TaxTMI 
TaxTMI 
2012 (3) TMI 673
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....1. The permissibility of a housing project proposed to be set up by the respondents in the name of Tata Camelot Housing Colony (Tata Housing Colony) is the core issue that has been raised in the present public interest litigation. The petitioner, who is an advocate by profession, has raised the aforesaid challenge on several grounds including what has been perceived to be an apparent conflict between the project and the vision of Mon Lee Corbusier, the architect of the planned city of Chandigarh. The project, according to petitioner, is in violation of the provisions of the Punjab New Capital (Periphery) Control Act, 1952 (hereinafter referred to as the 'Periphery Control Act'), as the various permissions and sanctions under the said Act which would enable commissioning/launching of the said project had not been obtained despite which advertisements have been issued proposing to "sell space" in the proposed housing colony. The petitioner contends that the project is not authorised under the provisions of the Environment (Protection) Act, 1986, inasmuch as, the report of the State Experts Appraisal Committee (Annexure P-9) states that the project lies in the eco sensitive and protec....
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....ate to mention the somewhat conflicting stand of the parties with regard to the present stage of the applications filed under the provisions of the Environment (Protection) Act as well as the Wild Life (Protection) Act. While the petitioner, who is supported by the respondent No.6-Chandigarh Administration, asserts that necessary sanction/permission under both the Acts have been refused by orders passed by the competent authorities, the promoters of the project contend to the contrary. The facts, as unfolded before us, indicate that against the refusal of sanction under the Environment (Protection) Act, the respondents have sought a review of the order on the ground that the findings arrived at, which have formed the basis of the refusal, are ex-parte. No order in the review matter has been passed by the competent authority, perhaps, because of the interim order passed in the PIL which has been clarified by the Hon'ble Supreme Court by order dated 31.1.2012 permitting the concerned authority under the different statutes governing the matter to exercise their respective jurisdictions in accordance with law. Insofar as the Wild Life (Protection) Act is concerned, it appears that the ....
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....to go ahead with the project. Learned counsel for the petitioner has also contended that the proposed project, if allowed to continue, will destroy the pristine ecology and environment of the area in as much as the said project is in close proximity of Sukhna Wildlife Sanctuary and also within the catchment area of Sukhna Lake. Learned counsel has also contended that the project will do violence to the edict of the city of Chandigarh as laid down by its planner and designer, the noted French Architect Mon Lee Corbusier, and will also undermine the city's claim to heritage status which claim is presently pending consideration by the concerned world body. 7. Shri Sanjay Kaushal, learned Standing Counsel for the UT Administration has supported the case of the petitioner on the points urged on behalf of the petitioner and on certain additional points. According to Shri Kaushal, the project runs counter to the vision of the architect of the city of Chandigarh to keep the northern area and its periphery free from any construction or structure which would obstruct an unhindered view of the Shivalik Hills. Emphasising on the details of the project, Shri Kaushal has submitted that such an o....
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....from the outer limit of one kilometre from the secretariat within which no high-rise building is permitted. The master plan, therefore, is a mala fide exercise of power vested in the respondents. 8. In reply, Shri L.M. Singhvi, learned senior counsel appearing for the respondent No.9 has contended that the present public interest litigation is not a bona fide exercise. On the contrary, according to Shri Singhvi, it is pre-mature and obstructive because clearances by different statutory authorities are still to be finalised. Yet, the public interest litigation has been filed which, if allowed, would pre-empt the authorities from deciding what falls within their exclusive statutory domain. Shri Singhvi has also contended that the public interest litigation suffers from delay and laches, inasmuch as, the master plan was notified in the year 2009 and before the notification was published objections were invited; neither the petitioner nor the Union Territory Chandigarh filed any objections. 9. Continuing, Shri Singhvi has argued that the provisions of the Periphery Control Act and the requirements prescribed thereunder would be completely ousted in view of the 1995 Act. Even assu....
