Punjab-Haryana High Court
Prahlad @ Parhlad Ram vs Union Territory Of Chandigarh And ... on 4 December, 2024
Author: Arun Palli
Bench: Arun Palli
Neutral Citation No:=2024:PHHC:161925-DB
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Date of Decision: 04.12.2024
1) CWP No.32731 of 2024
Prahlad @ Parhlad Ram ....Petitioner
V/s
Union Territory of Chandigarh and others ....Respondents
2) CWP No.32730 of 2024
Ved Parkash ....Petitioner
V/s
Union Territory of Chandigarh and others ....Respondents
CORAM: HON'BLE MR. JUSTICE ARUN PALLI
HON'BLE MR. JUSTICE VIKRAM AGGARWAL
Present: Mr. Nitin Sherwal, Advocate and
Mr. Satish Goel, Advocate, for the petitioner(s).
Mr. Sumeet Jain, Addl. Standing Counsel with
Mr. Himanshu Arora, Panel Counsel,
for the respondents in CWP-32731-2024.
Mr. Sanjiv Ghai, Addl. Standing Counsel with
Mr. Parminder S. Kaul, Advocate,
for the respondents in CWP-32730-2024.
*****
VIKRAM AGGARWAL, J.
1. For, the issue involved is identical in both the writ petitions, they shall be disposed of by way of a common judgment. The facts are primarily being derived from CWP-32731-2024, though reference to the facts of CWP-32730-2024 shall also be made wherever necessary.
2. The petitioner assails the order dated 23.10.2024 (Annexure P-4) vide which the construction raised by the petitioner was ordered to be demolished.
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3. It is the case of the petitioner that he had purchased land measuring 2¼ marla (30 sq. yd. per marla) situated in Village Mauli Jagran, U.T., Chandigarh (for short the "land in dispute") from one Rattan Lal son of Sh. Lachman Singh, who was in possession of total land measuring 12 kanal 14 marla comprised in Khasra No.10//29 since the year 1933. The possession of Rattan Lal had been upheld by this Court vide order dated 14.02.2002, passed in CWP-2900-2002 titled as Gram Panchayat, Village Mauli Jagran V/s Rattan Lal and others (Annexure P-1). Copies of voter card, adhaar card issued by the Chandigarh Administration in the name of the petitioner and his family members, as also copies of electricity, water and sewer connections have been annexed as Annexure P-2 and P-3 respectively.
4. It is the case of the petitioner that the entire land in Village Mauli Jagran has been utilized by raising construction in the said area. Electricity and water connections had been provided to all those who had raised construction including the petitioner. It is the case of the petitioner that 300 pucca houses have been constructed in the said area and the said land has been used for residential purposes since long. The impugned order dated 23.10.2024 has been passed on the allegation of petitioner having raised fresh unauthorized construction, whereas no fresh construction has been raised by the petitioner and the petitioner is residing in the land in dispute since 1997. No material is on record to show that the petitioner has raised fresh construction. The report dated 22.03.2023 (Annexure P-5) of revenue official also states that the construction of the petitioner house is about 20-25 years old. The order dated 23.10.2024 is illegal, arbitrary and non-speaking order and has been passed in a mechanical manner contrary to 2 of 12 ::: Downloaded on - 14-12-2024 09:50:26 ::: Neutral Citation No:=2024:PHHC:161925-DB CWP No.32731 of 2024 -3- and another connected matter the provisions of the New Punjab Capital (Periphery) Control Act, 1952 (for short the "Periphery Control Act"). The impugned order has been passed for construction over an area of 5 marla, whereas the petitioner is in possession of merely 2¼ marla of land.
5. The petitioner received notice dated 11.04.2023 issued under Section 12(2) of the Periphery Control Act, to explain his position. It is the case of the petitioner that he appeared before respondent No.2 many times and on 08.06.2023, he explained the position as regards the construction and submitted that there were no sanctioned building plans within the entire area of Village Mauli Jagran and entire construction in the area had been raised without seeking any permission. It is the case of the petitioner that in the said notice wrong Khasra No.10/27-1/2 was mentioned, whereas the house of the petitioner falls in Khasra No.10//29 and wrong specifications were given in the said notice. Enquiry was conducted on 04.07.2024 by the Tehsildar, Naib-Tehsildar, Kanungo and Patwari on the basis of defective notice dated 11.04.2023 and report thereon was submitted on 17.09.2024. The defective notice 11.04.2023 was only corrected on 16.09.2024 and no enquiry thereafter was conducted on the said notice. Subsequently, pursuant to correct notice dated 16.09.2024, the petitioner again appeared on 26.09.2024 and explained the position. However, in an arbitrary and illegal manner, demolition order dated 23.10.2024 (Annexure P-4) was passed. Since the impugned order 23.10.2024 was passed without taking into consideration the correct notice dated 16.09.2024, it is not sustainable. It has been averred that though an inquiry is stated to have been conducted, no inquiry report has been discussed in the said demolition order nor any opportunity was given to the petitioner to peruse the inquiry report and to 3 of 12 ::: Downloaded on - 14-12-2024 09:50:26 ::: Neutral Citation No:=2024:PHHC:161925-DB CWP No.32731 of 2024 -4- and another connected matter submit a representation and further that no opportunity of hearing had been granted before passing of the demolition order, leading to the filing of the instant writ petition.
