state would be assessed by the Naib-Tehsildar and would be recovered as arrears of land revenue. Sh. Dina Nath has sworn affidavit in support of averments in the petition.
Aggrieved by the impugned orders, all the petitioners sought writs of certiorari for quashing the impugned orders in their respective petitions, impeaching the same as void, illegal and unconstitutional, on the grounds :--
(a) that there had been non-compliance of the provisions of section 4 of the Act, inasmuch as the plans showing the declared area to be controlled area and signifying therein the nature of the restrictions, had not been deposited in the office of the Deputy Commissioner, and were not available to the public for inspection within 3 months of the publication of the notification u/s 3(1) of the Act;
(b) that there had been even non-compliance of the provisions of section 3 of the Act, inasmuch as the declaration recorded therein had never been published in two newspapers printed in a language other than English, at least three months before the declaration was made by the Government, and no notification had been displayed at the Punchayat Ghar or Patwar Khana of village Burail, and Manimajra, not it was proumulgated by beat of drum in the Villages.
(c) that the Deputy Commissioner and the Assistant Estate Officer (Respondents 2 and 3) had already made up their mind to take action against the petitioners and the opportunity of hearing, afforded to them had been a farce;
(d) that no regular proceedings had been instituted under sub-section (2) of section 12 of the Act and there was no evidence supporting the passing of the impugned order, and it had been passed against the principles of natural justice, equity and good conscience ;
(e) that the impugned orders were discriminatory because no action had been taken against similarly situated properties, including that of Chand Rani mandir ; and
(f) that the impugned order was violative of Article 14 of the Constitution of India and conferred arbitrary power on the Deputy Commissioner.
All the four petitions were contested. Shri M.G. Devasahayam, AIS, Deputy Commissioner, has put in affidavits by way of written statements in this petition as well as in writ petition No. 4270 of 1971 Shri B.D. Dhawan (Respondent 3) has put in affidavits by way of written statements in writ petitions No. 3721 and 4119 of 1974. The facts, that the petitioners were in possession of the lands and the impugned orders had been pissed by Respondent 3 acting as Deputy Commissioner under the Act, were admitted. It was pleaded, inter-alia, that the petitioners had raised the aforesaid structures, which Were required to be demolished by the impugned orders, without obtaining permission from the Deputy Commissioner as required by section 5 of the Act, that the requirements of sections 3 and 4 of the Act had been duly complied with, inasmuch as the notification u/s 3(1) of the Act was duly published and the declaration as required by sub: section (2) of section 3 was also published in the official gazette as well as in the ''Hind Samachar'' and ''Ajit'' the two vernacular papers of Jullundur, and the substance of the notification had also been duly published in the relevant villages, and the plan showing the controlled area and the nature of restrictions applicable to the same had been deposited in the office of the Deputy Commissioner, and that the impugned orders were valid and had been rightly recorded. Jarnail Singh has put in affidavit by way of rejoinder on behalf of the petitioners in writ petition No. 4119 and Dina Nath has sworn affidavit as rejoinder in civil writ No. 4270. Similarly, rejoinder was put in this writ petition.
The main contentions advanced by Shri Narinder Singh, Learned Counsel for the petitioner, and by Shri J.S. Wasu, Learned Counsel for the petitioners in the other three petitions, may be summarised as under :--
That there had been non compliance of the provisions contained in sections 3 & 4 of the Act, as
(a) neither declaration, as required by Section 3, had been published in two newspapers, nor the notification issued under sub-section (2) of section 3 had been displayed at the Panchayat Ghars and Patwarkhanas ;
(b) the plans showing the "controlled area" and the nature of restrictions signified therein had never been displayed in the office of the Deputy commissioner and other places, and were not made available for inspection to the public, within 3 months of the declaration u/s (1) of the Act.
That there had been breach of the provisions of sub-section (2) of section 12 of the Act and of the principles of natural justice, as no real opportunity had been afforded to the petitioners against the impugned orders before passing of the same and the Deputy Commissioner had already made up his mind to pass the said order.
That there was neither any material nor evidence which could justify the making of the impugned order.
That the impugned orders were discriminatory as no similar action had been taken against similarly situated properties.
The contention that the impugned orders were discriminatory was strongly controverted and in reply to the other contentions it was maintained by Sarvshri Anand Swarup and R.K. Chhibbar that provisions contained in sections 3 and 4 of the Act were duly complied with and the impugned orders had been passed after affording due opportunity to the petitioners and the same were warranted by the facts and circumstances of the case.
