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2019 DIGILAW 2104 (PNJ)

Sarabjit Singh Verka v. State of Punjab

2019-07-22

HARINDER SINGH SIDHU, RAJIV SHARMA

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JUDGMENT : 1. The petitioner is a practicing lawyer of this Court. He is the Chairman of Free Legal Aid and Vigilance Cell constituted by Amritsar Bar Association. He is also working with NGO Punjab Human Rights Organisation headed by Justice Ajit Singh Bains (Retd.). He has filed various Public Interest Litigation petitions in this Court, including matters relating to illegal hotels near Golden Temple, Amritsar. According to him, the present petition is in continuation of CWP No. 14900 of 2010, in which a series of orders were passed to protect the area around the Golden Temple, also known as the Walled City of Amritsar, from unauthorised construction. On 20.07.2012, it was directed by the Court that in and around the Galiara (corridor) area of Shri Harimandir Sahib, no fresh building plans be sanctioned till further orders. The Court, vide order dated 30.10.2013 observed that the authorities had failed to enforce the law in letter and spirit. The Commissioner and the Senior Town Planner, Municipal Corporation, Amritsar, were directed to be present in the court. Copies of the orders dated 20.07.2012 and 30.10.2013 are Annexures P-l and P-2. An affidavit of the Senior Town Planner, Municipal Corporation, Amritsar, was filed stating therein that the Corporation had started demolition drive on 19.11.2013. They have partly demolished 11 buildings. 31 fresh buildings were being constructed. Notice under Section 269 (1) of the Punjab Municipal Corporation Act, 1976 was issued against the owners. This court was apprised on 25.11.2013 that the disciplinary proceedings qua officers would be finalised within two months. A Committee of three officers was constituted. The first report of the Committee was produced before this Court on 07.05.2014 along with a list of 130 hotels, which were constructed against the bye-laws and against whom, demolition notices were issued. It was also pointed out by the Committee that 21 buildings within the Galiara (corridor) were illegal. Owners of six buildings had obtained stay from the Court and fifteen were still running the premises illegally. Copy of the report is Annexure P-6. Another affidavit was filed by the DCP containing a list of 125 buildings, which violated building bye-laws. The petitioner has also placed on record orders passed by this Court on 02.07.2015, 27.10.2016, 05.12.2016 and 11.04.2019. Owners of six buildings had obtained stay from the Court and fifteen were still running the premises illegally. Copy of the report is Annexure P-6. Another affidavit was filed by the DCP containing a list of 125 buildings, which violated building bye-laws. The petitioner has also placed on record orders passed by this Court on 02.07.2015, 27.10.2016, 05.12.2016 and 11.04.2019. The State of Punjab, in order to escape from the contempt proceedings, as per the averments made in the petition, framed the Act, called the Amritsar Walled City (Recognition of Usage) Act, 2016. The owners were granted one month time for recognition and regularisation of existing usage and violations. This was a one time measure. 2. The objects and reasons of the Amritsar Walled City (Recognition of Usage) Act, 2016 read as under:- PUNJAB GOVT. GAZ. (EXTRA), MARCH 22, 2016 (CHTR 2, 1938 SAKA) 435 STATEMENT OF OBJECTS AND REASONS The Walled City of Amritsar enjoys a place of reverence and heritage. The Walled City has been in existence for over four hundred years, during which properties have been used for considerable length. The rights have come to be vested in people on account of unhindered continuous use and occupation of the property. It has thus necessitated the need to recognize and regularize such existing usage and violations. Accordingly, the present Bill, i.e. The Amritsar Walled City (Recognition of Usage) Bill, 2016 aims to make suitable provisions. Hence this Bill. 3. Since most of the violators failed to apply for compounding under the Act, therefore, the Act was amended in 2017 and 2019. The objects and reasons of the 2017 amendment Act, called the Amritsar Walled City (Recognition of Usage) Amendment Act, 2017 read as under:- PUNJAB GOVT. GAZ. (EXTRA), NOVEMBER 29, 2017 (AGHN 8, 1939 SAKA) 2931 STATEMENT OF OBJECTS AND REASONS The Amritsar Walled City (Recognition of Usage) Act, 2016 was enacted to provide for one time Recognition of Usage in respect of building violations made in commercial establishment within the Walled City of Amritsar and for regulated development by providing public safety, convenience and well being. For achieving the Objects of the Act ibid, it is considered necessary that the applicants should be given more time to submit required information. For achieving the Objects of the Act ibid, it is considered necessary that the applicants should be given more time to submit required information. Accordingly, the proposed bill is aimed to allow the applicants under the Act ibid to submit the required information upto 31.01.2018 and accordingly, enable the competent authority to pass the final order by 31.07.2018. 