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....pported the arguments advanced by Shri Singhvi and has refuted the fact that the site falls within the catchment area of Sukha Lake. Shri M.L. Sarin, learned senior counsel appearing on behalf of the Sarin Memorial Legal Aid Foundation (impleaded as a party) has supported the arguments made by the learned counsel for the PIL-petitioner and Shri Kaushal, learned counsel for the Union Territory Administration besides pointing out the fact that the site is in the catchment area of Sukhna Lake as proved and established by the maps prepared by the Survey of India. Construction of the project, therefore, would require due clearance under the Environment (Protection) Act which has been refused. 11. Having taken note of the contentions advanced on behalf of the respective parties we may now take note of the relevant provisions of the two statutory enactments that will require our consideration as well as the relevant details of the Periphery Policy. 12. The relevant provisions of the Periphery Control Act may first be noted: - "1. Short title, extent and commen cement,-(1) This Act may be called the Punjab New capital (Periphery) Control Act, 1952. (2) It e....
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....se and the interest of the general public. (4) The Deputy Commissioner shall notrefuse permission to the erection or re-erection of a building, if such building is required for purposes subservient to agriculture, nor shall the permission to erect or re-erect any such building be made subject to any conditions other than those which may be necessary to ensure that the building will be used solely for agricultural purposes. (5) The Deputy Commissioner shall notrefuse 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 be impose any conditions in respect of such erection or reerection 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 threemonths after an application under subsection (1) has been made to the Deputy Commissioner no order in writing has been passed by the Deputy Commissioner, permission shall, without prejudice to ....
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....2) of section 3 of the Punjab New Capital (Periphery) Control Act, 1958 (Punjab Act I of 1958) a notification No.852-53/IV/1182, dated the 27th February 1958, published in the official Gazette, as well as in the newspapers printed in a language other than English, stating that Government proposed to declare the area comprised in the revenue Estate of the villages specified in the Schedule hereinunder appearing and located in Tehsil Kharar, District Ambala, as controlled area for the purposes of the said Act for the information of all to whom it may concern; And whereas publication thereof in the area declared to be controlled has been made in the prescribed manner; And whereas the period of three months after the date of the publication of the said notification before making the declaration under subsection(1) of Section 3 of the said Act has expired; And whereas no objections against the proposal of the Government have been received; Now, therefore, in exercise of the powers conferred by subsection(1) of section 3 of the said Act, the Governor of Punjab is hereby pleased to declare that the area comprised in the Revenue Estate of the villages sp....
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....ns of the Periphery Control Act. The salient features of the periphery policy may be extracted hereinbelow:- "1.1 The Chandigarh Periphery Controlled area was created with the twin objectives of ensuring a planned future expansion of the New Capital City and to prevent mushrooming of unplanned construction around it. The Punjab New Capital (Periphery) Control act, 1952 accordingly aimed at regulating the use of land and preventing unauthorized and unplanned urbanization in a 16 kilometre periphery. 1.2 Since then, planned satellite townships of SAS Nagar (Mohali) and Panchkula have come up in the Periphery in addition to a large cantonment. Further in 1990, the State Government declared an area of 10,000 Acres near Dera Bassi, falling within 23 villages of Patiala district, to be a Free Enterprise Zone (FEZ), where the setting up of industries was to be permitted. 1.3 Notwithstanding the regulatory framework, enforcement has been patchy. Appreciating the emerging ground realities, the Punjab Government had in 1998 decided to permit an across-the-board regularization of all unauthorized constructions, which had already come up within the Periphery up to an....