The Act came into force on 16th January, 1953. Chandigarh then formed pan of District Ambala and was within sub Tehsil Kalka attached to Tehsil Kharar in sub-division Ropar. The provisions contained in sections 3, 4, 5, 6, 7, 11 and 12 of the Act point out that at least 3 months before declaring the area to be "controlled area", the Government was required to publish a notification in the official gazette and in at least two newspapers printed in a language other than English that it proposed to make such a declaration, and copies of that notification or its substance had to be published by the Deputy Commissioner in such manner as may be prescribed at his office and in the area desired to be controlled (vide sub-section (2) of Section (3). After the expiry of 3 months from that notification, the Government was to declare by notification in the official gazette the controlled area vide sub-section (1) of section (3). Within three months of the said declaration of "controlled area" under sub-section (1) of Section 3, the Deputy Commissioner was to deposit at his office and at such other places as he considered necessary, plans showing the area declared to be a "controlled area" signifying therein the nature of the restrictions applicable to the said controlled area (vide sub-section (1) of Section 4). The said plans were to be in the prescribed form and available for inspection to the public free of charge at all reasonable times (vide sub-section (2) of Section 4). No person could 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 (vide Section 5). For obtaining the requisite permission, an application in writing had to be made to the Deputy Commissioner in such form and containing such information as might he prescribed. The Deputy Commissioner could grant or refuse to grant the permission applied for (vide Section 6 of the Act). The order of the Deputy Commissioner granting or refusing to grant permission was appealable to the Commissioner (vide Section 7). No land within the controlled area, except with the permission of the Government, could be used for the lime-kiln except in accordance with the conditions of a licence to be granted by the Deputy Commissioner. The said licence could be renewed by the Deputy Commissioner (vide Section 11). A person who erects or re erects any building or makes or extends any excavation or lays out any means of excess to a road in contravention of the provisions of Section 5 or in contravention of any conditions imposed by an order u/s 6 or 7 or uses any land in contravention of the provisions of sub-section (1) of Section 11, renders himself liable to a fine extending to Rs. 500/-, with a further fine extending to Rs. 50/- per day (vide sub-section (1) of Section 12), and in addition to it the Deputy Commissioner could require such a person to restore the land or the building, as the case may be, to its original state within 6 weeks of the order and may, after making such enquiry as he considers necessary and after giving such person an opportunity of being heard in the matter, himself take such measures as may appear to him to be necessary to give effect to his order and the costs of such measures shall be recoverable from such person as arrear of land revenue (vide sub-section (2) of Section 12).
It has to be kept in view that it was in the year 1953 when the State Government declared "controlled area" and the Deputy Commissioner, Ambala, had acted under sections 3 and 4 of the Act and it is now 20 years thereafter That the matter with regard to publication of the notifications and the deposit of plans is being agitated. The records from the office of the Deputy Commissioner, Ambala, were brought to the office of the Deputy Commissioner, Chandigarh, after reorganisation of the State of Punjab, i.e., alter November, 1966. Under these circumstances, allowance has, in my opinion, to be made for the difficulties with which the respondents are faced to prove the compliance with the provisions contained in Sections 3 and 4 of the Act with perfect exactitude after the expiry of 20 years and, therefore, the introduction of presumptive links would be permissible. The written statements filed by Shri M.G. Devasahayam, Deputy Commissioner, in Civil Writs No. 4215 and 4270 of 1974, and by Shri B.D. Dhawan, Assistant Estate Officer, who had been duly appointed to perform all the functions of the Deputy Commissioner under the Act (vide clause (2) of Section 2 of the Act), in Civil Writs No. 4119 and 3721 of 1974, contained, and the records produced and shown by the Learned Counsel appearing for the respondents confirmed, that notification as required by sub-section (2) of Section 3 of the Act was duly published in the official gazette on February 27, 1953, and was also published in two issues of each of the newspapers "Hind Samachar" and "Ajit" of Jullundur in the month of April, 1953. Copies of the said notification were sent to the Deputy Commissioner, Ambala, Sub-Divisional Officer, Ropar, Tehsildar, Kharar and Naib Tehsildar, Kalka, in the month of April, 1953, for wide publicity in the area, including the affected villages. It is legitimate and reasonable to infer that copies of the aforesaid notification must have been exhibited at conscious places in the tehsil and district headquarters and necessary wide publicity must have been given by beat of drum in the villages. The contention that since the aforesaid notification had not been displayed at Panchayat-ghars and Patwarkhanas it cannot be said that it had been duly published, is not tenable because it has not been shown that the requirement of display of the said notification at the Panchayat-ghars and Patwarkhanas had been prescribed by any rule in the year 1953. The requirement of displaying the aforesaid notification at all Patwarkhanas in the controlled area was, for the first time, prescribed by rule 3 of the Punjab New Capital (Periphery) Control Rules, 1959, published in the Punjab Government Gazette dated May, 4, 1959, and it was on May 20, 19 9, that by another notification it was required that such notification should also be displayed at all Panchayat-ghars. Since the aforesaid rule 3 came into force six years after publication of the notification, referred to above, and was not in force when it the notification was published, it cannot be maintained that non-display of the said notification at Panchayat-ghars and Patwarkhanas could render its publication invalid.