4. The objects and reasons for carrying out the amendment in 2019 read as under:- PUNJAB GOVT. GAZ. (EXTRA), FEBRUARY 18, 2019 (MAGHA 29, 1940 SAKA) STATEMENT OF OBJECTS AND REASONS The Amritsar Walled City (Recognition of Usage) Act, 2016 was enacted to provide for one time Recognition of Usage in respect of building violations made in commercial establishment within the Walled City of Amritsar and for regulated development by providing public safety, convenience and well being. For achieving the Objects of the Act ibid, it is considered necessary that the applicants should be given more time to submit an application within a period of thirty days from 1st March 2019 i.e. the date of coming into force of this amendment act 2019 thereafter within a period of sixty days applicant shall submit the required information. Accordingly, the proposed bill is aimed to allow the applicants under the Act ibid to submit the application within thirty days from 01.03.2019. Thereafter, the applicant will submit the required information within sixty days and accordingly, enable the competent authority to pass the final order within a period of one year from the date of notification. 5. The State Government has also framed the Rules, called the Walled City Amritsar (Recognition of Usage) Amendment Rules, 2019. 6. In the contempt petition, it was brought to the notice of the Court that even though 214 applications were received for regularisation, not even a single construction was found fit for regularisation in accordance with the Walled City Amritsar (Recognition of Usage) Amendment Rules, 2018. All the applications were rejected. It is in these circumstances that the State Government again carried out amendment in 2019. The fact of the matter is that now the applicants have increased to 352. According to the 2019 amendment, notified on 18.02.2019, the applicants were required to submit application within a period of thirty days from 01.03.2019 for regularisation of unauthorised construction. 7. The land around the Golden Temple was acquired in 1988 for beautification of the same. The fact of the matter is that now the applicants have increased to 352. According to the 2019 amendment, notified on 18.02.2019, the applicants were required to submit application within a period of thirty days from 01.03.2019 for regularisation of unauthorised construction. 7. The land around the Golden Temple was acquired in 1988 for beautification of the same. The unscrupulous elements have raised construction in total defiance of the law. The Punjab Assembly has also passed the Act, called Punjab Regional and Town Planning and Development Act, 1995. The objects of the enactment read as under:- "An Act to make provision for better planning and regulating the development and use of land in Planning areas delineated for that purpose, for preparation of Regional Plans and Master Plans and implementation thereof; for the constitution of a State Regional and Town Planning and Development Board, for guiding and directing the planning and development processes in the State for the constitution of a State Urban Planning and Development Authority. Special Urban Planning and Development Authorities and New Town Planning and Development Authorities, for the effecting and planned development of planning areas and for undertaking urban development and housing programmes and schemes for establishing new towns and for matters connected therewith or incidental thereto." 8. Chapter V deals with acquisition and disposal of land by the authority. Chapter VIII deals with planning areas and planning agencies. Chapter IX deals with regional plans. Chapter X deals with preparation and approval of Master Plans. Chapter XII deals with Town Development Schemes. The control and development along scheduled roads is provided under Chapter XIV. The Government of Punjab prepared the Master Plan for Amritsar vide Annexure P-16. 9. The State Assembly has enacted the Act, called Punjab Municipal Corporation Act, 1976 with following Statement of Object and Reasons and Preamble:- "1. Statement of Object and Reasons Punjab Act 12 of 1994 - The Constitution (74th Amendment) Act, 1992 has been passed by the Parliament with a view mainly to strengthen and revitalise the Municipalities and Municipal Corporations so that they can sub-serve the growing needs of the urban population in towns and cities. Apart from that, it also provides for the steady transformation of areas in transition from rural to urban character by constituting Nagar Panchayats [Article 243]. 2. Apart from that, it also provides for the steady transformation of areas in transition from rural to urban character by constituting Nagar Panchayats [Article 243]. 2. The Constitution Amendment gives broad guidelines for the composition of Municipalities (Article 243 R), for the constitution of Ward Committees (Article 243 S), for reservation of seats & offices (Article 243 T), duration of Municipalities (Article 243 U), disqualifications (Article 243 V), powers and functions of the Municipalities (Article 243 W), power to impose taxes (Article 243 X), State Election Commission (Article 243 ZA read with Article 243 K), a Committee for District Planning (Article 243 ZD) and a Committee for Metropolitan Planning (Article 243 ZE). 3. Article 243 (ZF) inserted by the said Constitution Amendment gives a time of one year for the State Acts relating to Municipalities and Municipal Corporations to be brought in conformity with the Constitution Amendment. 