Allowed

Abhimanyu Rathor v. State of Hp

Himachal Pradesh HC22 Dec 2017CWP/612/2017

Case brief

AI extract

What is this about?

Challenge to the 2016 amendment inserting Section 30-B into the Himachal Pradesh Town and Country Planning Act, 1977, permitting one-time regularisation of unauthorised constructions on payment of a fee. The High Court held the provision contrary to the object of the principal Act and manifestly arbitrary, struck it down as ultra vires the Constitution, and allowed the petitions.

What did the court decide?

Section 30-B of the Himachal Pradesh Town and Country Planning Act, 1977, inserted by the 2016 Amendment Act, struck down as ultra vires the Constitution; writ petitions allowed to that extent.

Abhimanyu Rathor Vs State of Hp — Environment and Pollution | Himachal Pradesh HC (2017)

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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CWPs No.612,704 & 819 of 2017

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Reserved on : September 20, 2017 Re-heard on : December 18, 2017 Date of Decision : December 22, 2017

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CWP No.612/2017 Abhimanyu Rathor ….Petitioner. versus State of H.P. & others …Respondents. 2. CWP No.704/2017 Raghav Goel ….Petitioner. versus State of H.P. & others …Respondents. 3. CWP No.819/2017 Hitanshu Jishtu ….Petitioner. versus State of H.P. & another …Respondents.

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Coram:

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The Hon’ble Mr. Justice Sanjay Karol, Acting Chief Justice. The Hon’ble Mr. Justice Tarlok Singh Chauhan, Judge. Whether approved for reporting? Yes.

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For the Petitioners : Petitioners Mr. Abhimanyu Rathor and Mr. Raghav Goel in person, in CWPs No.612/2017 & 704/2017, respectively.

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Mr. B.C. Negi, Senior Advocate with Mr. Rohit Chauhan, Advocate, in CWP No.819/2017.

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Mr. Ramesh Sharma, Advocate, in CWP No.1772/2016

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For the Respondents : Mr. Shrawan Dogra, Advocate General, with Mr. Romesh Verma, Additional Advocate General, Mr. J.K. Verma & Mr. Kush Sharma, Deputy Advocates General for the State. Mr. Hamender Chandel, Advocate, for Municipal Corporation. Mr. R.L. Sood, Senior Advocate, with Mr. Arjun Lal, Advocate, as Intervener. Mr. N.K. Sood, Senior Advocate, with Mr. Aman Sood, for applicants in CWP No.819/2017. Mr. Aman Nandrajog, Mr. Arjun Nanda and Ms Vandana Misra, Advocates, for interveners. Mr. Deepak Kaushal, Advocate, for applicant/proposed respondent in CMP Nos.3417 and 3418 of 2017. Mr. Vinay Kuthiala, Senior Advocate, with Ms Vandana Kuthiala, for applicant(s) in CMP Nos.6059, 6060 and 6061of 2017. Mr. Neeraj Kumar Sharma, Advocate in CMP No.6345 of 2017.

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Sanjay Karol, Acting Chief Justice

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The questions, which arise for consideration in these petitions, are:

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(i) As to whether insertion of Section 30-B, by virtue of the Himachal Pradesh Town and Country Planning (Amendment) Act, 2016, in the Himachal Pradesh Town &

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Country Planning Act, 1977, is contrary to the object and purpose of the said Principal Act, as also ultra vires the Constitution of India?

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(ii) As to whether the constitutional validity of the amending provision is not ultra vires the Constitution, in view of law laid down by the Apex Court in Consumer Action Group v. State of T.N., (2000) 7 SCC 425?

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(iii) As to whether arbitrariness cannot be a ground for holding the amendment to be ultra vires the Constitution, in view of law laid down by the Apex Court in Binoy Viswam v. Union of India & others, (2017) 7 SCC 59?

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(iv) If not, then as to whether the amendment is violative of Article 14 of the Constitution, being arbitrary, irrational, illogical, capricious and unreasonable, in view of the law laid down by the Apex Court in Shayra Bano v. Union of India, (2017) 9 SCC 1?

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(v) If the amendment is ultra vires, then as to whether it can be saved by adopting the doctrine of severability or not?

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The impugned amendment carried out in the Statute, which starts with a non obstante Clause, confers power upon the Government, empowered Officer or

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Authority to exempt development of any land or building or class of lands or buildings developed on or before 15.6.2016, from all or any of the provisions of the Act, save and except certain exceptions, on payment of specified regularization fee.

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Moot issue, as already mentioned, is as to whether it is within the legislative competence of the State to come out with such an amendment and whether the said amendment is violative of the Constitution of India, Part-III or otherwise, as also being inconsistent with the object of the Principal Act.

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Shri Hitanshu Jistu, petitioner in CWP No.819 of 2017, is an Architect by profession. In this Writ Petition, filed as pro bono publico, he lays challenge to the amendment, inter alia, on the ground of it being illegal and against the mandate of ‘good governance’.

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Shri Abhimanyu Rathore, a practicing Advocate, petitioner in CWP No.612 of 2017, seeks reliance on a news report (Annexure P-3), published in “Times of India”, wherein it is reported that State seeks to regularize 35000 illegal buildings, by way of an Ordinance, which was promulgated immediately prior to the amendment in question. He also seeks reliance on

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the report of the Committee, headed by Shri Shashi Shekhar, constituted by the National Green Tribunal in Yogendra Mohan Sengupta v. Union of India (OA No.121 of 2014), dealing with Shimla City and Shimla Planning Area.

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To similar effect is CWP No.704 of 2017, filed by Shri Raghav Goel, also a practicing Advocate.

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Defending the legislation, not being arbitrary or beyond legislative competence, learned Advocate General seeks reliance upon the decisions rendered by the Apex Court in Consumer Action Group (supra) (threeJudge Bench) and Binoy Viswam (supra) (two-Judge Bench).

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Opposing these petitions, several owners have filed applications for intervention, who were allowed to make submissions, through their respective counsel. (CMPs No.2727,3416,6059,6060,6061,6345,7297 & 7298 of 2017 in CWP No.612/2017 and 5203 to 5205, 6491&6492 in CWP No.819/2017). Also, learned counsel have cited certain decisions, which we have considered.

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From the pleadings of the parties, certain undisputed facts have emerged on record. Himachal Pradesh is predominately a hilly State with a total

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population of 68.56 lakhs (6.85 millions), residing in an area of 55673 sq. km. Urban population of the State is 6.89 Lakhs (0.69 million) (10.04% of the total population). Within the State of Himachal Pradesh, there are two Municipal Corporations, 31 Municipal Councils and 21 Nagar Panchayats, which govern approximately 9.2% of the total population of the State. Within the State, there has been rampant unauthorized constructions, and all this, de hors the provisions of the Himachal Pradesh Town & Country Planning Act, 1977 (referred to as the Planning Act) and other Municipal Laws, i.e. H.P. Municipal Corporation Act, 1994 (hereinafter referred to as Corporation Act); and the Himachal Pradesh Municipal Act, 1994 (hereinafter referred to as the Municipal Act). Despite several judicial pronouncements of this Court and orders dated 30.5.2014, passed by the National Green Tribunal, in case titled as Yogendra Mohan Sengupta (supra), functionaries of the State allowed rampant illegal and/or unauthorized constructions to be raised in a haphazard manner. Between the year 1997 and 2006, Government notified no less than seven policies of retention of unauthorized structures, so raised by people in several areas within the State. Such perpetuation of

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illegality resulted in the passing of the Himachal Pradesh Town and Country Planning (Amendment) Act, 2016 (hereinafter referred to as the Amending Act), w.e.f. 15.6.2016, whereby constructions raised by anyone, anywhere and in whatever manner and extent, except for few exceptions, are sought to be regularized by the State.

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With the Bill being introduced in the Legislative Assembly, the Minister Incharge furnished the following ‘Objects and Reasons’, necessitating the amendment:

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“The Government has tried to address the issue of regularization of un-authorized constructions raised in contravention of the provisions of the Himachal Pradesh Town and Country Planning Act, 1977 (Act No.12 of 1977) by bringing Retention Polices/Guidelines from time to time. However, such Retention Policies/Guidelines have not proved to be an effective mechanism to weed out problem of un-authorized constructions on account of limited extent and scope of such polices in comparison to the magnitude of offences. Under the said Retention Polices/ Guidelines, total 8,198 cases of un-authorized construction were received, out of which 2,108 cases were retained and remaining 6,090 cases are yet to be regularized. At the moment, there are about 13,000 un-authorized buildings upto March, 2016 in the notified Planning and Special Areas. Demolition of such a large number of unauthorized constructions is neither feasible nor desirable as it will result in undue hardship to the owners and occupants. On the other hand, the Hon’ble High Court has taken serious view of this grim situation, and in its judgment/order dated 7- 8-2009 in CWP No.673 of 2005 titled as Thakur

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Singh V/s State of H.P. has directed that the State Government shall desist from making any retention policy permitting the regularization of total unauthorized construction. Considering this and the practice followed in other metropolitan cities of the Country to deal with violated constructions, it has been considered more appropriate to make a special one time provision for composition of offences by charging deterrent composition fee instead of demolition of large scale un-authorized constructions which is neither feasible nor practicable for many reasons. Thus, in view of above stated facts and figures and after taking into consideration measures taken by the other States to deal with this burning problem, it was decided to make a special provision in the Act ibid.

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This Bill seeks to replace the aforesaid Ordinance with some modifications.”

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(Emphasis supplied)

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This led to the insertion of Section 30-B, by

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way of Amending Act, relevant clause whereof reads as

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under:

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“2. Insertion of new section 30-B .—After section 30-A of the Himachal Pradesh Town and Country Planning Act, 1977 (hereinafter referred to as “the principal Act”), the following section shall be inserted, namely:—

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“30-B. Exemption in respect of development of certain lands or buildings.—

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(1) Notwithstanding anything contained in the Himachal Pradesh Town and Country Planning Act, 1977 or any other law for the time being in force, the Government or any Officer or Authority, vested with the powers of Director, may, on application, by order, exempt development on any land or building or class of lands or buildings developed on or before the date of commencement of this Act from all or any of the provisions of the Himachal Pradesh Town and Country Planning Act, 1977 or any rules or

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regulations made thereunder upto such extent and on payment of such regularization fee as specified under sub-section (8).

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(2) The application under sub-section (1) shall be made within sixty days from the date of publication of this Act in the Official Gazette in Appendix-I, which can also be downloaded from the official website “www.tcphp.in” of the Department and may be submitted alongwith fee of one thousand rupees which shall be disposed of within a period of one year from the date of publication of this Act.

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(3) After passing of order under sub-section (1), permission shall be deemed to have been granted for such development of land or building.

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(4) Nothing contained in sub-section (1) shall apply to any application made by any person who does not have any right over the land or building referred to in sub-section (1).

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(5) Any person aggrieved by any order passed under sub-section (1) by any Officer or Authority may, prefer an appeal to the Appellate Authority within thirty days from the date of receipt of order. The condition of one year stipulated under sub-section (2) shall not apply in appeals and such appeals shall be decided by the Appellate Authority within a period of six months from the date of filing thereof.

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(6) The fee under this section shall be charged and deposited by the Competent Authority through Treasury Challan or e-Challan in the relevant Head of Account, and in case of Urban Local Bodies or Special Area Development Authorities, the fee shall be charged by way of Demand Draft or online payment by such Bodies.