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....ght of the issues brought out in the foregoing paragraphs, the broad policy framework within which the Committee approached the entire issue of controlling the periphery of Chandigarh are enumerated below:- a) Housing for the increasing population ofthe city is perhaps the most urgent requirement that has to be provided for. In that context, a realistic view has to be taken of existing unauthorized structures. Policy also needs to cater for the normal growth of village populations as well as migration from outside specially of persons from economically weaker sections. b) It is necessary also to take into accountthe increased attraction of the city and its environment as an investment destination." Some of the recommendations made by the Committee would also be necessary to be referred and therefore, are extracted here below:- "4(b) Housing Schemes in the Periphery,With only limited planned urban areas available in the cities of Chandigarh, SAS Nagar and Panchkula and the growing demand for housing, it was noted that those who could not afford shelter in these urban areas, found place on the fringes of the city, usually in the adjoining settlements/vil....
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....tty commercial needs of the existing and future population of a village. However, charges for change of land use should be levied on prescribed rates, except in the case of bonafide residents. No industry should be permitted in such area. Similarly, formal colonization shall also not be permitted in the extended "abadi" area on the pretext of this recommendation alone. With these caveats, the Committee proposes to allow the village "Abadi" area extension by 60%, subject to a minimum of 50 metres and maximum of 100 metres in radial length from the 'phirni'. However, where the existing Abadi Deh or a part thereof is an area which forms a part of the rural/agriculture and afforestation zone of the Outline Master Plan/Draft Comprehensive Master Plan/Comprehensive Master Plan prepared under the Punjab Regional and Town Planning & Development Act, 1995, the extent of such area shall be limited to 50 metres. Permitting construction in the notified forest area shall be limited to 50 metres. Permitting construction in the notified forest areas falling in these villages would, of course, be subject to due approval as regards change of land use. No permission should, however, be gran....
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....ire region. Nevertheless, pending finalization of the latter, the Committee recommends that limited change of land use may be permitted as per the recommendations contained in this Report. Even though existing constructions have been proposed to be regularised on purely humanitarian grounds, the Committee has strongly recommended a zero tolerance enforcement and regulatory regime, in the post-Policy phase. However, enforcement of the regulatory regime would only be sustainable in the long run if total Area Planning of the Periphery is taken up in right earnest and brought to its logical conclusion at the earliest. The prescription proposed by the Committee is to be viewed as a comprehensive package, which needs to be comprehensively implemented. The Committee sincerely hopes that it would have addressed the concerns of all the stakeholders in a judicious, balanced and practical manner. It is now for the State Government to consider, approve and implement both the regulatory and development aspects of this policy in prescribed time frames." Annexure "A" of the said policy refers to the guidelines for permitting planned and organized residential devel....
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....les, 1996 including all statutory and town planning norms, under the Punjab Apartment and Property Regulation Act, 1995 shall apply. (b) Compliance with the Master Plans, including any notified draft Master Plan would also be necessary." 16. The Periphery policy would indicate a new thinking as regards planned growth and development in the peripheral areas of Chandigarh which was dictated by the changing times. The ever increasing demand for housing in and around Chandigarh received the due attention of the Committee and planned growth in this specific area is visualised by the policy document which extends even to construction of high rises in accordance with the plans as may be drawn up under the 1995 Act. 17. It would also be prudent to refer to the relevant provisions of the 1995 Act, at this stage, which read as follows: "No. 11-Leg./95. - The following Act of the Legislature of the State of Punjab received the assent of the President of India on the 24th May, 1995, and is hereby published for general information :- An Act to make provision for better planning and regulating the development and use of land in planning areas delineated for that ....
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....d the use of building, structures and land. (2) Subject to the provisions of the rules made under this Act for regulating the form and contents of the Outline Master Plan, any such plan shall include such maps and such descriptive matters as may be necessary to explain and illustrate the proposals in the Outline Master Plan. (3) As soon as after the Outline Master Plan has been submitted to the Board under subsection(1), but not later than such time as may be prescribed, the board shall direct the Designated Planning Agency to make such modifications in the Outline Master Plan as the Board thinks fit and thereupon the Designated Planning Agency shall make the modifications accordingly. (4) The Board shall, after the modifications, if any, directed by it have been made under subsections (3), give its approval to the Outline Master Plan. 71. Draft Comprehensive Master Plan.- (1) As soon as the Outline Master Plan is approved by the Board under Section 70, but not later than two years after the approval of the Outline Master Plan or within such time as the State Government may from time to time extend:- (a) where the Designated Planning Agency is a ....