4. In order to bring the Punjab Municipal Corporation Act, 1976 in line with the Constitution Amendment, it is proposed to make the required amendments in the said Act. 5. This Bill seeks to give effect to the above proposals. 6. Preamble - The preamble and aims and objects cannot be used for interpreting the statute. The preamble as well as the aims and objects can be used for the limited purpose of ascertaining the conditions prevailing at the time of legislation and for finding out the enactment by furnishing valuable historical material. The Preamble of an Act is merely intended to indicate the main purpose of the Act and does not cover the entire ambit of Act, the Preamble cannot control the meaning or scope of any Section in that Act and when there is conflict between Preamble and enacting portion, the later shall prevail." 10. Chapter XIV deals with building regulations. Section 258 prohibits building without sanction. Sanction or refusal of building or work is provided under Section 262. Section 269 provides demolition and stoppage of buildings and works in certain cases and appeal. 11. There is a Municipal Corporation in Amritsar. The Corporation has also framed its bye-laws for the manner in which the construction is to be raised. 12. However, the fact of the matter is that despite the provisions of the Punjab Municipal Corporation Act, 1976, and framing of Master Plan for Amritsar, the unauthorised construction has not been checked by the statutory authorities. The Corporation has also framed its bye-laws for the manner in which the construction is to be raised. 12. However, the fact of the matter is that despite the provisions of the Punjab Municipal Corporation Act, 1976, and framing of Master Plan for Amritsar, the unauthorised construction has not been checked by the statutory authorities. The statutory authorities instead of demolishing the unauthorised constructions have encouraged dishonest people to raise the unauthorised constructions hoping that it would be regularised. The Assembly passed the Act, called the Amritsar Walled City (Recognition of Usage) Act, 2016 as a one time recognition of usage in respect of buildings. Section 7 reads as under:- "7. Notwithstanding anything inconsistent contained in the Punjab Municipal Corporation Act, 1976 and the rules, regulations and the building bye-laws made thereunder, the provisions of this Act shall have an overriding effect." 13. The Punjab Municipal Corporation Act, 1976 and the Punjab Urban Development Acts are the special Acts. The Special Act would exclude the General Act. The Amritsar Walled City (Recognition of Usage) Act, 2016 is a General Act. The mandatory provisions of the Punjab Municipal Corporation Act, 1976 and the Punjab Urban Development Acts could not be rendered nugatory or otiose. It is a fit case where the principle of Generalia specialibus non derogant would be attracted. This Court has taken serious view of the manner in which unauthorised construction is going on in and around the Golden Temple corridor. The State and statutory authorities, instead of taking harsh decisions, have come out with the Amritsar Walled City (Recognition of Usage) Act, 2016 to nullify the orders passed by this Court from time to time. It is settled law that basis of judgment can be removed but judgment cannot be nullified by bringing an amendment which is also against the constitutional provisions as well as public policy. It is expected from the State to implement rule of law. Implementation of rule of law is one of the sovereign functions. The enactment of The Amritsar Walled City (Recognition of Usage) Act, 2016 is against the spirit of the Punjab Municipal Corporation Act, 1976, the Urban Development Acts and the Schemes/Plans framed thereunder also. The buildings have been constructed without sanction plans. The number, as per the latest affidavit, was 352. It has come on record that no applicant was found eligible for compounding. The buildings have been constructed without sanction plans. The number, as per the latest affidavit, was 352. It has come on record that no applicant was found eligible for compounding. Ordinarily courts do not stay operation of the enactments, but in the present case, The Amritsar Walled City (Recognition of Usage) Act, 2016 being prima-facie unconstitutional and inconsistent with the Punjab Municipal Corporation Act, 1976 and the Punjab Regional and Town Planning and Development Act, 1995 is liable to be stayed. 14. Notice of motion for 21.08.2019. 15. Accordingly, the operation of the Amritsar Walled City (Recognition of Usage) Act, 2016 and its Amendment Act of 2019 as well as the Rules framed thereunder, called the Walled City Amritsar (Recognition of Usage) Amendment Rules, 2019 is stayed till further orders of this Court. The respondents are directed not to permit any unauthorised construction in and around the Golden Temple corridor. The Deputy Commissioner, Amritsar, is directed to disconnect the water supply and electricity connection of the unauthorised commercial establishments, including hotels in and around the Golden Temple corridor, within 24 hours. 16. The Principal Secretary, Department of Local Bodies, Punjab, shall be personally responsible to comply with the directions issued here-in-above.