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(7) Before grant of exemption under subsection (1), the following guidelines and principles shall be kept in view to ensure compliance thereof, namely:—

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(a) the buildings shall be regularized on the basis of “as is where is” : Provided that a structural stability certificate shall be submitted

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by the applicant for the building to be regularized from the qualified Structural Engineer;

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(b) there shall be no exemption for regularization in respect of deviations and unauthorized constructions in the Green Area and Heritage Area as defined under Interim Development Plans or Development Plans as notified by the State Government from time to time;

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(c) deviations and un-authorized constructions falling in Green Area and Heritage Area as delineated in the Interim Development Plans (IDPs) or Development Plans (DPs) shall be regularized which have taken place prior to the notification (s) of delineation of such areas;

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(d) the exemptions shall also be granted for such buildings which have been constructed above the road level;

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(e) developments carried out in lands or buildings owned by individuals in Himachal Pradesh Housing and Urban Development Authority (HIMUDA) Colonies, where such Colonies are maintained and administered by the Urban Local Bodies (ULBs), shall be considered for exemption;

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(f) developments or constructions carried out without permission or in deviation to approved plan, if not exempted under this section, shall face disconnection of services and demolition;

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(g) the competent authority shall ensure that the roof of buildings to be exempted and regularized under this section is rendered totally ineffective for further vertical construction in future;

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(h) un-authorized constructions carried out on the area and pockets kept for parks, sewerage or any other facility in any approved map of subdivision of land by the competent authorities shall not be regularized;

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(i) parking floor(s) as per approved plan, if converted to any other use like residence or shop

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etc. shall not be regularized but in case, alternative equivalent or more parking space is available then, parking floor(s) so converted into other use(s) shall be considered for regularization : Provided that such cases where existing road level is not abutting from approved parking floor and further there is no feasibility of construction of road leading to approved parking floor may be considered for regularization;

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(j) no exemption shall be allowed in case the owner has encroached upon any land owned by the Government or Local Authority or Board or Corporation or Institution or any Authority constituted under the Himachal Pradesh Town and Country Planning Act, 1977 or other person’s land;

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(k) no exemption shall be allowed on the land lying below Highest Flood Level (HFL) as delineated in the Development Plans;

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(l) in case of apartments, flats or slabs, the individual owner may apply for regularization; and

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(m) the people residing in the areas where provisions of the Himachal Pradesh Town and Country Planning Act, 1977 or the Himachal Pradesh Municipal Act, 1994 or the Himachal Pradesh Municipal Corporation Act, 1994 were not in force at the time when the buildings were constructed need not to apply : Provided that if there is any ambiguity as to whether any person is exempted or not under this section, he may make an application alongwith documents, if any, to the Competent Authority online or otherwise, who shall pass appropriate order on his application.

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(8) The regularization fee for regularization of deviations and un-authorized constructions shall be charged as per TABLE given below:—

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TABLE

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(A) For Residential buildings:—

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Sr.	Description	Rates	Outside	Remarks
No.		Municipal	Municipal
		Area	Area

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1.	Where permission has been taken for development but deviations on set backs or storeys or in both have been made	@Rs.800/- @Rs.400/- Per M²Per M²	(i) Regularization Fee shall be charged on the deviated area i.e. on set backs and un-authorized storeys which is beyond sanctioned plan; and (ii) For the purpose of calculation of deviations, the Regulations i.e. set backs, number of storeys/Floor Area Ratio (FAR) as were applicable at the time of approval of original or revised or retained map shall be taken into consideration.
2.	Where permission has not been taken.	@Rs.1000/- @Rs.500/- Per M²Per M² Area for development i.e. total un-authorized construction .	For the purpose of calculation of deviations, the total built up of the building shall be taken into consideration.

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(B) The regularization fee as specified under clause (A) of this sub-section shall be increased by 100% for Commercial, Hotel, Tourism, Industrial or other Uses :

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Provided that the regularization fee as specified under clause (A) of this sub-section shall be decreased by 75% for the persons falling under the categories of Below Poverty Line (BPL) and Economically Weaker Sections (EWS) of the society :

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Provided further that no other fee shall be charged like Development of land, Building Operation, Change of Existing Building Use and Change of Land Use etc.

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(Emphasis supplied)

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Factum of unauthorized and illegal

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construction is not disputed by the State. However, justifying the legislation, in the response, State has

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assigned additional reasons – (i) on account of rapid growth of economic opportunities in and around the major cities/towns of Himachal Pradesh, there has been constant influx of the rural population to the urban areas resulting in steep increase in demand for properties for residential, commercial and other uses in the urban areas, (ii) this has resulted in hectic construction activities and several buildings, so constructed, do not conform to the building regulations, (iii) the owners and occupiers of such buildings have been given notices under the relevant legislations requiring them to remove, pull down or alter the buildings, (iv) however, removal or pulling down large number of buildings is neither feasible nor desirable, and such action if resorted to may give rise to the possibility of creating law and order problems apart from the fact that it would cause hardship to a large number of people who would be rendered homeless and who would have to be provided with housing, (v) the social and economic fabric of the Society would be disturbed leading to a chaotic situation in the society, (vi) to avoid such an eventuality, the intervention of the State Legislature by making an amendment became a

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compelling necessity, and, therefore, the State Legislature has to come up with the Amending Act.

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We may only observe that to substantiate these pleas, there is no material on record. 14. Also, it stands admitted that 8782 number of online applications for regularization of unauthorized construction already stood received.

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Historical Perspective of Planned Development in India

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The history of contemporary planning practice in India dates back to the enactment of the Bombay Improvement Trust Act, 1920. Subsequently, similar Acts were enacted in other Presidencies. Visit of Sir Patrick Geddes to India and his propagation of the work home place theory, laid foundation for setting up of Improvement Trusts and subsequent thinking process for enactment of Town and Country Planning Acts in various States and the establishment of State Town and Country Planning Departments. Following this, Urban Department Authorities were set up under the Development Authority Acts for addressing the problems of fast growing town and cities and formulating Master Plans which apart from having strong spatial connotations also had both social and economic aims.

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Statutory process of master plan formulation in India was also inspired by the erstwhile

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comprehensive planning system envisaged under the Town and Country Planning Act, 1947 of United Kingdom. As most of the Town Improvement Trust Acts then in force in various States did not contain provisions for preparation of Master Plans, a need was felt to have a Comprehensive Town and country Planning Act on the lines of U.K. Accordingly, Central Town and Country Planning Organization or TCPO drafted the Model Town and Regional Planning and Development Law in 1962, which formed the basis for various States to enact Town and Country Planning Acts, with modifications to suit local conditions.

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The Three Acts Dealing with Planning & Construction Activity within the State of Himachal Pradesh

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Within the State of Himachal Pradesh, planning and construction is essentially regulated by the three statutes.

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The Planning Act came into force w.e.f. 30.9.1977. The object and purpose is evident from its Preamble, which reads as under:

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“THE HIMACHAL PRADESH TOWN AND COUNTRY PLANNING ACT, 1977 AN ACT to make

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provision for planning and development and use of land; to make better provision for the preparation of development plans and sectoral plans with a view to ensuring that town planning schemes are made in a proper manner and their execution is made effective to constitute the Town and Country Development Authority for proper implementation of town and country development plan, to provide for the development and administration of special areas through the Special Area Development Authority, to make provision for the compulsory acquisition of land required for the purpose of the development plans and to regulate the construction, sale, transfer and management of apartments, to regulate colonies and provide for registration of promoters and estate agents and for enforcement of obligations on them” and for purposes connected with the matters aforesaid.”

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(Emphasis supplied)

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Undoubtedly, the Planning Act was

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incorporated for the purpose of planning, development and use of land; and to make better provision for preparation of development plans.

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This Act, applicable to the whole of Himachal Pradesh, is divided into Nine Chapters, out of which, we are concerned only with Chapters-III, IV, V & VI.

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Under Chapter-III, the Director is obliged to carry out survey of the regions notified by the State, for the purposes of preparation of Regional Plan, keeping in view the regulation for land use, zoning for “natural hazard prone area” (sub-section (iii) of Section 5). The regional plan shall indicate, inter alia, the phasing of development, the network of communication and

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transportation, the proposal of conservation and development of natural resources. Such plans are required to be finalized by the State Government. Section 10 provides that notwithstanding anything contained in any other law, pending finalization of the Draft Regional Plan, no person shall (i) change the use of land for any purpose other than agriculture, (ii) without prior approval of the Director, carry out development contrary to the provisions of the draft plan, which “shall not be granted other than in conformity with the provisions of the draft or final plan”. Significantly, no permission, granted contrary to the same “shall be construed to confer any legal right on the person seeking such permission”. Not only that, the respective municipal bodies, within which such contravention is noticed, are mandatorily required to take remedial measures against the defaulter for removal/demolition of such structure (Section 39). By virtue of Section 15-A, pending finalization of plans of the planning area, the State Government is empowered to freeze the land use of any area. This can be so done to prevent ecology and environment, ensuring that no building operation renders the proposed plan to be nugatory.

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Chapter-IV of the Act, inter alia, provides for the planning areas and the development plans. The Director is under an obligation to prepare and finalize the development plans for the areas notified by the State. With the publication of the land use map, all development of the area is frozen, to be carried out, save and except, in accordance with law. Noticeably, by virtue of Section 17, Director is also under an obligation to prepare interim development plan, mandatorily indicating the land use proposed in the planning area, i.e. residential, industrial, commercial and the other uses to which the area can be put. Also, area for public utilities and amenities is to be specified. It is also to provide for guidelines for construction of buildings, with respect to height, size, structure, etc.

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Chapter-V provides for preparation of sectoral

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plans.

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We notice that in terms of Chapter-VI, control of development and use of land vest with the Director and in terms of Section 26, all developmental activities have to be in conformity with the provisions of the development plan. Further, by virtue of Section 27, no person can change the use of any land or carry out any

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development of land without written permission of the Director. In fact, there is absolute prohibition from doing so. So much so, even the State or local authority has to take such permission (Section 28). However, Section 30-A carves out an exception with regard to development of rural areas, falling within the planning or special areas, but that is where neither the interim nor the development plan stands notified. We are not concerned with such exceptions, for it is not an issue before us. We notice that by virtue of Section 35, Director has got power to make acquisition of land for town expansion/ improvement. This Chapter also provides for penalty for unauthorized development or use other than in conformity with the development plan. The action is penal and the offender can be sentenced to suffer imprisonment upto six months and also pay fine as sentence (Section 38). 25. From the conjoint reading of the provisions of Sections 38 to 39-C, we find that the authorities constituted under the Act can take action to initiate prosecution; seal and/or remove unauthorized development or even compound the offence.

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Not only that, by virtue of Section 35, if a property is required for the purpose of town expansion or improvement, it can be acquired.

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It is not in dispute that though various plans under the Act stand prepared, but the draft plan has yet not been finalized and decisions are being taken on the basis of interim/draft development plans. Also, no exceptions are carved out by virtue of Section 30-A.

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In the State of Himachal Pradesh, there is also in force the Corporation Act. This Act extends to the whole of the State of Himachal Pradesh, excluding the cantonment areas.

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Presently, in terms of Section 3, besides Municipal Corporation, Shimla, there is also Municipal Corporation, Dharamshala.

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Here we are concerned with Chapters XIV and XXII, which lay down regulations and bye-laws, respectively, for construction of buildings and ChapterXIX, which empowers the Commissioner to lay down a scheme for improvement of the area(s).

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By virtue of Section 242, no person can erect or commence erection of any building or execute work, so specified in Section 244, except with the prior sanction

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of the Commissioner, to be accorded by virtue of Section 246. Prior to any construction, being raised, a person is under an obligation to inform the authority/Commissioner about the same.

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Statutory scheme mandates all constructions are to be raised in accordance with the regulations and plans sanctioned in terms thereof.

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Section 253 casts a duty upon the Commissioner to not only stop but also demolish the work so commenced in violation of the Corporation Act. Such work(s) can also be sealed and compounded.

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The Corporation Act also deals with the obligations, which the Corporation has to perform, with regard to cleanliness, sanitation and public health.

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Even under the Corporation Act, by virtue of Chapter-XIV, the Corporation is under an obligation to prepare a development plan for its area to be submitted to the District Planning Committee, which, in turn, is required to consolidate the development plans prepared and submitted by the municipalities in the Districts to the Government.

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Chapter-XIX of the Corporation Act empowers the Commissioner to frame a scheme for improvement of

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an area in accordance with the bye-laws and some of the parameters for doing so, as is evident from sub-section (a) of Section 332, are sanitary defects, fitness for human habitation, or by reason of their bad arrangement of the streets or want of light, air, ventilation or proper conveniences are dangerous or injurious to the health of the inhabitants of the area. The Commissioner has power to frame scheme for distribution of sites belonging to the owners of the property. Of course, such scheme is to be approved and sanctioned by the State Government.

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There is also in force the Municipal Act, provisions of which are applicable for Municipalities and Nagar Panchayats. Presently, there are 31 Municipal Councils and 21 Nagar Panchayats.

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Here, Section 203 provides that no person shall erect or re-erect or commence to erect or re-erect any building without sanction of the municipality. Section 204 confers power upon the municipality to make byelaws for erection or re-erection of the building. Section 206 confers power upon the State Government, in public interest, to regularize buildings in any area whether constructed with or without sanction of the municipality for which no building scheme or town planning scheme

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stands sanctioned. Section 211 provides for penalty for disobedience, which inter alia provides that in the event of construction of a building having begun, erected or reerected in violation of the provisions of Sub-section (1) and Sub-section (2) of Section 203 or when sanction stands refused, then the municipality may, require the building erected to be either altered or demolished.