The respondents maintained in the written statements that the plan showing the declared area had been deposited in the office of the Deputy Commissioner and had been made available to the public for inspection. The record produced and shown on behalf of the respondents indicated, and letter dated August 24, 1954, from the Estate Officer, Chandigarh, to the Under Secretary to Government, Punjab, Capital Project, Chandigarh (copies annexed with the written statements) goes a long way to show that the plan snowing the controlled area, together with the restrictions applicable, was duly deposited in the office of the Deputy Commissioner. However, the exact date when the said plan had been deposited could not be correctly discerned from the record. The least that can be said in the circumstances of the case is that the said plan had been deposited in the office of the Deputy Commissioner, Ambala, some time in the month of August, 1954. The record produced and shown, further pointed out that copies of the plan had also been prepared, and it is not unreasonable to infer that the same had been deposited in other places just like tehsils etc as was considered necessary by the Deputy Commissioner. A plan allegedly deposited in the office of the Deputy Commissioner was also shown at the time of arguments. From the contents and nature of the said plan, it can be reaonably inferred that it might have been deposited in the office of the Deputy Commissioner as indicated in the letter dated August 24, 1954, from the Estate Officer, Chandigarh, to the Under Secretary to Government, Punjab, Capital Project, Chandigarh. So, though it may be said that there had been belated deposit of the requisite plan in the office of the Deputy Commissioner, yet it cannot be maintained that there had been non-deposit of the said plan. The question that arises is as to whether the belated deposit of the said plan in the office of the Deputy Commissioner vitiates the whole proceedings initiated and taken respecting the declaration of the controlled area. The object, as is clear from the statement of Objects and Reasons published in the Punjab Gazette Extraordinary dated October 24, 1952 was to ensure healthy and planned development of the city of Chandigarh and to prevent growth of slums and ramshackle construction on the land laying on its periphery Therefore in my opinion, the purpose of deposit of plan, showing the controlled area along with the nature of restrictions applicable to it, was to inform the public about the extent of the controlled area and also the restrictions applicable to it. True, sub-section (1) of Section 4 of the Act required the deposit of such plan with the nature of restriction applicable in the office of the Deputy Commissioner within 3 months of the declaration made under sub-section (1) of Section 3 of the Act. But, in my opinion, the said provision prescribing the period of 3 months from the declaration made under sub-section (1) of Section 3 of the Act for deposit of the plan along with the nature of restrictions in the office of the Deputy Commissioner is directory and not mandatory. Therefore, I am of the view that non-deposit of plan, showing the controlled area etc., in the office of the Deputy Commissioner may provide a basis for contending that since provisions contained in Section 4 of the Act have not been complied with, no action can be legally taken u/s 12 of the Act for contravention of the provisions u/s 5 of the Act, but in the case of belated deposit of such plan, i.e., beyond a period of 3 months as provided in Section 4(1) of the Act, it would not arm the offender with such a contention. The utmost than can be contended in the case of belated deposit of plan etc., in the office of the Deputy Commissioner is that no action u/s 12 of the Act can be taken or is permissible against the construction, which had been raised during the period prior to the aforesaid belated deposit of plan etc., in the office of the Deputy Commissioner. I am, therefore, of the view that the belated deposit of the plan in the office of Deputy Commissioner in or about the month of August, 1954, would be, by itself, insufficient to render the proceedings relating to declaration of the controlled area, invalid, though it may furnish a ground for claiming protection to the constructions raised by the persons in the controlled area without the permission of the Deputy Commissioner during the period prior to the deposit of the plan in his (Deputy Commissioner''s) office. So, I am of the opinion that provisions of Section 4 of the Act have been substantially complied with, although there had been belated deposit of plan etc., in the office of the Deputy Commissioner.