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....provement; (v) area reserved for public buildings and institutions and for new civic development; vi) areas for future development and expansions and areas for new housing; (vii) amenities, services and utilities. (vii-a) protection, preservation and conservation of heritage site including regulation of heritage site and the manner in which development, affecting heritage site or its vicinity, shall be carried out; (viii) all such matters as may be prescribed or as may be directed by the Board to be indicated, defined and provided for; (c) include zoning regulations to regulate within each zone the location, height, number of storeys and size and number of buildings and other structures, open spaces and the use of buildings, structures and land; (d) indicate the stages by which, the plan proposals are proposed to be carried out together with financial implications of each stage. (e) indicate, define and provide for- (i) all such matters including the planning standards, gross and net densities and guiding principles as the Designated Planning Agency may consider expedient to be indicated, defined and prov....
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....o the extent the proposals in the Comprehensive Master Plan are at variance with the Outline Master Plan. 76. Amendment of Master Plan.- At any aftertime after the date on which the Master Plan for an area comes into operation, and atleast once after every ten years, after that date, the Designated Planning Agency shall after carrying out such fresh surveys as may be considered necessary or as directed by the Board, prepare and submit to the Board, a Master Plan after making alterations or additions as it considers necessary.(2) The provisions of Sections 73,74 and 75 mutatis mutandis as for as may be possible, apply to the Master Plan submitted under subsection (1). .... .... .... .... 78. Master Plan of site of New Town.- After the designation of a site for a new town and after the designation of a Planning Agency for the same, the Designated Planning Agency shall prepare a Master Plan for the new town and the provisions of sections 70 to 75 shall mutatis mutandis apply to such a Master Plan. 79. Use and development of land to be in conformity with Master Plan.- After the coming into operation of any Master Plan in any area, no p....
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....fore, rightly takes into consideration the changing ground realities which are never static like shifting stands. The provisions of the 1995 Act, the Periphery Control Act and the Periphery Policy converge on the need for a planned integrated development of the city, its periphery and its adjoining areas. 21. We would further like to emphasise that the Periphery Control Act lays down that the Act will apply to that area of the State of Punjab which is adjacent to and is within a distance of 10 miles on all sides from the outer boundary of the land acquired for the capital of the State at Chandigarh. The term "adjacent to" would necessarily imply an area within 10 miles of the boundary and also beyond it. Any other interpretation can result in horrendous situation where there is planned growth within an area of 10 miles but immediately beyond the said limit there is unplanned development. We, therefore, do not see any conflict in the application of the two statutes to the areas that fall in the periphery of Chandigarh and immediately beyond it. Rather we are of the view that the Periphery Control Act as well as the 1995 Act should be given strict effect to ensure regulated develo....
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....cannot abdicate the natural resources and convert them into private ownership or for commercial use. The esthetic use and the pristine glory of the natural resources, the environment and the ecosystems of our country cannot be permitted to be eroded for private, commercial or any other use unless the courts find it necessary, in good faith, for the public goods and in public interest to encroach upon the said resources." 22. Insofar as the provisions of the Environment (Protection) Act and the Wild Life (Protection) Act are concerned, it need not be emphasised that every project attracting the provisions of the Periphery Control Act and/or the provisions of the 1995 Act must satisfy the ecological concerns of the area in the light of the provisions of the two statues in question. As already held by us, a public trust has been bestowed on the authorities by provisions of the said Acts which cast on such authorities a duty to interdict any project or activity which even remotely seems to create an imbalance in the pristine ecology and environment of the area on which the city of Chandigarh is situated or for that matter in the immediate vicinity thereof. As already observed, neces....