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When it comes to construction/erection/reerection of the buildings, we find Chapter-II of the Municipal Act to contain similar provisions, as we have noticed supra, so contained in Chapters XIV and XXII of the Corporation Act.

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Thus, we notice that the object, purpose and aim of all these Acts is to ensure planned and regulated activity of construction, with a specified aim of providing good health and promoting cause of public good.

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Interplay and Co-relation between the three Acts

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That in relation to the building activity, the Planning Act and the Corporation Act operate in different fields and are complementary and supplementary to each other, stands settled by the apex Court in Commissioner of Municipal Corporation, Shimla v. Prem Lata Sood and

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others, (2007) 11 SCC 40, in the following terms:

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“13. Section 243 of the 1994 Act provides that every person who intends to erect a building shall apply for sanction by giving notice in writing of his intention to the Commissioner in such form and containing such information as may be prescribed by the bye-laws made in that behalf. Despite the fact that the 1977 Act provides for filing of an application for a development plan, when an interim development plan has been made, the 1994 Act also provides for sanction of a building plan, if a person intends to execute any of the works specified under Section 244 of the 1994 Act. The said provision lays down that every person who intends to execute any of the works specified therein shall apply for sanction by giving notice in writing of his intention to the Commissioner in such form and containing such information as may be prescribed by the bye-laws made in that behalf…..”

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“29. In our opinion, the 1977 Act and the 1994 Act operate in different fields and they are complementary and supplementary to each other. The provisions of both the Acts can be worked out. There is no conflict between the two Acts. The 1977 Act deals with laying down the broad policy. It provides for preparation of development plans including the internal development plans. Indisputably, such development plans when made would be binding upon the local authority. It may, however, be not correct to contend that despite the fact that the operation of the Acts cover two different fields, namely, the 1977 Act deals with laying down the overall policy matter and the 1994 Act deals with the grant of building plans in terms of the provisions thereof by the Commissioner of the Municipal Corporation; only because sanction for development in the Mall area of the town of Shimla was granted by the State in terms of the 1977 Act, the same would mean that the same was binding upon the Municipal Corporation or that the provisions of the 1994 Act or the building bye-laws were not required to be complied with at all.”

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(Emphasis supplied)

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In our considered view, the position with regard to the Municipal Act has to be similar.

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Hence, at this juncture, we may clarify that exemption, if any, under the newly inserted Section 30-B has to be read and confined as applicable only to the Planning Act and not the Corporation Act or Municipal Act, for there is no corresponding amendment carried out thereunder. Rigours of the other two Acts would continue to be applicable with full force. Property falling within the territorial limits of the Corporation Act or the Municipal Act, even though, exempted under the Planning Act, would still continue to be regulated by the former Acts.

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We notice that despite the mechanism for enforcement of the three enactments in place, repeatedly, rather notoriously, all the successive Governments, not only allowed rampant growth of concrete jungle, but relentlessly pursued the policy of appeasement, by promoting and propagating dishonesty, for regulating unauthorized possession (Encroachment Policy) or unauthorized construction (Retention Policy). 45. This now takes us to the point as to how this Court has dealt with such issues.

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Consistent View of this Court on Different Encroachment/ Retention Policies

¶152

In Society for Preservation of Kasauli v. State of Himachal Pradesh, 1994 Supp. SLC 450 (DB; 5.7.1994), this Court expressed concern with regard to “concrete structures” “becoming eye-sore in calm and cool atmosphere” of hills of Himachal Pradesh. While noticing that balance must be struck between the environment and human beings, the Court observed that the factum of the beauty of the Himalayan Range is well known and acknowledged. Its preservation is paramount importance and consideration. It is submitted that civilisation must necessarily have its effect on environment as it is an universal truth that no civilisation in the entire world progressed/developed without affecting the environment. 'Progress of civilisation and pollution in environment go side by side' and are supplementary to each other. No civilisation can be conceived without any pollution. Environment necessarily has to be preserved for the benefit of human race, but it cannot be extended whereby the progress of the society is either obliterated or hampered. Military installations, tele-communications, net-works, electrical transmission and housing with its

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infrastructure, must necessarily be permitted to mingle with the scenario of modern technologies in the march towards the next century for shelter on every human head is not of lesser importance or significance than the presence of good environment. Therefore, balance must be struck between the environment and the human needs.

¶155

In CWP No.122 of 1995, titled as Raj Kumar Singla v. State of H.P. and another (DB; 16.9.1997), it was observed that:

¶156

“18. It is rather surprising that the State Government should think of legalising an illegal act and part with the Government property or public property in favour of those persons, who are guilty of committing such illegal acts. It is the duty of the Government to prevent encroachment on public property. If the Government decides to make a gift of the public property to those who have encroached thereon it will tantamount to the Government accepting and admitting its inability to prevent the encroachment. In fact, the marginal note in …………………”

¶157

“20. Though in this case, the State Government has not expressly pleaded its inability to prevent encroachment on Government land and public property, the encroachment policy issued by the State Government would only show that the Government is not in a position to handle the situation. It is a pity that the Government with its powerful machinery is not in a position to protect its property, which is really a property of the people of the State and goes to the extent of making a gift of the property on which unscrupulous people have encroached by violating the provisions of law. We cannot but express our anguish and explain ‘woe unto the Government

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which seeks to legalise an illegality by an executive action’.”

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“27. The Court reiterated the above propositions and held that a public policy cannot be a camouflage for abuse of the power and trust entrusted with the public authority or public servant for the performance of public duties.”

¶161

(Emphasis supplied)

¶162

In CWP No.2697 of 2011, titled as Budhishwar

¶163

Gaur v. State of H.P. & others (SB; 9.1.2012), it was observed that:

¶164

“29. …………The matter is required to be looked into from another angle. The Municipal Council is required to ensure due compliance of the building plans at each and every stage. It need not wait to take action till the completion of the building. The policy of Municipal Corporation to wait till the completion of the building and to forfeit only the security amount, which is deposited, is contrary to the letter and spirit of the H.P. Municipal Act. The Court can take judicial notice of the fact that large scale constructions are being carried out throughout the State of Himachal Pradesh in violation of the approval/sanctions and the Municipal Councils. Once the law has been enacted, it must be scrupulously followed and if there is laxity, it erodes the accountability of the Government. The rule of law is required to be maintained by all the concerned authorities, which are responsible for implementing the law.”

¶165

(Emphasis supplied)

¶166

In CWP No.897 of 2004, titled as Vijay Kumar

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Aggarwal v. State of H.P. & others (SB; 31.10.2012), this Court emphasized that the provisions of the Act “provided for regulation and construction of a building in an urban area and the object behind the rules is

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maintenance of public safety and conveniences”. Further, building plans are governed by statutory provisions which are intended to ensure proper administration and provide proper civic amenities and no vested right divorced from public interest or public convenience can be claimed by any person seeking such sanction.

¶170

In CWPIL No.14 of 2014, titled as Court on its own motion v. State of H.P. & others (DB; 22.5.2015), one of us (Tarlok Singh Chauhan, J.) expressed deep concern as to why administration was permitting Shimla town, once considered to be the “Jewel of Orient” and “Town of Dreams”, to be converted into a slum. Great concern was expressed of the State not having learnt any lesson from the recent earthquakes, devastating the Himalayan region and the administration not rising out of slumber. The Court took note of the town of Shimla having become concrete jungle and consequences of it being reduced to a “tomb of rubble” in the event of the unfortunate natural calamity, arising as a result of high intensity earthquake, occurring in Seismic Zones 4 & 5. Further that:

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“30. According to the report prepared by the Himachal Pradesh State Disaster Management Authority, seismically, the State lies in the great Alpine-Himalayan seismic belt running from Alps Himalayan through Serbia, Croatia, Turkey, Iran,

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Afghanistan, Pakistan, India, Nepal, Bhutan and Burma.

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On April 4, 1905, an earthquake of 7.8 magnitude hit Kangra killing 20,000 people, 53,000 domestic animals while one lakh houses were destroyed. Economic Cost of recovery was estimated at 29 lakhs during that time. On January 19, 1975, a quake of 6.8 magnitude hit Kinnaur killing 60 people while 100 others were badly injured. About 2,000 dwellings were devastated and more than 2,500 people were rendered homeless. On April 26, 1986 in Dharamshala a tremor of 5.5 magnitude had killed six people and caused extensive damage to buildings and the loss was estimated at 65 crore. In Chamba, on March 24, 1995, an earthquake of 4.9 magnitude had left over 70% houses with cracks. Similarly, on July 29, 1997, a quake of 5.0 magnitude had left around 1,000 houses damaged in Sundernagar.

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Once such gruesome realities exist, can the unauthorized structures still be regularized by encouraging violators only to contribute to the rapid haphazard urban growth in the hope that the government will finally regularize the structures? This simply cannot be done. It cannot be denied that haphazard, unplanned and illegal constructions have marred the beauty of hill towns in Himachal Pradesh, more particularly, its capital Shimla. It is high time that the building byelaws are suitably amended by taking into consideration the recent seismic activity that has taken place in the entire Himalayan region.”

¶176

Eventually, inter alia, following direction was issued:

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“xix) The respondents are further restrained from introducing any retention/regularization policy, guidelines or instructions thereby permitting regularization of unauthorized structures.”

¶178

Prevalent “grim situation” and the serious view taken by the Court, in CWP No.673 of 2005, titled as

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Thakur Singh v. State of H.P. (SB; 7.8.2009), also stands taken note of by the Legislators.

¶181

Thus since the year 1994, this Court, repeatedly, has not only reprimanded the Government but also directed strict action to be taken against the defaulters, including the corrupt officials.

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Disaster Management – Policy of State of Himachal Pradesh

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On 27.3.2012 the State Government (Cabinet) approved the Himachal Pradesh State Policy on Disaster Management, 2011, so prepared by its Department of Revenue. Well this public document is really an eye opener. It reveals the potential risks to which the State can possibly be exposed in the event of an unfortunate incident of earthquake(s), landslide(s), flash flood(s), snow storm(s) & avalanche(s), drought(s), dam failure(s), fires or other natural calamities. Relevant portion whereof reads as under:

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“1.2.1 State of Himachal is prone to various hazards both natural and manmade. Main hazards consist of earthquakes, landslides, flash floods, snow storms and avalanches, droughts, dam failures, fires – domestic and wild, accidents – road, rail, air, stampedes, boat capsizing, biological, industrial and hazardous chemicals etc. The hazard which however, poses biggest threat to the State is the earthquake hazard. The State has been shaken more than 80 times by earthquakes having a magnitude of 4 and above

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on the Richter Scale as per the recorded history of earthquakes. As per the BIS seismic zoning map five districts of the State, namely Chamba (53.2%) Hamirpur (90.9%), Kangra (98.6%), Kullu (53.1%), Mandi (97.4%) have 53 to 98.6 percent of their area liable to the severest design intensity of MSK IX or more, the remaining area of these districts being liable to the next severe intensity VIII. Two districts, Bilaspur (25.3%) and Una (37.0%) also have substantial area in MSK IX and rest in MSK VIII. The remaining districts also are liable to intensity VIII.

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1.2.2 Unfortunately, in spite of the probable maximum seismic intensities being high, the house types mostly fall under Category A, consisting of walls of clay mud, unburnt bricks or random rubble masonry without any earthquake resisting features. Now all such houses are liable to total collapse if intensity IX or more actually occurs in future and will have severe damage called “destruction” with very large cracks and partial collapses even in intensity VIII areas. Also, the burnt-brick houses, classified as Category B, as built in Himachal Pradesh do not have the earthquake resisting features, namely good cement mortar seismic bands and roof typing etc. therefore, they will also be liable to severe damage under intensity IX as well as in VIII when ever such an earthquake would occur. This became quite evident even in M 5.7 Dharamshala earthquake of 1986.

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1.2.3 Another form of the natural hazards in the state is the frequent occurrence of landslides. The hills and mountains of Himachal Pradesh are liable to suffer landslides during monsoons and also in high intensity earthquakes. The vulnerability of the geologically young and not so stable steep slopes in various Himalayan ranges, has been increasing at a rapid rate in the recent decade due to inappropriate human activity like deforestation, road cutting, terracing and changes in agriculture crops requiring more intense watering etc. Although widespread floods problems do not exist in the state because of topographical nature, continuing attention is necessary to reduce flood hazards in the state, more particularly the flash flood hazard the

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incidences of which are increasing causing large scale damage. Besides, with the increase of road connectivity and number of vehicles plying on these roads in the State, the number of road accidents and loss of precious human lives is increasing day by day.”