True, Respondent No. 3 remarked in para 3 of the order passed by him on March 13, 1974, in case No. 102 of 1973, regarding Chuna Bhathi of M/s. Ved Parkash and Ram Sarup of Manimajra, that the plan indicating the controlled area had been deposited in the office of the Deputy Commissioner in August, 1964, and the same was available for inspection by the public. Relying on the said remarks, it was argued on behalf of the petitioners that the Said plan had been deposited in the office of the Deputy Commissioner in the year 1964. Firstly, I have a feeling that the year ''1964'' appears to have been wrongly mentioned in the said order for the year ''1954 because, as discussed above, the letter dated August 24, 1954, of the Estate Officer, Chandigarh to the Under Secretary to Government, Punjab, referred to in the preceding para, shows that the said plan had been deposited in the month of August, 1954. Even otherwise, if it is taken for the sake of argument though not conceding that the said plan had been deposited in the office of the Deputy Commissioner in the month of August 1964, it would be of no help to the petitioners, because, as remarked above, the belated deposit of the plan in the office of the Deputy Commissioner would not render the whole proceedings regarding declaration of controlled area invalid and the records of all the four cases go a long way to show that the objected structures had been raised by the petitioners after the month of August, 1964.
The facts of Nand Lal v. The Estate Officer and others (1966) 68 PLR 947, relied on by the Learned Counsel for the petitioners in support of their contention that the validity of the impugned orders was questionable because of non-compliance of the provisions of sub-section (1) of Section 4 of the Act, were different. In that case notification u/s 3 was published on August 16, 1963. On receipt of notice issued by the Deputy Commissioner u/s 12 of the Act, Nand Lal pleaded that he had completed the construction of the house by the end of July, 1962 i.e., before the issuance of the notification u/s 3 of the Act. He further alleged that the plan had been deposited in the office of the Deputy Commissioner as required by sub-section (1) of Section 4 of the Act. There was no assertion on behalf of the Government that the said plan had been deposited in the office of the Deputy Commissioner. No plan purporting to have been deposited in the office of Deputy Commissioner had been produced. Therefore, that was a case of non deposit of the plan and not of helated deposit of the same. Therefore, non-deposit of the plan in the Deputy Commissioner''s office, as required by sub-section (1) of Section 4 of the Act, was also considered a ground for stricking down the impugned order of the Deputy Commissioner, issued u/s 12 of the Act, although the main ground on which the said order was struck down was that no opportunity had been afforded to Nand Lal to prove his cause before making the impugned order in that case. As would be presently seen hereunder, the petitioners in the cases in hand had been given ample opportunity fur protecting their rights before the impugned orders had been recorded.
The impugned order contains specifically that the petitioner in this petition had raised the constructions in the land in the beginning of the year 1974. The said finding was recorded by Respondent 3 on evidence, including the revenue record, before him. It was never pleaded before him that the objected structures had been raised or were in existence prior to August, 1954. In Civil Writ No. 3721, the petitioners did not disclose the age of the structures to a notice issued to the petitioners u/s 12 of the Act. Tara Singh gave reply (Annexure P. 2), stating that he would vacate the land and would not claim anything for removing the structures. Therefore, the record gives an impression that the structures of Civil Writ No 3721 were raised in or about the year 1972. It is important to note that the petitioners did not state any date when they had raised the structures and they did not allege before Respondent No. 3 that the said structures had been raised some time earlier than 1954. In Civil Writ No. 4119, Jarnail Singh, one of the petitioners, stated in his reply (Annexure P. 5), given to the notice issued by the Deputy Commissioner on December 5, 1973 u/s 12(2) of the Act, that the structures had been raised towards the close of the year 1971 and in the beginning of the year 1972. The petitioner in Civil Writ No. 4270 did not disclose any date when they raised the structures. It was never maintained by them that the structures had been raised by them prior to August, 1954.
It has not been alleged, much less shown, that the petitioners or any one of them in either of the four petitions had obtained permission of the Deputy Commissioner for raising the structures complained of. It is, thus, evident that the structures complained of had been raised during the recent years without the permission of the Deputy Commissioner and, therefore, in contravention of Section 5 of the Act. On the said state of affairs, Respondents 2 and 3 were well within their powers to take action for removal of the structures complained of.