6. Learned counsel representing the petitioner and learned counsel representing the respondents who had caused appearance on advance copy of the petition having been served were heard.
7. Learned counsel representing the petitioner submitted that the impugned order of demolition is completely illegal and arbitrary as no proper opportunity of hearing was granted to the petitioner. It was submitted that the entire proceedings had been conducted in a most arbitrary manner in gross violation of the principles of natural justice. It was submitted that the enquiry report referred to in the demolition order was never conducted in respect of Khasra No.10//29 in which the house of the petitioner is situated and the same was conducted in respect of Khasra No.10/27-1/2. Learned counsel further submitted that there was no application of mind before passing of the impugned order and a bare perusal of the same would show that the order is a cyclostyled order. Learned counsel submitted that the original owner of the land namely Rattan Lal son of Sh. Lachman Singh had total land measuring of 12 kanals and 14 marlas and the said land was sold in small chunks of 2/2.5 marlas to different persons against consideration and the petitioner purchased 2¼ marlas of such land and residing there since 1997 by raising construction on it.
8. Learned counsel further submitted that there are many buildings in the area which have been raised without any permission, but it is only the petitioner who has been targeted for reasons best known to the respondents. Learned counsel submitted that the least that is expected of the authorities is 4 of 12 ::: Downloaded on - 14-12-2024 09:50:27 ::: Neutral Citation No:=2024:PHHC:161925-DB CWP No.32731 of 2024 -5- and another connected matter to provide a proper opportunity of hearing so that the petitioner could at least put his case before the authorities in a proper manner. On a pointed query put by the Court as to whether the petitioner had obtained any permission before raising construction, learned counsel conceded that no such permission was ever taken nor are there any sanctioned building plans.
10. On the other hand, learned counsel representing the respondents submitted that there is no illegality in the demolition orders and that were passed after giving due opportunity of hearing to the petitioner. Learned counsel submitted that adequate opportunities were provided to the petitioner to put forth his case but the petitioner did not furnish any permission or other document for raising construction. As regards the wrong khasra number mentioned in notice dated 11.04.2023, the same was rectified and a fresh notice dated 16.09.2024 was issued and a report thereon was submitted by the revenue officials on 17.09.2024 and, thereafter, the petitioner was again given adequate opportunities to present his case.
11. We have considered the submissions made by learned counsel for the parties.
12. Section 12 of the Periphery Control Act, lays down as under:-
"Offences and penalties. - (1) Any person who-
(a) Erects or re-erects any building or makes or extends any excavation or lays out any means of access to a road in contravention of the provisions of Section 5 or in contravention of any conditions imposed by an order under Section 6 or Section 7;or
b) Uses any land in contravention of the provisions of sub-
section (1) of Section 11; Shall be punishable with imprisonment of either description for a term which may extend to two years and fine which may extend to five 5 of 12 ::: Downloaded on - 14-12-2024 09:50:27 ::: Neutral Citation No:=2024:PHHC:161925-DB CWP No.32731 of 2024 -6- and another connected matter thousand rupees and in the case of a continuing contravention with further fine which may extend to five hundred rupees for every day after the date of the first conviction during which he is proved to have persisted in the contravention.
2) Without prejudice to the provisions of sub-section. (1), If the Deputy Commissioner, after making such enquiry as he considers necessary and after affording an opportunity of being heard to the persons concerned, is satisfied that such person has committed a breach of the provisions of the said sub-section he may pass an order requiring that person to restore to its original state or to bring into conformity with the conditions which have been violated, as the case may be, any building or land in respect of which a contravention such as is described in the said sub-section has been committed, and if such person fails to do so within six weeks of the order, may himself take such measures as may appear to him to be necessary to give effect to the order and the cost of such measures shall be recoverable from such person as an arrears of land revenue."