¶191

It is evident that for more than two decades, repeatedly, this court has deprecated the practice adopted by the State in perpetuating such dishonesty.

¶192

The Comptroller and Auditor General of India, in Report No. 3 of 2017 – Social General Economic Sectors (Non PSUs) for the year ended 31^st December, 2016, while commenting upon the Retention Policy of the State, clearly stated that ineffective enforcement of regulations enabled flourishing of unauthorized construction of buildings which were subsequently regularized, violating every conceivable control, check, including approved plan, in violation of the public policy as laid down under the parent Act. Granting of such exemptions was against public interest, safety, health and the environment.

¶193

The Minister-in-Charge himself noticed the view expressed by this Court in Thakur Singh (supra), pointing out the “grim situation” with regard to unauthorized constructions, coupled with the direction to

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¶195

the State Government to desist from framing Retention Policy, permitting regularization of such constructions.

¶196

Well, all this was in relation to the exercise of power by the Government or the functionaries/ delegatees and in relation to inaction, non-action or policy matters.

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Yes, we are conscious of the fact that legislation has to be dealt with differently and that too within the restrictive parameters of law.

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Before we examine the same, let us also see as to how the Hon’ble Supreme Court has emphasized the need for planned development and dealt with the issue of unauthorized constructions.

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Need for Planned Development – Supreme Court of India

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The Apex court in Manohar Joshi v. State of Maharashtra, (2012) 3 SCC 619 (two-Judge Bench), emphasized the need of planned development in the following terms:

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“197. The significance of planning in a developing country cannot be understated …..” “…..The leaders of Indian Freedom Movement and particularly Pandit Jawaharlal Nehru, our first Prime Minister always emphasised democratic planning as a method of nation building and economic and social upliftment of Indian society.”

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… Nehru believed in participation of different sections of society in framing of the Plan.

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The emphasis has always been amongst others to put land to the best use from the point of the requirements of our society, since land is a scarce resource and it has to be used for the optimum benefit of the society.

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As stated above, we adopted the model of democratic planning which involves the participation of the citizens, planners, administrators, Municipal bodies and the Government as is also seen throughout the MRTP Act. Thus when it comes to the Development Plan for a city, at the initial stage itself there is the consideration of the present and future requirements of the city. Suggestions and objections of the citizens are invited with respect to the proposed plan, and then the planners apply their mind to arrive at the plan which is prepared after a scientific study, and which will be implemented ….”

¶206

The Apex Court (two-Judge Bench) in Pratibha

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Co-operative Housing Society v. State of Maharashtra, (1991) 3 SCC 341 (two-Judge Bench), took note of increasing tendency of raising unauthorized constructions and encroachments, throughout the entire country, emphasizing the need to deal with firmly. It further held (i) unlawful constructions are against public interest, (ii) they are hazardous to safety of the occupiers and residents, (iii) it is a bounden duty of the citizen to obey, (iv) follow the rules made for their own benefits and (v) which was in larger public interest.

¶208

In Padma v. Hirala Motilal Desarda and others, (2002) 7 SCC 564, the Apex Court (two-Judge Bench)

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emphasized that laws dealing with “development planning are indispensable to sanitation and healthy urbanization”, which, comprehensively takes care of statutory, manual, administrative and land-use laws hand in hand with architectural creativity. Further, “In the words of a well-known architect, development planning is the DNA of urbanization - the genetic code that determines what will get built. A development plan is essential to aesthetics of urban society. American Jurisprudence 2d (Volume 82, at page 388) states:

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“‘Planning', as that term is used in connection with community development, is a generic term, rather than a word of art, and has no fixed meaning. Broadly speaking, however, the term connotes the systematic development of a community or an area with particular reference to the location, character, and extent of streets, squares, and parks, and to kindred mapping and charting. Planning has in view the physical development of the community and its environs in relation to its social and economic well-being for the fulfillment of the rightful common destiny, according to a "master plan" based on careful and comprehensive surveys and studies of present conditions and the prospects of future growth of the municipality, and embodying scientific teaching and creative experience." 32. The significance of a development planning cannot therefore be denied. Planned development is the crucial zone that strikes a balance between the needs or large-scale urbanization and individual building. It is the science and aesthetics of urbanization as it saves the development from chaos and uglification. A departure from planning may result in disfiguration of the beauty of an upcoming city and may pose a threat for the

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ecological balance and environmental safeguards.”

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(Emphasis supplied)

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In Howrah Municipal Corporation & others v.

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Ganges of Rope Co. Ltd. & others, (2004) 1 SCC 663, the Apex Court held that in the matter of sanction of buildings for construction and restricting their height, paramount consideration is public interest and convenience and not the interest of a particular person or a party.

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In Friends Colony Development Committee v. State of Orissa and others, (2004) 8 SCC 733, the Apex Court (two-Judge Bench) emphasized the need for regulating construction activity. It observed that:

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“24. Structural and lot area regulations authorize the municipal authorities to regulate and restrict the height, number of stories and other structures; the percentage of a plot that may be occupied; the size of yards, courts, and open spaces; the density of population; and the location and use of buildings and structures. All these have in view and do achieve the larger purpose of the public health, safety or general welfare. So are front setback provisions, average alignments and structural alterations. Any violation of zoning and regulation laws takes the toll in terms of public welfare and convenience being sacrificed apart from the risk, inconvenience and hardship which is posed to the occupants of the building. [for a detailed discussion reference may be had to the chapter on “Zoning and Planning” in American Jurisprudence, 2d, Vol. 82. ]

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Though the municipal laws permit deviations from sanctioned constructions being regularized

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by compounding but that is by way of exception. Unfortunately, the exception, with the lapse of time and frequent exercise of the discretionary power conferred by such exception, has become the rule. Only such deviations deserve to be condoned as are bona fide or are attributable to some mis-understanding or are such deviations as where the benefit gained by demolition would be far less than the disadvantage suffered. Other than these, deliberate deviations do not deserve to be condoned and compounded. Compounding of deviations ought to be kept at a bare minimum……….”

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(Emphasis supplied)

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In Royal Paradise Hotel (P) Ltd. v. State of

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Haryana and others, (2006) 7 SCC 597 (three-Judge Bench), the Apex Court has held that:

¶225

“8. ………. Even otherwise, compounding is not to be done when the violations are deliberate, designed, reckless or motivated. Marginal or insignificant accidental violations unconsciously made after trying to comply with all the requirements of the law can alone qualify for regularization which is not the rule, but a rare exception…..”

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(Emphasis supplied)

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66. In Chairman, Indore Vikas Pradhikaran v. Pure

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Industrial Coke & Chemicals Ltd. and others, (2007) 8 SCC 705, the Apex Court (two-Judge Bench) held that:

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“53. The right of property is now considered to be not only a constitutional right but also a human right.”

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The Apex Court (two-Judge Bench) in Shanti

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Sports Club and another v. Union of India and others, (2009) 15 SCC 705 (two-Judge Bench), has held as under:

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“74. In last four decades, almost all cities, big or small, have seen unplanned growth. In the 21st century, the menace of illegal and unauthorized constructions and encroachments has acquired monstrous proportions and everyone has been paying heavy price for the same. Economically affluent people and those having support of the political and executive apparatus of the State have constructed buildings, commercial complexes, multiplexes, malls etc. in blatant violation of the municipal and town planning laws, master plans, zonal development plans and even the sanctioned building plans. In most of the cases of illegal or unauthorized constructions, the officers of the municipal and other regulatory bodies turn blind eye either due to the influence of higher functionaries of the State or other extraneous reasons. Those who construct buildings in violation of the relevant statutory provisions, master plan etc. and those who directly or indirectly abet such violations are totally unmindful of the grave consequences of their actions and/or omissions on the present as well as future generations of the country which will be forced to live in unplanned cities and urban areas. The people belonging to this class do not realize that the constructions made in violation of the relevant laws, master plan or zonal development plan or sanctioned building plan or the building is used for a purpose other than the one specified in the relevant statute or the master plan etc., such constructions put unbearable burden on the public facilities/amenities like water, electricity, sewerage etc. apart from creating chaos on the roads. The pollution caused due to traffic congestion affects the health of the road users. The pedestrians and people belonging to weaker sections of the society, who cannot afford the luxury of air-conditioned cars, are the worst victims of pollution. They suffer from skin diseases of different types, asthma, allergies and even more dreaded diseases like cancer. It can only be a matter of imagination how much the government has to spend on the treatment of such persons and also for controlling pollution and adverse impact on the environment due to traffic congestion on the roads and chaotic conditions created due to illegal and unauthorized constructions. This Court has, from time to time,

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taken cognizance of buildings constructed in violation of municipal and other laws and emphasized that no compromise should be made with the town planning scheme and no relief should be given to the violator of the town planning scheme etc. on the ground that he has spent substantial amount on construction of the buildings etc…….”

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(Emphasis supplied)

¶237

In Priyanka Estates International Private Limited & others v. State of Assam & others, (2010) 2 SCC 27, the Apex Court (two-Judge Bench), held that if unauthorised constructions are allowed to stand or given a seal of approval by court then it is bound to affect the public at large. An individual has a right, including a fundamental right, within a reasonable limit, it inroads the public rights leading to public inconvenience, therefore, it is to be curtailed to that extent.

¶238

In M.C. Mehta v. Union of India & others, (2006) 3 SCC 399 (three-Judge Bench), the Apex Court observed:

¶239

“61. … If the laws are not enforced and the orders of the courts to enforce and implement the laws are ignored, the result can only be total lawlessness. ………… action is also necessary to check corruption, nepotism and total apathy towards the rights of the citizens.”

¶240

(Emphasis supplied)

¶241

In Dipak Kumar Mukherjee v. Kolkata Municipal Corporation and others, (2013) 5 SCC 336, the Apex Court (two-Judge Bench) emphasized the need for

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checking illegal and unauthorized construction of buildings and other structures for not only it does violence to the Municipal Laws and the concept of planned development of a particular area but “also affects various fundamental and constitutional rights of other persons”. The Court further held that the common man feel cheated when he finds that those making illegal and unauthorized constructions are supported by the people entrusted with the duty of preparing and executing the developmental plans.

¶244

The Apex Court in Esha Ekta Apartments Cooperative Housing Society Limited and others v. Municipal Corporation of Mumbai and others, (2013) 5 SCC 357 (two-Judge Bench), has held that:

¶245

“1. In last five decades, the provisions contained in various municipal laws for planned development of the areas to which such laws are applicable have been violated with impunity in all the cities, big or small, and those entrusted with the task of ensuring implementation of the master plan, etc., have miserably failed to perform their duties. It is highly regrettable that this is so despite the fact that this Court has, keeping in view the imperatives of preserving the ecology and environment of the area and protecting the rights of the citizens, repeatedly cautioned the concerned authorities against arbitrary regularization of illegal constructions by way of compounding and otherwise.”

¶246

(Emphasis supplied)

¶247

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In M.I. Builders Pvt. Ltd. v. Radhey Shyam Sahu, (1999) 6 SCC 464, the Apex Court, while directing demolition of a shopping complex, which was built in an illegally, arbitrary and unconstitutional manner, held that no “consideration should be shown to the builder or any other person where construction is unauthorized” and “this dicta is now almost bordering the rule of law”, in the following terms:

¶249

“73. The High Court has directed dismantling of the whole project and for restoration of the park to its original condition. This Court in numerous decisions has held that no consideration should be shown to the builder or any other person where construction is �unauthorized. This dicta is now almost bordering rule of law. Stress was laid by the appellant and the prospective allottees of the shops to exercise judicial discretion in moulding the relief. Such discretion cannot be exercised which encourages illegality or perpetuates an illegality. Unauthorised construction, if it is illegal and cannot be compounded, has to be demolished. There is no way out. Judicial discretion cannot be guided by expediency. Courts are not free from statutory fetters. Justice is to be rendered in accordance with law. Judges are not entitled to exercise discretion wearing robes of judicial discretion and pass orders based solely on their personal predilections and peculiar dispositions. Judicial discretion wherever it is required to be exercised has to be in accordance with law and set legal principles. As will be seen in moulding the relief in the present case and allowing one of the blocks meant for parking to stand we have been guided by the obligatory duties of the Mahapalika to construct and maintain parking lots.”

¶250

(Emphasis supplied)

¶251

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The principles stand reiterated in Bihar Finance Service House Construction Cooperative Society Ltd. v. Gautam Goswami & others, (2008) 5 SCC 339, wherein it is further held that planning statutes “subserve promotion and protection of ecology which is one of the foremost needs of society”.

