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TMI Blog2012 (3) TMI 673X X X X Extracts X X X X X X X X Extracts X X X X ..... ts 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 protected area and is within 10 kilometres of the periphery of Chandigarh. The petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resent 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 rejection has been made by the Chief Wild Life Warden who, the respondents claim, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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 obstruction is bound to arise if the project is to be completed. Apart from conten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ise 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 assuming the Periphery Control Act to be holding the field the question would be the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 extends to that area of the State ofPunjab which is adjacent to and within a distance of ten miles o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uired 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 the restriction signified in the plans under section 4 be deemed to have been given without the imposition of any conditions. (7) The Deputy Commissioner shall maintain a register as ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 specified in the sub-joined and located in Tehsil Kharar, District Ambala, shall be controlled area for the purposes of the said Act. SCHEDULE Sr.No. Name of village Hadbast No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g 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 and including 7th December, 1998. Simultaneously, it was also decided to evolve a policy framework which would permit the setting up of institutions related to education, health etc., with low density of built-up area, within ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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/villages, inside or outside the Abadi areas in an unauthorized manner. Considering the above situation, it is proposed that suitable pockets for Housing/Residential use in the Periphery area be earmarked which can be developed by the Private parties or Government/SemiGovernment Ag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nded 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 granted in any area which falls within the Special Grid of SAS Nagar (Mohali), as reflected in the Outline Master Plan. The extent of area where such constructions are to be permitted will be demarcated and certified for each village falling within the Periphery by the Revenue Authorities, subject to the final approva ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atory 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 development in the periphery. The same is extracted here below:- ANNEXURE A Guidelines for Permitting Planned and Organized Residential Development in the Periphery. Planned residential development shall be permitted in the Periphery only in: - (a) The area delineated as residential in the Outline Master Plan/Draft Comprehensive Master Plan/Comprehensive Master Plan, prepared under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ved 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 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 processes in the State; for Constitution of a State Urban Planning and Development Authority, Special Urban Planning and Development Authorities and New Town Planning and Development Authorities, for the effective and planned Development of planning areas; and undertaking urban development and hous ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h 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 Municipal committee or a Municipal Corporation, it shall prepare and submit to the Board for its approval a plan (hereinafter called the Draft comprehensive Master Plan) for the local planning area or any part thereof; and (b) where the Designated Planning Agency is not a Municipal Committee or Municipal Corporation, it shall prepare and submit the draft Comprehensive Master Plan to the Municipal Committee or the Municipal Corporation, in whose jurisdiction the local planning area or part thereof for which the draft Comprehensive Master Plan has been prepared ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eight, 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 provided for in the Master Plan; (ii) detailed development of specific areas for housing, shopping centres, industrial areas and civic centres, educational and cultural institutions; (iii) detailed re-development or renewal of specific areas for housing, shopping centres, industrial areas, civic centres, educational and cultural institutions and other related purposes, widening of streets and roads and provision of amenities and infrastructures; (iv) control of architectural features, elevation and frontage of buildings and structures; and (v) a five year development programme; and (f) designate land as subject to acquisition for any public purposes and in particular ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wn 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 person shall use or permit to be used any land or carry out any development in that area otherwise than in conformity with such Master Plan: Provided that the Competent Authority may allow the continuance of any use of any land, for a period not exceeding ten year, upon such terms and conditions as may be provided by regulations made in this behalf for the purpose and to the extent, for and to which it was being used on the date on which such a Master Plan came into operation. 18. A reading of the provisions of the Periphery Control Act along with the policy and the Act of 1995, in our considered view, reasonably gives rise to the conclusion that the two statues instead of confronting each other actually complement each other in their respective applications. The Periphery Control Act does not contemplate a c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 development in the peripheral area as well as in the immediate vicinity of such area. The authorities on whom the duty to give such effect has been cast are clearly identifiable under the provisions of the respective Acts and the task assigned must be performed keeping in mind the following principles laid down by the Hon ble Supreme Court in M.C. Mehta vs. Kamal Nath and others, (1997) 1 Supreme Court Cases 388 (para-41): - In Phillips Petroleum co. vs. Mississippi 108 S.Ct. 791 (1988), the United States Supreme Court upheld Mississippi's extension of public trust doctrine to lands underlying nonavigable tidal areas. The majority judgment adopted ecological concepts to determine which lands can be considered tide lands. Phillips Petroleum case assumes importance because the Supreme Court expanded the public trust doct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en 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, necessary clearances under the aforesaid two enactments, insofar as the respondents are concerned, are presently pending before the concerned authorities and, therefore, it would be highly incorrect on our part to enter into any further discussion on the aforesaid aspect of the case. 23. This would bring the court to the last limb of the issues arising in the case, viz., whether the proposed housing colony would, in any way, violate the edict of Chandigarh. The edict of Chandigarh as envisioned by the great French Architect Mon Lee Corbusier (Planner and Designer of Chandigarh) engrafts the basic concepts of planning that had gone into building and designing the city of Chandigarh. It ends on what can be perceived to be a hope that the present and future citizens of Chandigarh would zealously guard the basic values of planning a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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