13. The initial notice dated 11.04.2023 was issued under Section 12(2) of the Periphery Control Act in which it was stated that the petitioner had raised unauthorized construction of a house in the concerned land which had been declared as a controlled area. The petitioner, was, therefore, called upon to appear before the competent authority on 20.04.2023. As per the demolition order, petitioner duly appeared but failed to produce any document to support his case. Thereafter, 16 opportunities were given to the petitioner and the petitioner appeared 6 times but failed to submit any document supporting his version. He was also asked to submit any permission taken by him from the Chandigarh Administration for raising construction, but he failed to do so. The impugned demolition order dated 6 of 12 ::: Downloaded on - 14-12-2024 09:50:27 ::: Neutral Citation No:=2024:PHHC:161925-DB CWP No.32731 of 2024 -7- and another connected matter 23.10.2024 shows that multiple opportunities were granted to him to explain his position. It would be relevant to notice that even while arguing the case, learned counsel had to concede, on a query having been raised by the Bench that no permission had been obtained by the petitioner before raising construction. For the notice dated 11.04.2023 had been issued in respect of a wrong khasra number, a fresh notice was issued to him on 16.09.2024 in respect of the correct khasra number, upon which report dated 17.09.2024 was submitted by the revenue officials. The argument that no enquiry was conducted after notice dated 16.09.2024 was issued, is incorrect, in as much the impugned order itself states that the property of the petitioner was verified vide report dated 17.09.2024 which was after the issuance of the notice dated 16.09.2024. Even otherwise, after notice dated 16.09.2024, the petitioner was again given adequate opportunity to put forth his case but the petitioner could not produce any document. Still further, the construction is admitted by the petitioner himself and therefore, no further report was required. Under the circumstances, the demolition order was passed;
"Whereas it has been reported that you have contravened the provisions of Section 5/6/11 of the Punjab New Capital (Periphery) Control Act 1952 as amended by the Chandigarh Administration (Amended) Act, 1972 in as much as you have raised fresh unauthorized construction i.e. 0 Kanal 5 Marla Makanaat Lantered at Khasra No. 10//29 over agricultural land of Village Mauli Jagran UT, Chandigarh in revenue estate having been declared as Controlled area.
Whereas a Notice under Section 12(2) of the Punjab New Capital (Periphery) Control Act 1952 was issued on 11.04.2023 and 16.09.2024 to you for the violations committed by you in contravention of the Periphery Control Act, 1952 Your attention is also drawn to provisions of Section 5, imposed under Section 6 & 7 of the Punjab New Capital (Periphery) Control Act, 1952. The Act under Section 12 further provides that;
a) erect or re-erects any building or makes or extends any excavation or lays out any means of access to a road in 7 of 12 ::: Downloaded on - 14-12-2024 09:50:27 ::: Neutral Citation No:=2024:PHHC:161925-DB CWP No.32731 of 2024 -8- and another connected matter contravention of the provisions of Section 5 or in contravention of any conditions imposed by an order under Section 6 or Section 7; or
b) uses any land in contravention of the provisions of sub section (1) of Section 11;
shall be punishable with (imprisonment of either description for a team which may extend to two years and fine which may extend to five thousand rupees) and in case of a continuing contravention with a further fine which may extend to [five hundred rupees] for every day after the date of the first conviction during which he is proved to have persisted in the contravention".