¶253

From the decisions rendered by the Apex Court noticed supra, we find following principles can be culled out:

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i. Planned development is necessary.

¶255

ii. It is indispensible from sanitation and health point of view.

¶256

iii. Planning statutes sub serve promotion and protection of ecology, which is the foremost need of the society.

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iv. Violation of municipal laws affects fundamental and constitutional rights of the citizens.

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v. Right to property is not only a constitutional right but also a human right.

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vi. Larger public interest must outweigh private interest.

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vii. Illegal and unauthorized construction/non planned construction leads to unbearable burden on public facilities/ amenities.

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viii. Non enforcement of law leads to lawlessness.

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ix. Unauthorized/illegal construction is definitely a result of collusion, connivance, inaction and/or non-action on the part of the government, its functionaries.

¶264

x. Failure on the part of the Government broods corruption and nepotism.

¶265

xi. No consideration should be shown to a person carrying out unauthorized construction, which dicta is bordering rule of law.

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Again, we clarify that the aforesaid discussion

¶267

is not in the context of challenge to a legislation, but its

¶268

non-implementation and enforcement. Hence, we now proceed to examine the law on the issue, i.e. scope of judicial review of a legislation.

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Scope of Judicial Review of a Legislation

¶270

(a) Provisions of the Indian Constitution

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Articles:

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“13. Laws inconsistent with or in derogation of the fundamental rights :-

¶273

(1)

¶274

(2) The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void.”

¶275

“14. Equality before law :- The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. ”

¶276

“47. Duty of the State to raise the level of nutrition and the standard of living and to improve public health. – The State shall regard the raising of the level of

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nutrition and the standard of living of its people and the improvement of public health as among its primary duties and, in particular, the State shall endeavour to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health.”

¶279

“243ZD. Committee for district planning. – (1) …

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(3) Every District Planning Committee shall, in preparing the draft development plan, –

¶282

(a) have regard to – (i) matters of common interest between the Panchayats and the Municipalities including spatial planning, sharing of water and other physical and natural resources, the integrated development of infrastructure and environmental conservation;

¶283

243ZE. Committee of Metropolitan planning . –

¶284

(1) & (2) …

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(3) Every Metropolitan Planning Committee shall, in preparing the draft development plan, –

¶286

(a) have regard to – (i) the plans prepared by the Municipalities and the Panchayats in the Metropolitan area; …”

¶287

By virtue of the 74^th Amendment in the

¶288

Constitution, the concept of “planned development” was specifically introduced with the insertion of Part-IXA in the Constitution. Articles 243-ZD and 243-ZE mandatorily require the District/Metropolitan Committees to prepare a

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Draft Development Plan, having regard to the plans prepared by the Municipalities and the Panchayats in the Metropolitan areas. What necessarily is required to be kept in mind, inter alia, is common interest of “spatial planning” and “integrated development of infrastructure and environmental conservation”.

¶291

Article 243W empowers the State to endow Local Self-Governments with the powers for “Urban Planning including Town Planning” – Twelfth Schedule. (b) Constitution is Supreme

¶292

A Constitution Bench of the Apex Court in Rameshwar Prasad and others (VI) v. Union of India and another, (2006) 2 SCC 1 (five-Judge Bench), has held:

¶293

“244. A Constitution is a unique legal document. It enshrines a special kind of norm and stands at the top of normative pyramid. Difficult to amend, it is designed to direct human behavior for years to come. It shapes the appearance of the State and its aspirations throughout history. It determines the State's fundamental political views. It lays the foundation for its social values. It determines its commitments and orientations. It reflects the events of the past. It lays the foundation for the present. It determines how the future will look. It is philosophy, politics, society, and law all in one. Performance of all these tasks by a Constitution requires a balance of its subjective and objective elements, because "it is a constitution we are expounding." As Chief Justice Dickson of the Supreme Court of Canada noted:

¶294

“The task of expounding a constitution is crucially different from that of construing a statute. A statute defines present rights

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and obligations. It is easily enacted and as easily repealed. A constitution, by contrast, is drafted with an eye to the future. Its function is to provide a continuing framework for the legitimate exercise of governmental power and, when joined by a Bill or Charter of rights, for the unremitting protection of individual rights and liberties. Once enacted, its provisions cannot easily be repealed or amended. It must, therefore, be capable of growth and development over time to meet new social, political and historical realities often unimagined by it framers. The judiciary is the guardian of the constitution and must, in interpreting its provisions, bear these considerations in mind.””

¶297

80. In I.R. Coelho (Dead) by LRs v. State of T.N., (2007) 2 SCC 1, the Apex Court (nine-Judge Bench) held:

¶298

“48. There is a difference between Parliamentary and constitutional sovereignty. Our Constitution is framed by a Constituent Assembly which was not the Parliament. It is in the exercise of law making power by the Constituent Assembly that we have a controlled Constitution. Articles 14, 19, 21 represent the foundational values which form the basis of the rule of law. These are the principles of constitutionality which form the basis of judicial review apart from the rule of law and separation of powers. …….”

¶299

“129. Equality, rule of law, judicial review and separation of powers form parts of the basic structure of the Constitution. Each of these concepts are intimately connected. There can be no rule of law, if there is no equality before the law. These would be meaningless if the violation was not subject to the judicial review. All these would be redundant if the legislative, executive and judicial powers are vested in one organ. Therefore, the duty to decide whether the limits have been transgressed has been placed on the judiciary.”

¶300

…48…

¶301

¶302

We have ourselves researched, minutely examined and found several decisions of the Apex Court, explaining as to what really is the meaning of “equality before law”, what are the grounds on which a legislation, primary or delegated, can be assailed; what are the constraints of the Court in holding the same to be ultra vires and what is the approach which the Court must adopt in examining its constitutional validity.

¶303

To our mind, principle stands best culled out by the Apex Court in Subramaniam Swamy v. Director, Central Bureau of Investigation and another, (2014) 8 SCC 682 (five- Judge Bench) and Shayra Bano (supra).

¶304

Lest we mis-read the same, we deem it appropriate to reproduce the relevant portion of what the Apex Court observed in Subramaniam (supra):

¶305

“41. In Ram Krishna Dalmia v Justice SR Tendolkar & Ors, 1959 SCR 279, the Constitution Bench of five Judges further culled out the following principles enunciated in the above cases:

¶306

"11. … (a) that a law may be constitutional even though it relates to a single individual if, on account of some special circumstances or reasons applicable to him and not applicable to others, that single individual may be treated as a class by himself;

¶307

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(b) that there is always a presumption in favour of the constitutionality of an enactment and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional principles;

¶309

(c) that it must be presumed that the legislature understands and correctly appreciates the need of its own people, that its laws are directed to problems made manifest by experience and that its discriminations are based on adequate grounds;

¶310

(d) that the legislature is free to recognise degrees of harm and may confine its restrictions to those cases where the need is deemed to be the clearest;

¶311

(e) that in order to sustain the presumption of constitutionality the court may take into consideration matters of common knowledge, matters of common report, the history of the times and may assume every state of facts which can be conceived existing at the time of legislation; and (f) that while good faith and knowledge of the existing conditions on the part of a legislature are to be presumed, if there is nothing on the face of the law or the surrounding circumstances brought to the notice of the court on which the classification may reasonably be regarded as based, the presumption of constitutionality cannot be carried to the extent of always holding that there must be some undisclosed and unknown reasons for subjecting certain individuals or corporations to hostile or discriminating legislation."

¶312

Further:

¶313

“43. ………………

¶314

"12. ……. In determining the validity or otherwise of such a statute the court has to examine whether such classification is or

¶315

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¶316

can be reasonably regarded as based upon some differentia which distinguishes such persons or things grouped together from those left out of the group and whether such differentia has a reasonable relation to the object sought to be achieved by the statute, no matter whether the provisions of the statute are intended to apply only to a particular person or thing or only to a certain class of persons or things. Where the court finds that the classification satisfies the tests, the court will uphold the validity of the law.

¶317

(ii) A statute may direct its provisions against one individual person or thing or to several individual persons or things but no reasonable basis of classification may appear on the face of it or be deducible from the surrounding circumstances, or matters of common knowledge. In such a case the court will strike down the law as an instance of naked discrimination.”

¶318

In Nagpur Improvement Trust and Anr v Vithal Rao and Ors, (1973) 1 SCC 500, the fiveJudge Constitution Bench had an occasion to consider the test of reasonableness under Article 14 of the Constitution. It noted that the State can make a reasonable classification for the purpose of legislation and that the classification in order to be reasonable must satisfy two tests: (i) the classification must be founded on intelligible differentia and (ii) the differentia must have a rational relation with the object sought to be achieved by the legislation in question. The Court emphasized that in this regard object itself should be lawful and it cannot be discriminatory. If the object is to discriminate against one section of the minority, the discrimination cannot be justified on the ground that there is a reasonable classification because it has rational relation to the object sought to be achieved.

¶319

The constitutionality of Special Courts Bill, 1978 came up for consideration in Special Courts Bill, 1978, In Re: President of India v. The Special Courts Bill, 1978, (1979) 1 SCC 380 as the President of India made a reference to this Court

¶320

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¶321

under Article 143(1) of the Constitution for consideration of the question whether the "Special Courts Bill" or any of its provisions, if enacted would be constitutionally invalid. The seven Judge Constitution Bench dealt with the scope of Article 14 of the Constitution. Noticing the earlier decisions of this Court in Budhan Choudhry v. State of Bihar, AIR 1955 SC 191, Ram Krishna Dalmia v. S.R. Tendolkar, AIR 1958 SC 538, CI Emden v State of U.P., 1960 2 SCR 592, Kangsari Haldar & Anr v State of West Bengal, 1960 2 SCR 646, Jyoti Pershad v. UT of Delhi, AIR 1961 SC 457 and State of Gujarat & Anr v Shri Ambica Mills Ltd, Ahmedabad & Anr, (1974) 3 SCR 760, in the majority judgment the then Chief Justice Y.V. Chandrachud, inter alia, exposited the following propositions relating to Article 14:

¶322

(2) The State, in the exercise of its governmental power, has of necessity to make laws operating differently on different groups or classes of persons within its territory to attain particular ends in giving effect to its policies, and it must possess for that purpose large powers of distinguishing and classifying persons or things to be subjected to such laws.

¶323

(5) By the process of classification, the State has the power of determining who should be regarded as a class for purposes of legislation and in relation to a law enacted on a particular subject. This power, no doubt, in some degree is likely to produce some inequality; but if a law deals with the liberties of a number of well- defined classes, it is not open to the charge of denial of equal protection on the ground that it has no application to other persons. Classification thus means segregation in classes which have a systematic relation, usually found in common properties and characteristics. It postulates a rational basis

¶324

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¶325

and does not mean herding together of certain persons and classes arbitrarily.

¶326

(6) The law can make and set apart the classes according to the needs and exigencies of the society and as suggested by experience. It can recognise even degree of evil, but the classification should never be arbitrary, artificial or evasive.

¶327

(7) The classification must not be arbitrary but must be rational, that is to say, it must not only be based on some qualities or characteristics which are to be found in all the persons grouped together and not in others who are left out but those qualities or characteristics must have a reasonable relation to the object of the legislation. In order to pass the test, two conditions must be fulfilled, namely, (1) that the classification must be founded on an intelligible differentia which distinguishes those that are grouped together from others and (2) that that differentia must have a rational relation to the object sought to be achieved by the Act.”

¶328

84. What is “arbitrary” also stands explained by

¶329

the Apex Court in Mrs. Maneka Gandhi v. Union of India &

¶330

another, (1978) 1 SCC 248, where it held that:

¶331

“7. Now, the question immediately arises as to what is the requirement of Article 14 : what is the content and reach of the great equalising principle enunciated in this article ? There can be no doubt that it is a founding faith of the Constitution. It is indeed the pillar on which rests securely the foundation of our democratic republic. And, therefore, it must not be subjected to a narrow, pedantic or lexicographic approach._ No attempt should be made to truncate its all embracing scope and meaning for, to do so would be to violate its activist magnitude. Equality is a dynamic concept with many aspects and dimensions and it cannot be imprisoned within traditional and doctrinaire limits. We must

¶332

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¶333

reiterate here what was pointed out by the majority in E. P. Royappa v. State of Tamil Nadu & Another,1974 2 SCR 348 namely, that "from a positivistic point of view, equality is antithetic to arbitrariness. In fact equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic, while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Article 14". ……..”