In this petition (Civil Writ 4215) Respondent 2 issued order (copy Annexure P. 1) on December 4, 1973, requiring the petitioner to restore the land to its original state within six weeks. The petitioner submitted objections (copy Annexure P. 2) to the said order. Thereafter, Respondent 3 issued notice (copy Annexure P. 3), stating that since the petitioner failed to comply with the order dated December 4, 1973, it (petitioner) could appear before him on March 21, 1974, at 11.30 A.M. in his office for hearing. The impugned order dated June 22, 1974 (copy Annexure P. 4) contains that Shri Gurcharan Singh Bedi, General Attorney of the petitioner, appeared and made representation before Respondent 3 on that day, i.e. March 21, 1974. He (Respondent 3) had inspected the spot in the presence of Shri Gurcharan Singh Bedi. Having considered the material, including the revenue record, Respondent 3 came to the conclusion that the petitioner had raised the structures without the permission of the Deputy Commissioner within the last few months and passed the impugned order. In Civil Writ No. 3721, Respondent 2 gave first notice (copy Annexure P. 1) on January 27, 1973, to Tara Singh and Subhash Chand, indicating that they had raised structures illegally and required them to appear before him on February 19, 1973, at 10 A.M. in his office to show cause as to why action be not taken u/s 12 of the Act. They gave reply (copy Annexure P. 2) to the said notice Thereafter Respondent 2 passed an order (copy Annexure R-11) on December 5, 1973, requiring them (Tara Singh and Subhash Chand) to restore the land to its original state within six weeks, stating that the structures were unauthorised constructions. Then on June 3, 1974, Respondent 3 issued notice (copy Annexure P. 3) to Tara Singh and Subhash Chand, stating that they had failed to comply with the aforesaid order dated December 5, 1973 (copy Annexure R. II) and, therefore, to appear before him on June 13, 1974 at 10 A.M. in his office for hearing. The impugned order (copy Annexure P. 4) contains that Tara Singh appeared before Respondent 3 and represented his case. Respondent 3 then inspected the spot in presence of Subhash Chand on July 11 1974, and thereafter on July 18, 1974, he (Respondent 3) after due consideration of the matter passed the impugned order. In Civil Writ No. 4119, Respondent 2 issued notice (Annexure P. 2) to the petitioners of that petition on March 8, 1973, requiring them to appear before him on April 2, 1973, at 10 A.M. to show cause as to why any of the action should not be taken u/s 12 of the Act since the construction of the structures was considered illegal. The petitioners gave reply (copy Annexure P. 3) to the said notice. Thereafter, Respondent 2 passed order on December 5, 1973 (copy Annexure P. 4) requiring the petitioners to restore the land to its original state within six weeks. The petitioners made representation (copy Annexure P. 5) against that order on January 8, 1974. They were again summoned for hearing and it was after hearing their counsel as well as Jarnail Singh petitioner and due consideration of the case that Respondent 3 passed the impugned order. In Civil Writ No. 4270, Respondent 2 issued order (copy Annexure P. 4) to the petitioners of that petition on December 12, 1973, for restoration of the land to its original state, indicating that the structures had been illegally raised. Thereafter, on June 3, 1974, Respondent 3 gave notice (copy Annexure P. 5) to the aforesaid petitioners to appear before him on June 13, 1974 at 10 A.M. and put forward their case. The petitioners gave reply (copy Annexure P. 6) to the said notice on July 27, 1974 Dina Nath and Barkha Ram petitioners also appeared before Respondent 3 and, as is clear from the impugned order, their counsel argued their case before Respondent 3. So, it was after the said hearing and due consideration of the case that Respondent 3 passed the impugned order.