Whereas you were given first opportunity to appear before the undersigned and to represent yourself on 20.04.2023, But you appeared but failed to submit any representation/ document supporting your version in this case. Further, again multiple opportunities on 08.06.2023, 20.07.2023, 07.09.2023, 21.9.2023, 19.10.2023, 23.11.2023, 28.12.2023. 08.02.2024, 28.03.2024, 30.05.2024, 04.07.2024 22.08.2024, 12.09.2024, 26.09.2024, 03.10.2024 and 10.10.2024 were given to you to explain your position in the matter. You appeared on 08.06.2023, 20.07.2023, 19.10.2023, 23.11.2023, 28.12.2023, 28.03.2024 but failed to submit any representation/ document supporting your version in this case. You were also directed to submit any permission taken by you from the Chandigarh Administration for raising/ constructing this structure but you have failed to provide any supporting document(s) to establish that the construction(s) raised by you on agricultural land is permissible as per the Periphery Act, 1952 nor you have taken any permission from the government for raising this construction. On dated 08.06.2023, you stated that Khasra No is wrong as mentioned in the notice datad 11.04.2023. Therefore, a rectified notice with correct Khasra No. was issued to you vide dated 16.09.2024, which was fixed for 26.09.2024 and you were again directed to submit any permission taken by you from the Chandigarh Administration for raising/ constructing this structure. You appeared on 26.09.2024 and stated that you have received amended Notice issued vide No. 7190 dated 16.09.2024 but again failed to, failed to provide any supporting document(s) to establish that the construction(s) raised by you on agricultural land is permissible as per the Periphery Act, 1952. Sufficient time has also been granted to you to restore the land to its original state and use the same for agricultural purposes or purposes subservient to agriculture. Despite valid service of notice, you have failed to respond to the notice by stopping the unauthorized use of the agricultural land. The Tehsildar (Periphery)/ 8 of 12 ::: Downloaded on - 14-12-2024 09:50:27 ::: Neutral Citation No:=2024:PHHC:161925-DB CWP No.32731 of 2024 -9- and another connected matter Naib-Tehsildar (Periphery)/ Kanungo (Periphery)/ Patwari (Periphery) on dated 04.07.2024 was directed to conduct an enquiry and submit present status of the above property to this Court. Now, they have furnished their report on dated 17.09.2024 wherein stated that the above property has been verified at the site which stands as it is.
In view of your failure to comply with the provision of Periphery Control Act, 1952 to set right the violation even after giving the multiple opportunities, I am left with no other option but to pass demolition orders. Therefore, I, Nitish Singia, PCS, Sub-Divisional Magistrate (East), exercising the power of the Deputy Commissioner, U.T., Chandigarh under the Punjab New Capital (Periphery) Control Act, 1952 direct you to demolish the unauthorized construction immediately and restore the land to its original state within six weeks of issuance of this order as per Section 12(2) of the Punjab New Capital (Periphery) Control Act, 1952.
Whereas on account of non compliance of these orders, action under the aforesaid provisions of the Act ibid for demotion of unauthorized construction shall be taken by the office. It is also intimated that you shall also be liable to pay demolition charges, in case the Enforcement staff of Estate Officer carries out the demolition of the aforesaid structures. Further, this office shall also be constrained to file criminal proceedings against you for such violations, if you fail to remove the unauthorized construction within Six Weeks from the issuance of this order.
In case you have obtained any permission from the Chandigarh Administration or have any Stay order from Hon'ble Court regarding the erection of this structure, you may submit the same to this office immediately."
14. In CWP-32730-2024, the petitioner purchased 2 marlas of land from the same person as was purchased by the petitioner in CWP-32731- 2024 i.e. Rattan Lal son of Lachman Singh. In this case, the demolition order reads as under:-
"Whereas it has been reported that you have contravened the provisions of Section 5/6/11 of the Punjab New Capital (Periphery) Control Act 1952 as amended by the Chandigarh Administration (Amended) Act, 1972 in as much as you have raised fresh unauthorized construction i.e. 0 Kanal 4 Marla Makanaat Lantered at Khasra No. 9 of 12 ::: Downloaded on - 14-12-2024 09:50:27 ::: Neutral Citation No:=2024:PHHC:161925-DB CWP No.32731 of 2024 -10- and another connected matter 10//29 over agricultural land of Village Mauli Jagran UT, Chandigarh in revenue estate having been declared as Controlled area.