¶334

(Emphasis supplied)

¶335

A Constitution Bench of the Apex Court in State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat & others, (2005) 8 SCC 534 (seven-Judge Bench), held:

¶336

“40. In State of Kerala v. N. M. Thomas, (1976) 2 SCC 310, also a seven-Judge bench of this Court culled out and summarized the ratio of this Court in Kesavananda bharati. Fazal Ali, J. extracted and set out the relevant extract from the opinion of several Judges in Kesavananda Bharati and then opined:

¶337

"164. In view of the principles adumbrated by this court it is clear that the directive principles form the fundamental feature and the social conscience of the Constitution and the Constitution enjoins upon the State to implement these directive principles. The directives thus provide the policy, the guidelines and the end of socio-economic freedom and Articles 14 and 16 are the means to implement the policy to achieve the ends sought to be promoted by the directive principles. So far as the courts are concerned where there is no apparent inconsistency between the directive principles contained in Part IV and the fundamental rights mentioned in Part III, which in fact supplement each other, there is no difficulty in putting a harmonious construction which advances the object of the Constitution. Once this basic fact is kept in mind, the interpretation of Articles 14 and

¶338

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¶339

16 and their scope and ambit become as clear as day."

¶340

… A restriction placed on any Fundamental right, aimed at securing Directive Principles will be held as reasonable and hence intra vires subject to two limitations: first, that it does not run in clear conflict with the fundamental right, and secondly that it has been enacted within the legislative competence of the enacting legislature under Part xi Chapter I of the Constitution.”

¶341

(Emphasis supplied)

¶342

In the present case, respondents made an argument that in exercise of power under judicial review striking down a legislation only on the basis of “arbitrariness” is not permissible in view of State of Andhra Pradesh v. McDowell & Co., (1996) 3 SCC 709 and Binoy Viswam (supra). The submission needs to be rejected in view of authoritative pronouncement of the Constitution Bench (3:2) in Shayra Bano (supra), which states, in no uncertain terms, in Paragraph-99, that both these judgments were in fact per incurium, and that laws/legislations can be struck down on the ground of arbitrariness, if found to be violative of Article 14. It held:

¶343

“87. The thread of reasonableness runs through the entire fundamental rights Chapter. What is manifestly arbitrary is obviously unreasonable and being contrary to the rule of law, would violate Article 14. Further, there is an apparent contradiction in the three Judges’ Bench decision in State of A.P. v. McDowell and Co., (1996) 3 SCC 709, when it is said that a constitutional challenge can succeed on the ground that a law is “disproportionate, excessive or unreasonable”, yet

¶344

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¶345

such challenge would fail on the very ground of the law being “unreasonable, unnecessary or unwarranted”. The arbitrariness doctrine when applied to legislation obviously would not involve the latter challenge but would only involve a law being disproportionate, excessive or otherwise being manifestly unreasonable. All the aforesaid grounds, therefore, do not seek to differentiate between State action in its various forms, all of which are interdicted if they fall foul of the fundamental rights guaranteed to persons and citizens in Part III of the Constitution.”

¶346

“99. However, in State of Bihar v. Bihar Distillery Ltd., (1997) 2 SCC 453 at paragraph 22, in State of M.P. v. Rakesh Kohli, (2012) 6 SCC 312 at paragraphs 17 to 19, in Rajbala v. State of Haryana & Ors., (2016) 2 SCC 445 at paragraphs 53 to 65 and Binoy Viswam v. Union of India, (2017) 7 SCC 59 at paragraphs 80 to 82, McDowell (supra) was read as being an absolute bar to the use of “arbitrariness” as a tool to strike down legislation under Article 14. As has been noted by us earlier in this judgment, Mcdowell (supra) itself is per incuriam, not having noticed several judgments of Benches of equal or higher strength, its reasoning even otherwise being flawed. The judgments, following McDowell (supra) are, therefore, no longer good law.”

¶347

…………..

¶348

Also, in Sharma Transport v. State of A.P. [(2002) 2 SCC 188], this Court held: (SCC pp. 203-04, para 25) “25. … The tests of arbitrary action applicable to executive action do not necessarily apply to delegated legislation. In order to strike down a delegated legislation as arbitrary it has to be established that there is manifest arbitrariness. In order to be described as arbitrary, it must be shown that it was not reasonable and manifestly arbitrary. The expression “arbitrarily” means: in an unreasonable manner, as fixed or done capriciously or at pleasure, without adequate determining principle, not founded in the nature of things, non-rational, not

¶349

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¶350

done or acting according to reason or judgment, depending on the will alone.” (at pages 736-737)

¶351

It will be noticed that a Constitution Bench of this Court in Indian Express Newspapers v. Union of India, (1985) 1 SCC 641, stated that it was settled law that subordinate legislation can be challenged on any of the grounds available for challenge against plenary legislation. This being the case, there is no rational distinction between the two types of legislation when it comes to this ground of challenge under Article 14. The test of manifest arbitrariness, therefore, as laid down in the aforesaid judgments would apply to invalidate legislation as well as subordinate legislation under Article 14. Manifest arbitrariness, therefore, must be something done by the legislature capriciously, irrationally and/or without adequate determining principle. Also, when something is done which is excessive and disproportionate, such 391 legislation would be manifestly arbitrary. We are, therefore, of the view that arbitrariness in the sense of manifest arbitrariness as pointed out by us above would apply to negate legislation as well under Article 14.”

¶352

(Emphasis supplied)

¶353

The Apex Court in K.R. Lakshmanan (Dr.) v. State of Tamil Nadu, (1996) 2 SCC 226 (three-Judge Bench) struck down a 1986 Tamil Nadu Act on the ground that it was arbitrary and, therefore, violative of Article 14. Two separate arguments were addressed under Article 14. One that the Act in question was discriminatory and, therefore, violative of Article 14. The other that in any case the Act was arbitrary and for that reason would also violate the separate facet of Article 14. The issues were

¶354

decided as under:

¶355

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¶356

“48. … We fail to understand how the State Government can acquire and take over the functioning of the race club when it has already enacted the 1974 Act with the avowed object of declaring horse racing as gambling? Having enacted a law to abolish betting on horse racing and stoutly defending the same before this Court in the name of public good and public morality, it is not open to the State Government to acquire the undertaking of horse racing again in the name of public good and public purpose. It is ex-facie irrational to invoke "public good and public purpose" for declaring horse racing as gambling and as such prohibited under law, and at the same time speak of "public purpose and public good" for acquiring the race club and conducting the horse racing by the Government itself. Arbitrariness is writ large on the face of the provisions of the 1985 Act.”

¶357

Article 14 is not meant to perpetuate illegality or fraud. It has a positive concept. Equality is a trite, which cannot be claimed in illegality and therefore, cannot be enforced by a citizen or Court in a negative manner. (Fuljit Kaur v. State of Punjab and others, (2010) 11 SCC 455).

¶358

Binding Effect of Consumer Action Group (2000) 7 SCC 425

¶359

Respondents heavily seek reliance on the law laid down by the Apex Court in Consumer Action Group (supra). According to the State, provisions of Section 113-A of the Tamil Nadu Town and Country Planning Act, 1971, subject matter of challenge in the said decision,

¶360

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¶361

are similar, if not para materia, with the Amending Act (Section 30-B), subject matter of the present petitions.

¶362

89.1. Is it, as is so argued by the respondents, that the issues being identical, stood settled by the Apex Court and are thus no long res integra. Well, we minutely proceed to examine the provisions, which led to the amendments in the respective statutes.

¶363

89.2. The Apex court was seized of three issues, (a) the constitutional validity of Section 113 of the Tamil Nadu Town and Country Planning Act, 1971, (b) the Government Orders (G.O.), 62 in number, issued in terms thereof, and (c) constitutional validity of newly inserted Section 113-A.

¶364

89.3. The Court upheld the provisions of Sections 113 and 113-A, as a valid piece of legislation and quashed the Government orders being unsustainable in law.

¶365

Issue (a)

¶366

89.4. While holding Section 113 not to suffer from the vice of excessive delegation of any essential legislative function, and also not being ultra vires the Constitution, in Para-21 of the Report, the Court elaborately discussed the “Preamble”, “Objects and

¶367

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¶368

Reasons” and other provisions of the Act, providing a clear cut policy and guidelines to the Government in exercise of its power, and as such held it not to be unbridled or without any guidelines, the ground on which challenge was laid. Para-21 of the Report is clear to such effect.

¶369

Issue (b)

¶370

89.5. However, while dealing with the 62 Government orders, issued in exercise of power under Section 113, Court clarified that there “is a clear distinction between a provision to be ultra vires as delegation of power being excessive and the exercise of

¶371

power by such delegatee to be arbitrary or illegal”. The orders revealed non-application of mind by giving a total go-by to the very object and purpose of the Act and the Rules framed thereunder.

¶372

Issue (c)

¶373

89.6. Section 113-A of the T.N. Act reads as under:

¶374

"113-A. Exemption in respect of development of certain lands or buildings. -

¶375

(1) Notwithstanding anything contained in this Act or any other law for the time being in force, the Government or any officer or authority authorised by the Government, by notification, in this behalf may, on application, by order, exempt any land or

¶376

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¶377

building or class of lands or buildings developed immediately before the date of commencement of the Tamil Nadu Town and Country Planning (Amendment) Act, 1998 (hereafter in this section referred to as the said date) in the Chennai Metropolitan Planning Area, from all or or any of the provisions of this Act or any rule or regulation made thereunder, by collecting regularisation fee at such rate not exceeding twenty thousand rupees per square metre, as may be prescribed. Different rates may be prescribed for different planning parametres and for different parts of the Chennai Metropolitan Planning Area.

¶378

(2) The application under sub-section (1) shall be made within ninety days from the said date in such form containing such particulars and with such documents and such application fee, as may be prescribed.

¶379

(3) Upon the issue of the order under subsection (1), permission shall be deemed to have been granted under this Act for such development of land or building.

¶380

(4) Nothing contained in sub-section (1) shall apply to any application made by any person who does not have any right over the land or building referred to in subsection (1).

¶381

(5) Save as otherwise provided in this section, the provisions of this Act, or other laws for the time being in force, and rules or regulations made thereunder, shall apply to the development of land or building referred to in sub-section (1).

¶382

(6) Any person aggrieved by any order passed under sub-section (1) by any Officer or authority may prefer an appeal to the Government within thirty days from the date of receipt of the order."

¶383

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¶384

89.7. In Para-34 of the Report, the Court observed that the Section “seeks to legitimize all violations under the Act, Rules and Regulations and condones all executive acts which is the cause of reaching this situation by not taking appropriate action as against such illegal construction which they were obliged to do under the Act. When the Government and other statutory functionaries failed to work, to promote planned development to this extent, the Legislature has to intervene to bring this amendment”.

¶385

89.8. In Para-35 of the Report, Court reproduced the ‘Objects and Reasons’ for incorporating the Section and in Para-36 itself highlighted the same:

¶386

(a) aberrations in the urban development were noticed in the Chennai Metropolitan areas, including Chennai;

¶387

(b) huge disparities between people’s income and property value, together tempt the builders to violate the rules and the buyers to opt for such properties in the city of Chennai;

¶388

(c) on a rough estimate three lakh buildings (approximately 50% of the total number of buildings) in Chennai were unauthorized;

¶389

(d) statutory period of three years for initiating process of demolition stood expired;

¶390

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¶391

(e) administratively also demolition of such a large number of cases was neither feasible nor desirable, for it could have resulted in undue hardship to the owners and occupants;

¶392

(f) and considering the practice followed in other Metropolitan cities of the country, the State took a policy decision to exempt buildings and lands by collecting regularisation fee.

¶393

89.9. It is in this backdrop, did the Court uphold the

¶394

validity of the Act, but with a word of caution, in the following terms:

¶395

“37. Mere reading of this reveals, administrative failure, regulatory inefficiency and laxity on the part of the concerned authorities being conceded which has led to the result, that half of the city buildings are unauthorised, violating the town planning legislation and with staring eyes Government feels helpless to let it pass, as the period of limitation has gone, so no action could be taken. This mess is the creation out of the inefficiency, callousness and the failure of the statutory functionaries to perform their obligation under the Act. Because of the largeness of the illegalities it has placed the Government in a situation of helplessness as knowing illegalities, which is writ large no administratively action of demolition of such a large number of cases is feasible. ……..”