At the time when Nand Lal''s case (supra) was decided, the Act suffered from the defect that it did not provide for any hearing to the offender before passing of the order u/s 12 (2) of the act and it was for that reason and because Nand Lal had not been given any opportunity to prove his defence that he had constructed the house before modification including village-Pinjore in the controlled area had been issued, that the order of the Deputy Commissioner directing the demolition of his house had been struck down. The said defect has, however, been removed by the Punjab New Capital (Periphery) Control (Chandigarh Amendment) Act 1972, which has suitably amended sub-section (2) of Section 12 of the Act by providing that it would be after making such enquiry as is considered necessary by the Deputy Commissioner and after giving the offender an opportunity of being heard in the matter that he would himself take such measures as may appear to him to be necessary to give effect to the order passed by him, requiring demolition of the unauthorised structures in view of the aforesaid amendment of sub-section (2) of Section 12 of the Act and the fact, as indicated above, that the petitioners in all the four petitions were not only afforded opportunity of hearing but had also been actually heard by Respondent 3, the decision in Nand lal''s case (supra) can be of no assistance to them (the petitioners). It, thus, follows that Respondent 3, had recorded the impugned orders in accordance with the provisions of Section 12 (2) of the act and there had not been any violation of the principles of natural justice as the petitioners had been provided effective opportunity for putting up the cases before passing the impugned orders.
The impugned orders, as remarked above, point out that Respondent 3 gave due consideration to the circumstances of the case and the material and evidence, whatever was before him, before passing the same. It is, therefore, difficult for me, in the circumstances of the case, to agree with the contention that Respondent 3 had neither material nor evidence for recording the impugned orders. Further, I do not think that while exercising the writ jurisdiction, I can examine the case regarding the adequacy or sufficiency of the evidence or material on the basis of which Respondent 3 had decided to pass the impugned orders.
As is clear from para 12 (vi) of the written statement and copy of the order dated May 24, 1974 (Annexure R-11) in this petition (C.W. 4215), an application for permission u/s 6(2) of the Act had been made by Miss Kalayan Mai alias Saint Chand and Respondent 3, after due consideration of her case, granted the necessary permission. In this petition, there is nothing to show, and it was not represented at the time of arguments, that the petitioner had made any such application u/s 6 (2) of the Act. Therefore, the plea that there had been discrimination in recording the impugned order in this petition is untenable. In para 18(xii) of the written statement in Civil Writ No. 4270, it was explained that permission to construct lime-kiln had been granted to Snowline Industries, because the land, where the said limekiln was to be constructed, fell within the Brick-kiln Zone and it was the policy to grant such permission. Since the land where the petitioners of the aforesaid petition raised structures did not lie in tie Brick-kiln Zone, necessary permission to construct lime-kin had been declined to them. In the rejoinder, Dina Nath petitioner had simply stated that there was no Brick-kiln Zone under the Act or under the Rules framed thereunder, and the land of Shri Kesho Ram, the proprietor of Snowlime Industries, was very near to the land of the petitioners. The exact distance between the said two lands was not, however, given There appears nothing wrong if Respondents 2 and 3 have demarcated some land for running brick or lime-kilns and do not allow to run the same in other lands. Such 3 policy of demarcating land for running lime kilns rather reads consistent with the object for which the Act had been enacted. Therefore, it cannot be said that the land of the petitioners and the land where the limekiln of Snowline Industries is being worked, are similarly located. It may be noted that it has also been explained in para 18(xii) of the written statement that the permission to Lekh Ram to construct rooms had been granted by the Deputy Commissioner on a misconstruction of Section 6(6) of the Act on the ground that 3 months had expired after making of the application for permission under sub-section (1) of Section 6 of the Act, but permission for construction of lime kiln had, been declined. Further, there is nothing to show that the land of the petitioners and the land of Lekh Ram, where he is alleged to have constructed the lime kiln, are similarly situated. Though in Civil Writs 4119 and 3721, a general allegation was made that the impugned orders were discriminatory, but no specific instances were cited, which could support the said allegation.
It, thus, follows from the discussion above that the contentions raised by the Learned Counsel for the petitioners are without substance and overrule the same.
The plea that Section 12 of the Act was violative of Article 14 of the Constitution, because it provided two remedies, was, in view of the decision in Sham Rattan Newar and another v. The State of Haryana, abandoned and, in my opinion, rightly. The plea that Section 6 of the Act is ultra vires of Article 14 of the Constitution, as it provided untrammelled power to the Deputy Commissioner, was not pressed. Further, 1 find that Section 7 provides an appeal to the person aggrieved by the order passed by the Deputy Commissioner u/s 6 of the Act.
In the result, I find that none of the impugned orders suffers from any infirmity and, in my opinion, the same had been validly recorded. So, this petition as well as the other 3 petitions are without merit and must fail. Consequently, I dismiss this petition as well as Civil Writs 3721, 4219 and 4170 of 1974, but with no order as to costs.