Whereas a Notice under Section 12(2) of the Punjab New Capital (Periphery) Control Act 1952 was issued on 11.04.2023 and 16.09.2024 to you for the violations committed by you in contravention of the Periphery Control Act, 1952 Your attention is also drawn to provisions of Section 5, imposed under Section 6 & 7 of the Punjab New Capital (Periphery) Control Act, 1952. The Act under Section 12 further provides that;
a) erect or re-erects any building or makes or extends any excavation or lays out any means of access to a road in contravention of the provisions of Section 5 or in contravention of any conditions imposed by an order under Section 6 or Section 7; or
b) uses any land in contravention of the provisions of sub section (1) of Section 11;
shall be punishable with (Imprisonment of either description for a team which may extend to two years and fine which may extend to five thousand rupees) and in case of a continuing contravention with a further fine which may extend to [five hundred rupees] for every day after the date of the first conviction during which he is proved to have persisted in the contravention"
Whereas you were given first opportunity to appear before the undersigned and to represent yourself on 20.04.2023, But you neither appeared nor submitted any representation/ document supporting your version in this case. Further, again multiple opportunities on 08.06.2023, 20.07.2023, 07.09.2023, 21.9.2023, 19.10.2023. 23.11.2023, 28.12.2023. 08.02.2024, 28.03.2024, 30.05.2024, 04.07.2024 22.08.2024, 12.09.2024, 26.09.2024. 03.10.2024 and 10.10.2024 were given to you to explain your position in the matter. You appeared on 08.06.2023, 20.07.2023, 19.10.2023, 23.11.2023, 28.12.2023, 28.03 2024 but failed to submit any representation/ document supporting your version in this case. You were also directed to submit any permission taken by you from the Chandigarh Administration for raising/constructing this structure but you have failed to provide any supporting document(s) to establish that the construction(s) raised by you on agricultural land is permissible as per the Periphery Act, 1952 nor you have taken any permission from the government for raising this construction. On dated 08.06.2023, you stated that Khasra No is wrong as mentioned in the notice dated 11.04.2023. Therefore, a rectified notice with correct Khasra No. was issued to vou vide dated 16.09.2024, which was fixed for 26.09.2024 and 10 of 12 ::: Downloaded on - 14-12-2024 09:50:27 ::: Neutral Citation No:=2024:PHHC:161925-DB CWP No.32731 of 2024 -11- and another connected matter you were again directed to submit any permission taken by you from the Chandigarh Administration for raising/ constructing this structure. You appeared on 26.09.2024 and stated that you have received amended Notice Issued vide No. 7191 dated 16.09.2024 but again failed to, failed to provide any supporting document(s) to establish that the construction(s) raised by you on agricultural land is permissible as per the Periphery Act, 1952. Sufficient time has also been granted to you to restore the land to its original state and use the same for agricultural purposes or purposes subservient to agriculture. Despite valid service of notice, you have failed to respond to the notice by stopping the unauthorized use of the agricultural land. The Tehsildar (Periphery)/ Naib- Tehsildar (Periphery)/ Kanungo (Periphery)/ Patwari (Periphery) on dated 04.07.2024 was directed to conduct an enquiry and submit present status of the above property to this Court. Now, they have furnished their report on dated 17.09.2024 wherein stated that the above property has been verified at the site which stands as it is.
In view of your failure to comply with the provision of Periphery Control Act, 1952 to set right the violation even after giving the multiple opportunities, I am left with no other option but to pass demolition orders. Therefore, I, Nitish Singia, PCS, Sub-Divisional Magistrate (East), exercising the power of the Deputy Commissioner, U.T., Chandigarh under the Punjab New Capital (Periphery) Control Act, 1952 direct you to demolish the unauthorized construction immediately and restore the land to its original state within six weeks of issuance of this order as per Section 12(2) of the Punjab New Capital (Periphery) Control Act, 1952.
Whereas on account of non compliance of these orders, action under the aforesaid provisions of the Act ibid for demotion of unauthorized construction shall be taken by the office. It is also intimated that you shall also be liable to pay demolition charges, in case the Enforcement staff of Estate Officer carries out the demolition of the aforesaid structures. Further, this office shall also be constrained to file criminal proceedings against you for such violations, if you fail to remove the unauthorized construction within Six Weeks from the issuance of this order.
In case you have obtained any permission from the Chandigarh Administration or have any Stay order from Hon'ble Court regarding the erection of this structure, you may submit the same to this office immediately."
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15. We see no illegality in the said orders. Due opportunity of hearing was granted to the petitioner(s). They were also called upon to produce documents in their favour in the nature of permissions etc. but they could not produce any such document. In the considered opinion of this Court, there would have been no necessity to supply a copy of the enquiry report to the petitioner(s) because it was an enquiry made internally just to ascertain the position at the spot and as per the demolition orders, it was stated in the enquiry report that the construction as stated in the notices existed at the spot. The argument that the orders are in a cyclostyle format is also devoid of merit because apart from issuing a show cause notice as regards the illegal construction and then recording that the same had not been removed nor had any document been produced to prove that there were some permission to raise construction, no other fact was required to be considered and no further application of mind was required. The argument that many other unauthorized buildings exist in the area is also devoid of merit for it is well settled that such illegalities would not entitled anyone else to commit an illegality.
The aforesaid discussion would clearly show that the case of the petitioner(s) is devoid of merit. Accordingly, finding no merit in the writ petitions, the same are dismissed.
(ARUN PALLI) (VIKRAM AGGARWAL)
JUDGE JUDGE
December 04, 2024
vcgarg
Whether speaking/reasoned: Yes/No
Whether reportable: Yes/No
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