¶396

“38. We may shortly refer to the possible consequences of the grant of such exemption under Section 113-A by collecting regularisation fees. Regularisation in many cases, for the violation of, front set-back, will not make it easily feasible for the Corporation to widen the abutting road in future and bring the incumbent closer to the danger of the road. The waiver of requirements of side set-back will deprive adjacent buildings and their occupants of light and air and also make it impossible for a fire engine to be used to fight a fire in a high rise building. The violation of floor space index will result in undue strain on the civil amenities such as water,

¶397

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¶398

electricity, sewage collection and disposal. The waiver of requirements regarding fire staircase and other fire prevention and fire fighting measures would seriously endanger the occupants resulting in the building becoming a veritable death trap. The waiver of car parking and abutting road width requirements would inevitably lead to congestion on public roads causing severe inconvenience to the public at large. Such grant of exemption and the regularisation is likely to spell ruin of any city as it affects the lives, health, safety and convenience of all its citizens. This provision, as we have said, cannot be held to be invalid as it is within the competence of State Legislature to legislate based on its policy decision, but it is a matter of concern. ……. When there is any provision to make illegal construction valid on ground of limitation, then it must mean Statutory Authority in spite of knowledge has not taken any action……..”

¶399

89.10. Can it be said that very same factors, which weighed with the Apex Court, in upholding the legislation, exist in the instant case? In our considered view, no. It is not a onetime measure. For the last more than two decades, functionaries of the State, in collusion or otherwise, have allowed dishonesty to be perpetuated, by bringing in not less than seven policies of retention of unauthorized construction. Well, the legislation may be the first one, but then there is also no similarity of attending factors between the two.

¶400

Here, there is no statutory limitation in initiating action against the defaulter; no law and order problem; no huge cost is to be incurred by the State for

¶401

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¶402

carrying out demolition; expense can be recovered from the violators; administratively demolition is feasible; in the last 17 years much law has changed and evolved, making right to live in a healthy atmosphere, in a planned city/town/area to be a constitutional right; the Planning Act covers the entire State and not a single township or its surrounding areas, unlike Chennai alone.

¶403

Duty of the State is to govern. Governance includes implementation of the statutes in existence. Failure of the government, in having the provisions of a statute implemented, amounts to failure in governance. This failure in governance by a Government cannot be permitted to be condoned by incorporation of such like amendments, resulting into condoning mis-governance. 92. It promotes dishonesty and encourages violation of law. Significantly, no action stands taken against the erring officials, who, in connivance, allowed such construction to be raised, throughout the State. It is not that thousands of unauthorized structures came up overnight. The officials failed to discharge their duties. The functionaries adopted an ostrich like attitude and approach, violating human and legal rights of an honest resident of the State. Haphazard construction is in fact a

¶404

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¶405

threat to life and property. Entire Himalayan region, falling within the territory of Himachal Pradesh, falls within the Seismic Zone Nos.V & VI. Any natural calamity, by way of an earthquake, will pose great threat to life and property of individual and that too only on account of dishonesty allowed to be perpetuated by handful residents of the State, whose functionaries have acted in a most callous manner. Their acts are no less than criminal in nature. They have rendered the provisions of the Planning Act and other municipal laws to be nugatory and otiose.

¶406

Any indulgence on the part of the State/ Legislators, in protecting such dishonesty, would lead to anarchy and destroy the democratically established institutions, also resulting into indiscrimination. This is what Shayra Bano (supra) talks of manifest arbitrariness. Also, it is excessive and capricious.

¶407

Can a statutory provision, which does violence with the Preamble and aims & objects of the Principal Act, be permitted to remain on the statute book. In our considered view, no. It is destructive of the aim and object of the Parent Statute; it defeats its laudable object; it defies the constitutional provisions; it is

¶408

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¶409

demonstratively and excessively contradictory and mutually destructive, similar to the one which the Apex Court found in K.R. Lakshmanan (Dr.) (supra).

¶410

Evidently, from the perusal of provisions of the Planning Act, the Corporation Act and the Municipal Act, all activities of building (which term used by us includes new construction, re-construction, alteration, modification. Etc.) is controlled and can be carried out after obtaining sanction from the authority concerned. Not only that such construction has to be carried out in consonance with the sanctioned plan and any construction beyond the sanctioned or compoundable limit is illegal. Consequences of carrying out illegal construction are penal. It is a criminal Act. Additionally, it violates a corresponding statutory and a constitutional right of a co-resident. Provision is there for compounding deviation, if any, made from the sanctioned plan. Even such power is not arbitrary, but regulated and guided by the Statute(s) or Rule(s) and Bye-law(s) framed thereunder.

¶411

The reason and rationale as to why construction is a controlled activity, is to ensure that planned development is carried out, be it in a Municipal

¶412

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¶413

Corporation, Municipal Council, or Nagar Panchayat, etc. It is to enforce Rule of Law. If one violates the terms of sanction or the law or carries out construction without sanction, then penal consequences ensue. This, in our considered view, is what we commonly perceive and is in fact “Rule of Law”. And any infringement thereof would result into its violence. This is precisely what the Apex Court said in M.C. Mehta (supra) (Para-70), that if laws are not enforced and orders of the courts to enforce and implement the laws are ignored, the result can only be total lawlessness.

¶414

The Amending Act confers unbridled power upon the Government or any officer or authority vested with the powers of Director, to regularize any construction carried out, i.e. to say “development of any land or building or class of lands or buildings”, on “as is where is basis”, upto any extent on payment of regularization fee, specified in Sub-section (8) of Section 30-B. There are certain exceptions to the Rule (subsection (7) of Section 30-B), but limited in nature, only to a certain degree and extent and nothing more.

¶415

Illustratively, if in a highly Seismic Zone of a hilly terrain, a building like Qutab Minar stood

¶416

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¶417

constructed, undoubtedly, it would get regularized. In other words, all illegal acts committed by an owner in violation of statutory provisions, as contemplated in the Planning Act, get condoned by one stroke of pen and that too without any accountability.

¶418

The object of the Act is not to collect fee or to utilize the same for the purpose of any development. Hence, collection of an amount, being the compounding fee, is not the answer. Nor would it work as a deterrent or make the authorities perform their functions.

¶419

By virtue of the said Section, an unfettered power is vested upon the Government to regularize all illegal constructions carried out either without any sanction or in excess of the compoundable limits.

¶420

Article 14 of the Constitution of India envisages equality before law and equal protection of law. Equality before law envisages that equals are to be treated alike and unequals are not to be treated alike. By condoning the illegal acts of the violators, who carry out construction by violating the provisions of the Planning Act, State intends to treat such law breakers equal to those persons who carried out construction by following the law. This, in our considered view, is nothing but

¶421

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¶422

arbitrariness, because by treating unequals alike, the State is violating Article 14 of the Constitution of India. The Amending Act is in fact legislation for a class of dishonest persons, which is also prohibited. Also, it defies logic being capricious and unreasonable. As held in Fuljit Kaur (supra), equality cannot be claimed in an illegality.

¶423

Planning Act, as it stood prior to the insertion of the amendment, recognized two classes, i.e. (a) land owners, who after obtaining sanction carry out development activity, strictly as per the development plans; and (b) land owners, who after obtaining the sanctioned plans, deviates from the same but raise constructions within the compoundable limits.

¶424

Compounding, as per the provisions of the Act, is permissible in those cases, wherein the violator is at least having a valid sanction to carry out construction activity and in the course of construction, may be due to geographical conditions or topographical location, deviated from the sanctioned plan. Not only this, compounding was also permissible to the extent envisaged under the Planning Act.

¶425

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¶426

However, by virtue of the impugned

¶427

amendment, State has created a separate and distinct class, which consists of those persons who may have or may not have any sanction to carry out any development activity and yet would stand regularized.

¶428

Article 14 of the Constitution of India permits classification, however, the said classification has to be based on an intelligible differentia and that intelligible differentia ought to have some nexus with the object to be achieved. In the present case, even if it is said that classification of the persons, so created by way of the impugned amendment, is based on intelligible differentia,

¶429

as it consists of those persons who carried out construction in violation of the statutory provisions, yet this classification, in our considered view, is not a valid classification, as envisaged under Article 14 of the Constitution of India, because regularization of illegal construction cannot be said to have nexus with the object sought to be achieved, which in any case has to be lawful. On the contrary, it negates planned development and defeats its object.

¶430

The object of the impugned amendment, i.e. to regularize all illegal constructions, in itself is violative

¶431

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¶432

of Article 14 of the Constitution of India. Additionally, it violates Articles 21, 243-ZD and 243-ZE, and the object and purpose of the Planning Act.

¶433

If the impugned amendment is permitted to remain in the Statute, it would defeat the very purpose for which the Statute was created. In other words, the impugned amendment violates the very edifice of the Principal Statute, which is that construction activity has to be carried out in a planned manner strictly in consonance with the provisions made in this regard under the relevant Laws, Rules and Bye-laws. Can the object sought to be achieved be said to be lawful, as was stated in Subramaniam Swamy (supra) – reiterating Nagpur Improvement Trust and Anr v Vithal Rao and Ors, (1973) 1 SCC 500. In our considered view, no. 108. Also, the impugned amendment does not distinguish between those who carried out unauthorized and illegal construction for residential purposes or personal use, and those who carried out such construction purely with professional motive. In fact, it puts a person who violated the law with impunity on a higher pedestal than the one who made deviations from the sanctioned plan. This we say so for the reason that

¶434

…72…

¶435

as per Table-A, for Residential Buildings, where deviation is of set-back and storeys from the sanctioned plan, compounding fee prescribed is 800/- per square metres and in the case where development is totally unauthorized, i.e. without permission, compounding fee prescribed is only 1000/- per square metre, that is to say only 200/- more as compared to a person who was at least having a sanction for raising construction. The position, with regard to the construction outside the municipal areas is no different, for the fee payable is 400/- per square metre and `500/- per square metre, respectively.

¶436

The Aim and Object of the Planning Act is to make provision for planning and development and use of land; to make provision for the preparation of development plans and sectoral plans with a view to ensure that town planning schemes are made in a proper manner and their execution made effective by constituting the authority. 110. The object of the planning area is entirely planned development in a regulated manner. This is totally in consonance with the policy of sustainable development. But then, we find the functionaries of the

¶437

…73…

¶438

State to have worked in a manner only to defeat fulfillment of such laudable object. There is no answer,

¶439

as to why till date, the Draft Plan has yet not been finalized. From the report of the Shashi Shekhar Committee (Annexure P-14), it is also evident that the Municipal Laws are only to promote and propagate as also protect environment.

¶440

We have already noticed that in the pleadings, the statute is sought to be justified without any tangible or cogent material produced before us.

¶441

The Apex Court in Sayyed Ratanbhai Sayeed (Dead) through LRs & others vs. Shirdi Nagar Panchayat & another, (2016) 4 SCC 631 observed that:

¶442

“58. The emerging situation is one where private interest is pitted against public interest. The notion of public interest synonymises collective welfare of the people and public institutions and is generally informed with the dictates of public trust doctrine – res communis i.e. by everyone in common. Perceptionally health, law and order, peace, security and a clean environment are some of the areas of public and collective good where private rights being in conflict therewith has to take a back seat. In the words of Cicero “the good of the people is the chief law”.

¶443

The Latin maxim Salus Populi Suprema Lex connotes that health, safety and welfare of the public is the supreme in law. Herbert Broom, in his celebrated publication, A Selection of Legal Maxims has elaborated the essence thereof as hereunder:

¶444

“This phrase is based on the implied agreement of every member of the society

¶445

…74…

¶446

that his own individual welfare shall, in cases of necessity, yield to that of the community; and that his property, liberty and life shall, under certain circumstances, be placed in jeopardy or even sacrificed for the public good.”

¶447

The demand of public interest, in the facts of the instant case, thus deserves precedence.”

¶448

The State owes an obligation and duty to ensure compliance of all laws, more so that of planned development, as it materially affects the rights and enjoyment of property by the persons residing within the State. ‘General public good’ must overweigh ‘private interest of dishonest citizens’. Right of a private person is to be balanced by a welfare State, keeping in view the overall general good, public health, safety and welfare of residents, also weighing ecological considerations. Rather than dealing sternly and demolishing unauthorized structures, defaulters are offered regularization on a platter. The economically affluent and perhaps close to the Executive, political or otherwise, who violated the laws with impunity, alone are going to be the beneficiaries. It is not that the authorities, including the legal bodies, did not have the wherewithal to deal with the menace, but the apathy, lethargy, insensitivity and callousness has only resulted into such a

¶449

…75…

¶450

situation. Only the will to do so is lacking. In fact, State could have exercised power under Section 35 of the Planning Act to frame a scheme for better planning of construction activity.

