1980 Supreme(P&H) 65

PUNJAB & HARYANA HIGH COURT
J.M.Tandon, J.
Sada Singh
Versus
State Of Punjab
Civil Writ Petition No. 415 of 1979,
Decided On : FEBRUARY 18, 1980

Section 12(2) of the Punjab New Capital (Periphery) Control Act, 1952, is valid and can be applied retrospectively to demolish unauthorized constructions made in violation of Section 5 of the Act.

Headnote:

PUNJAB NEW CAPITAL (PERIPHERY) CONTROL ACT, 1952 - SECTION 5, 6(1), 6(6), 12(2), 15(A) - CONSTRUCTION WITHOUT PERMISSION - DEMOLITION - VALIDITY OF SECTION 12(2) - RETROSPECTIVE EFFECT - PRESUMED PERMISSION - RESTRICTIONS - ABADI AREA - ACQUITTAL UNDER SECTION 12(1) - REORGANISATION OF PUNJAB - ADAPTATION OF ACT - SPEAKING ORDER - LEGISLATIVE COMPETENCE - MALA FIDE ACTION - VAGUENESS OF ACT - INTERPRETATION AND APPLICATION.

Fact of the Case:

Petitioners constructed buildings in the controlled area under the Punjab New Capital (Periphery) Control Act, 1952, without obtaining permission from the Deputy Commissioner. Notices were issued to them under Section 12(2) of the Act to show cause why the unauthorized constructions should not be demolished. The petitioners challenged this order, arguing that Section 12(2) was ultra vires and that they had obtained permission under Section 6(6) of the Act.

Finding of the Court:

The court held that Section 12(2) of the Act was valid and could be applied retrospectively. The court also held that the petitioners could not rely on the presumed permission under Section 6(6) because their constructions violated the restrictions imposed under Section 4(1) of the Act. The court further held that the petitioners' constructions were not in the abadi area and therefore did not fall under the exemption provided in Section 15(a) of the Act. The court also rejected the petitioners' arguments that the Act ceased to be a good law after the reorganization of Punjab, that the adaptation of the Act under Section 89 of the Punjab Reorganization Act abrogated the old Act, that the Deputy Commissioner did not pass a speaking order under Section 12(2), that the State of Punjab could not legislate with respect to the periphery of Chandigarh, and that the action under Section 12(2) was mala fide.

Issues: 1. Whether Section 12(2) of the Punjab New Capital (Periphery) Control Act, 1952, is valid and can be applied retrospectively? 2. Whether the petitioners can rely on the presumed permission under Section 6(6) of the Act? 3. Whether the petitioners' constructions are in the abadi area and therefore fall under the exemption provided in Section 15(a) of the Act? 4. Whether the Act ceased to be a good law after the reorganization of Punjab? 5. Whether the adaptation of the Act under Section 89 of the Punjab Reorganization Act abrogated the old Act? 6. Whether the Deputy Commissioner passed a speaking order under Section 12(2)? 7. Whether the State of Punjab can legislate with respect to the periphery of Chandigarh? 8. Whether the action under Section 12(2) is mala fide?

Ratio Decidendi: 1. Section 12(2) of the Act is valid and can be applied retrospectively because it does not envisage conviction of an offence resulting in the award of punishment, but rather provides for an action for undoing the illegality committed by those who raised construction violative of Section 5 and without permission under Section 6. 2. The petitioners cannot rely on the presumed permission under Section 6(6) because their constructions violated the restrictions imposed under Section 4(1) of the Act. 3. The petitioners' constructions are not in the abadi area and therefore do not fall under the exemption provided in Section 15(a) of the Act. 4. The Act did not cease to be a good law after the reorganization of Punjab because it was given continuity after November 1, 1966, by Section 88 of the Reorganization Act. 5. The adaptation of the Act under Section 89 did not abrogate the old Act because the Act had been given continuity after November 1, 1966, by Section 88 of the Reorganization Act. 6. The Deputy Commissioner passed a speaking order under Section 12(2) because the intimation of the order passed by the Deputy Commissioner was sent to the petitioner, and there is no justification to doubt the veracity of the detailed order placed on the file. 7. The State of Punjab can legislate with respect to the periphery of Chandigarh because the Act has application in relation to the land which falls within the territorial limits of Punjab and not to the land which falls outside it. 8. The action under Section 12(2) is not mala fide because the petitioners have made unauthorized constructions in violation of the provisions of Section 5 of the Act.

Final Decision: All the writs were dismissed.