¶451

The effect of such regularization on safety, in terms of fire and traffic remains ignored. The fragile ecology of the State warrants demolition of all illegal constructions, which are beyond the planning and permissible limits. We repeat, excessive construction in an unplanned manner, only results into depletion of source of civic amenities, burdening the stakeholders for providing the same, beyond their limited resources and capacities. As observed in Indore Vikas Pradhikaran (supra), this impinges upon the constitutional right, acknowledged to be a human right. We see that the apprehensions expressed in Shanti Sports Club (supra) and Priyanka Estates (supra) have turned out to be true.

¶452

The science behind planning has given way to human greed and not the need, as the Minister wanted the House to believe.

¶453

The Act does not try to protect the naïve, the innocent and the people belonging to marginal sections

¶454

…76…

¶455

of society, who may have raised construction through honest means.

¶456

The “rule of law” means that decisions should be made by the application of known principles and rules and, in general, such decisions should be predictable and the citizen should know where he is. If a decision is taken without any principle or without any rule, it is unpredictable and such a decision is the antithesis of a decision taken in accordance with the rule of law. The “rule of law” as emerges from the spirit of Article 14 is that if an action is found to be arbitrary and, therefore, unreasonable, it would negate the equal protection of the law contained in Article 14 and would be struck down on this ground.

¶457

In Supreme Court Advocates-on-Record v. Union of India, (2016) 5 SCC 1 (five-Judge Bench) summarizes the facets of ‘rule of law’ through its earlier pronouncements as herein below. We are conscious that the judgment is in the backdrop of judicial independence, but then the principle of Rule of Law, in any event, would remain the same:

¶458

“292. Before considering these issues, it is necessary to appreciate the role of the Rule of Law in our constitutional history. It has been said:

¶459

…77…

¶460

'Ultimately, it is the rule of law, not the judges, which provides the foundation for personal freedom and responsible government.' 479

¶461

The Rule of Law is recognized as a basic feature of our Constitution. It is in this context that the aphorism, 'Be you ever so high, the law is above you' is acknowledged and implemented by the Judiciary. If the Rule of Law is a basic feature of our Constitution, so must be the independence of the judiciary since the 'enforcement' of the Rule of Law requires an independent judiciary as its integral and critical component.

¶462

Justice Mathew concluded in Indira Nehru Gandhi that according to some judges constituting the majority in Kesavananda Bharati the Rule of Law is a basic structure of the Constitution Paragraph 335.

¶463

In the Second Judges case Justice Pandian expressed the view that independence of the judiciary is 'inextricably linked and connected with the judicial process.' Paragraph 56 This was also ……. Paragraph 331. Justice J.S. Verma speaking for the majority and relying upon a few decisions held that the Rule of Law is a basic feature of the Constitution Paragraph 421. Similarly, Justice Punchhi (dissent) held that the Rule of Law is a basic feature of the Constitution and the independence of the judiciary is its essential attribute:

¶464

"It is said that Rule of Law is a basic feature the Constitution permeating the whole constitutional fabric. I agree. Independence of the judiciary is an essential attribute of Rule of Law, and is part of the basic structure of the Constitution. To this I also agree."”

¶465

(Emphasis supplied)

¶466

In Indira Nehru Gandhi v. Raj Narain, AIR 1975 SC 2299 : 1975 (Supp1) SCC 1 (five-Judge Bench), wherein the Apex Court invalidated Clause (4) of Article

¶467

…78…

¶468

329-A, inserted in the Constitution by the Constitution (39^th Amendment) Act, 1975, to immunize the election dispute to the office of the Prime Minister from any kind of judicial review, the following facets of “Rule of Law” may be culled out:

¶469

i. that, the Rule of Law postulates the pervasiveness of the spirit of law throughout the whole range of government in the sense of excluding arbitrary official action in any sphere, para 336, per Mathew, J.

¶470

ii. that, the jurisdiction of the Supreme Court to try a case on merits cannot be taken away without injury to the basic postulates of “the Rule of Law” and of justice within a politically democratic constitutional structure, para 623, per Beg, J

¶471

iii. that, since the validation of the Prime Minister’s election was not by applying any law, therefore, clause (4) of Article 329-A, offended the Rule of Law, para 59, per Ray, C.J.

¶472

As noticed earlier, in Subramaniam Swamy (supra), the Apex Court held that “breach of rule of law” amounts to “negation of equality under Article 14”, and that “rule of law” is facet of equality under Article 14 and “breach of law” amounts to breach of equality under Article 14, and therefore, breach of rule of law may be a ground for invalidating the legislation being in negation of Article 14 (Para 86 of the Report).

¶473

…79…

¶474

The enactment tantamounts to saying that “violation of law is permissible if one has the means required to pay for such violation”.

¶475

Though in a totally different context, but while emphasizing the importance and significance of application of strict adherence and application to the Municipal Laws and its co-relation with the environment, affecting human health, the Apex Court in Milk Producers Association, Orissa & others v. State of Orissa & others, (2006) 3 SCC 229, reiterated its earlier view, holding that several factors, including flora & fauna and water quality maintenance and impact on health and rehabilitation, are relevant factors for the maintenance of ecology. Both, right to development and environment, are fundamental rights. Sustainable development is to be treated as an integral part of “life” under Article 21.

¶476

The power under the Planning Act is not a power simpliciter, but power coupled with duty. Without strict compliance to the Municipal Laws, Right to Environment, under Article 21, would be negated.

¶477

Planned development is the “Rule of Law”. It is not a judge made law. It is not a common law principle. It emanates only from the Constitution and, thus, any law

¶478

…80…

¶479

which impinges or infringes the constitutional mandate under no circumstances can survive the test of reasonableness or arbitrariness. No legislation can be enacted to defeat the constitutional mandate. Planned development is a social justice concept and this is what we understand what the Constitution Framers had envisaged, when the expression “JUSTICE, social, ……..” came to he inserted in the Preamble of the Indian Constitution. The constitutional mandate of Planned Development, as we have noticed, is not only in the Preamble, Part-III, Part-IV, but also Part-IXA of the Constitution. To our mind, there is no doubt about the same. Upholding the Constitution is the Rule of Law. This to our mind is constitutionalism.

¶480

What is ‘test of severability’ also stands explained by the Constitution Bench of the Hon’ble Supreme Court in Kihoto Hollohan vs. Zachillhu & others, 1992 Supp (2) SCC 651 in the following terms:

¶481

“76. The test of severability requires the Court to ascertain whether the legislature would at all have enacted the law if the severed part was not the part of the law and whether after severance what survives can stand independently and is workable.” …

¶482

Subsequently, in Suresh Kumar Koushal & another vs. Naz Foundation & others, (2014) 1 SCC 1, the

¶483

…81…

¶484

Hon’ble Supreme Court also observed that the doctrine of severability seeks to ensure that only that portion of the law, which is unconstitutional, is so declared and the remainder saved. This doctrine should be applied, keeping in mind the scheme and purpose of the law and the intention of the legislature and should be avoided where the two portions are inextricably mixed with one another. It further observed that the court can resort to reading down a law in order to save it from being rendered unconstitutional. But while doing so, it cannot change the essence of the law and create a new law which in its opinion is more desirable.

¶485

In Delhi Transport Corporation v. D.t.C. Mazdoor Congress & others, 1991 Supp (1) SCC 600 (fiveJudge Bench), the Apex Court held that “it it true that where there are clear, unambiguous and positive terms of a legislation, the court should be loath to read down. It should proceed with a straightforward method of striking down such legislations”.

¶486

We tried examining as to whether the Amending Act would be saved by adopting the principle of severability. Undoubtedly, to our mind, even that is not possible. Provision in its entirety, needs to be struck

¶487

…82…

¶488

down for it is clearly ultra vires the Constitution and the laws of the land. As such, we hold it to be ultra vires the Constitution.

¶489

Based on the decision rendered by the Apex Court (three-Judge Bench) in Guruvayoor Devaswom Managing Committee and another v. C.K. Rajan and others, (2003) 7 SCC 546, Mr. R.L. Sood, learned Senior Advocate, contends that constitutional validity of a statute cannot be allowed to be challenged by way of a Public Interest Litigation (PIL). We are unable to persuade ourselves to agree with such a proposition, more so, when it is not the dicta laid down therein.

¶490

Next he refers to and relies upon Centre for Public Interest Litigation v. Union of India and others, (2016) 6 SCC 408. We do not find the decision to be of any assistance, for the Court was dealing with the matters of Economic Policy under challenge (Para-24).

¶491

In view of our earlier discussion, reliance on judgments rendered by Gujarat High Court, in Special Civil Application No.3927 of 2001, titled as Pranjivan H. Parmar v. State of Gujarat, decide don 15.10.2003; High Court of Delhi, in W.P.(C) No.6609/2012, titled as Manmeet Kaur v. Union of India and another, decided on

¶492

…83…

¶493

13.12.2012; and Punjab & Haryana High Court in CWP No.4099 of 2004, titled as Resurgence India v. State of Punjab, decided on 19.2.2013, is of no consequence.

¶494

Mr. Vinay Kuthiala, learned Senior Advocate, has referred to and relied upon R.K. Garg v. Union of India, (1981) 4 SCC 675. We do not find the decision to be of any help either. The constitutional validity of the enactment of the Special Bearer Bonds (Immunities and Exemptions) Act, 1981 came to be assailed, inter alia, on the ground, it being against public morality, arbitrary and irrational. The Apex Court in para-8 of the Report itself clarified that laws relating to economic activities should

¶495

be viewed with greater latitude than laws touching civil rights such as freedom of speech, religion etc. Further, the statute in question itself, as was so urged, did not exempt a person seeking benefit under the Act, from any action, be it civil or penal in nature, from other statutes, covering the field of economic offences and taxation laws. The object and the purpose of the Act was to “induce those having black money to convert it into 'white money' by making it available to the State for productive purposes, without granting in return any immunity in respect of such black money”.

¶496

…84…

¶497

Mr. Aman Nandrajog, learned Counsel has also referred to certain other decisions. Reliance on Karnataka Bank Ltd. vs. State of Andhra Pradesh & others, (2008) 2 SCC 254; State of Madhya Pradesh vs. Rakesh Kohli & another, (2012) 6 SCC 312; and Government of Andhra Pradesh & others vs. P. Laxmi Devi (Smt), (2008) 4 SCC 720, only emphasis on the law making power of the legislature and constitutional limitations. We are not concerned with the power of enactment, for that is not an issue before us. Insofar as constitutional limitation is concerned, as we have already observed, is always open to judicial review within the settled parameters of law.

¶498

While contending that in view of the amendment in question, this Court is not required to consider earlier decisions rendered by this Court, learned counsel for the respondents seek reliance on a judgment

¶499

rendered by the Apex Court (two-Judge Bench) in Bakhtawar Trust and others v. M.D. Narayan and others, (2003) 5 SCC 298 (two-Judge Bench).

¶500

We clarify that we have not held the statute to be ultra vires on this count.

¶501

It is public knowledge that during the pendency of the present petition, vide order dated

¶502

…85…

¶503

16.11.2017, passed in OA No.121 of 2014, titled as Yogendra Mohan Sengupta (supra), the National Green Tribunal, has issued certain directions qua the construction activity to be carried out within Shimla Town, under the Planning and the Corporation Acts. Though the said decision is not on record, but we have ourselves gone through the same. We clarify that we have not gone into the issues adjudicated therein, nor expressed any opinion with regard thereto, for before us the issue is limited and that being the constitutional validity of the Amending Act, which the Tribunal has not dealt with at all.

¶504

In view of our aforesaid discussion, we hold

¶505

that:

¶506

(i) Insertion of Section 30-B by the Amending Act is contrary to the object and purpose of the Principal Act, as also ultra vires the Constitution of India, as such we strike it down.

¶507

(ii) Judgment rendered in Consumer Action Group (supra) is clearly distinguishable, having no binding effect on the grounds of assailing the validity of the Amending Act.

¶508

(iii)&(iv) In view of specific finding in Shayra Bano (supra), holding the observations made

¶509

…86…

¶510

in Binoy Viswam (supra) that arbitrariness cannot be a ground for invalidating a legislation, only to be in per incurium, as such, we hold the amendment to be violative of Article 14 of the Constitution, being manifestly arbitrary, irrational, illogical, capricious and unreasonable.

¶511

(v) Much, as we had desired, the amendment being totally ultra vires, cannot be saved by adopting the doctrine of severability.

¶512

As such, we allow these petitions to the extent

¶513

aforesaid. Pending application(s), if any, also stand disposed of.

¶514

( Tarlok Singh Chauhan ), December 22, 2017(sd) Judge.

Abhimanyu Rathor v. State of Hp

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Abhimanyu Rathor v. State of Hp

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