Jasbir Singh, A.C.J.@mdashChandigarh-the City Beautiful was declared as ''Disturbed Area'' vide Notification dated 2.12.1986 (Annexure P-1) and the use of Armed Forces in aid of the Civil power was permitted, it was done so taking note of the disturbed and dangerous situation existing at that time. In the same fashion, vide Notification dated 5.12.1991 (Annexure P-2), exercising powers u/s 3 of the Chandigarh Disturbed Areas Act, 1983 (in short ''the Act''), whole of the Union Territory of Chandigarh was declared as ''Disturbed Area'' and vide another Notification of the even date by exercising powers u/s 20 of Code of Criminal Procedure, 1973, some officers were designated as Executive Magistrates to meet the requirement of the Act. The present petition has been filed averring that at present no such condition is prevailing in the Union Territory, Chandigarh, on the basis of which declaration made by aforesaid notifications declaring Chandigarh as ''Disturbed Area'', ought to be allowed to continue, therefore, a prayer has been made by the petitioner to quash the above mentioned notifications. It is contended by counsel for the petitioner that the above said notifications were issued on account of disturbed condition existing in the State of Punjab at that time which had its percolating effect on the adjoining areas and, thus, Union Territory, Chandigarh was also declared as ''Disturbed Area'' being Capital of the State.
2. Before proceeding further, it is necessary to make a mention here that Mr. Alok Jain, Addl. AG, Punjab, on our asking has informed this Court that so far as the State of Punjab is concerned, vide Notification dated 16.11.1996 whole of the State of Punjab was declared as ''Disturbed Area'' for a period of six months only i.e. from 18.11.1996 to 17.5.1997. Prior to this notification, another specific notification was issued on 9.3.1989 vide which 3 districts of the State of Punjab i.e. Amritsar, Gurdaspur and Ferozepur were declared as ''Disturbed Areas'' and that notification was also withdrawn on 28.7.2008. Thus, it is evident that after July 2008, no part of the State of Punjab is notified as ''Disturbed Area'' either under the Armed Forces (Punjab and Chandigarh) Special Powers Act, 1983 or under the Punjab Disturbed Areas Act, 1983.
3. Notice of motion of this writ petition was issued and thereafter some orders were passed by this Court. On 18.7.2012 following order was passed:-
Vide notification dated 5.12.1991, the Union Territory of Chandigarh was declared as ''disturbed area'' as per the provisions of Section 3 of the Chandigarh Disturbed Areas Act, 1983. It is stated by the petitioner that now atmosphere in Chandigarh is peaceful and without any justification that notification is being allowed to continue whereas the said notification should have been withdrawn.
Counsel for the respondents seeks time to file reply.
Adjourned to 27.8.2012.
Authorities concerned are directed to look into the notification mentioned above and pass appropriate order in the meantime.
4. It was noticed that the above said notifications are in existence and have been allowed to continue without any justification. Chandigarh is a peaceful city and there is no reason for allowing the notifications issued under the Act to continue. Considering these facts, the Authorities were directed to look into the notifications and pass appropriate order in the meantime. However, during the course of hearing on 27.8.2012, this Court was told that the file is pending before the competent authority to decide as to whether Administration would contest this writ petition or not. On the basis of statement made by Mr. Kaushal on 27.8.2012 following order was passed by this Court:-
Tentatively, we are satisfied that as on today Union Territory of Chandigarh is not a disturbed area as it was declared in the year 1983.
Mr. Mr. Sanjay Kaushal, Senior Standing Counsel for Union Territory of Chandigarh-respondent No. 1, states that the file is pending before the Administrator for passing of necessary orders as to whether the U.T. Chandigarh would contest this writ petition or not.
Let the final decision be taken by the next date of hearing.
Adjourned to 17.9.2012.
5. Pursuant to the order passed on 27.8.2012, a reply was filed on 17.9.2012, raising objection about the maintainability of this writ petition on the ground that the petition has been filed only to get publicity and nothing else. It is further stated that the petition is not espousing any public cause rather due to existence of the impugned notifications the public is feeling secured, therefore, it is in public interest to allow the notifications to continue in Union Territory, Chandigarh. To make out a case for continuation of the area to remain declared as ''Disturbed Area'', it is averred that Chandigarh has a unique distinction being Capital of States of Punjab and Haryana and is housing the constitutional, political and Government functionaries of both the States. It is further averred that the continuance of these notifications is necessary because Chandigarh Administration is providing security to those who fought against terrorism and are also residing in Chandigarh and to them security under different categories is to be provided. The prisoners convicted of committing murder of former Chief Minister, Punjab, are also lodged in Model Jail Burail (Chandigarh). To justify all that has been stated above, it is averred in the affidavit:-
that though there may not have been any major instances of disturbance of public order in the recent years, it cannot be guaranteed that such instances would not occur in the future. This is the reason that the Parliament in its wisdom has left it to the satisfaction of the Administrator of U.T., to assess the situation and to take a decision on the continuation of these notifications. With respect, it is within the executive domain of the administration to take a decision in this regard and any interference by the courts may be warranted only if it is shown that the decision making powers have been exercised in an arbitrary manner. The petitioners has miserably failed to show anything in this petition, so as to warrant interference by this Hon''ble Court. The petition, thus, deserves to be dismissed on this ground also.
6. We are of the opinion that the stand taken is not justified. Before proceeding further, it is necessary to consider the relevant provisions of the Act. Section 2 (b) provides that "disturbed area" means an area which is for the time being declared by notification u/s 3 to be a disturbed area. Section 3 provides that the Administrator may by notification declare whole or part of the Union Territory, Chandigarh as disturbed area. Provisions of Sections 4 and 5 of the Act reads thus:-
Section 4 - Power to fire upon persons contravening certain orders - Any Magistrate or Police Officer not below the rank of Sub-Inspector or Havildar in case of the Armed Branch of the Police may, if he is of opinion that it is necessary so to do for the maintenance of public order, after giving such due warning as he may consider necessary, fire upon, or otherwise use force, even to the causing of death, against any person who is acting in contravention of any law or order for the time being in force in the disturbed area, prohibiting the assembly of five or more persons or the carrying of weapons or of things capable of being used as weapons or of fire arms, ammunition of explosive substances.
Section 5 - Powers to destroy arms, dump fortified positions, etc. - Any Magistrate or Police Officer not below the rank of a Sub-Inspector may, if he is of opinion that it is necessary so to do, destroy any arms dump, prepared or fortified position or shelter from which armed attacks are made or are likely to be made or are attempted to be made or any structure used as training camp for armed volunteers or utilised as a hide-out by armed gangs or absconders wanted for any offence.
7. As per the above provisions, it is open to any Magistrate or Police Officer, not below the rank of Sub Inspector or Hawaldar, in case of Armed Branch of Police, to form an opinion if it is necessary so to do for the maintenance of public order and after giving due warning, fire upon or otherwise use force, even to the extent of causing death, against any person who is acting in contravention of any law or order enforced in the disturbed area. Assembly of 5 persons can be prohibited and carrying of fire arms/weapons or things capable of being used as weapons or fire arms can be restricted. Section 5 lays down that the above officers can also destroy any arms dump, preparation or fortified position or shelter or structure from which arms attack is made or likely to be made or attempted to be made. Reading of the above provisions clearly establishes that very vast and unfettered powers have been bestowed upon the officers even upto the level of a Hawaldar, to act against the life and liberty of the citizens.
8. In the reply filed, it is no where stated that any of the conditions, which are contemplated as per the provisions of the Act, especially Sections 3, 4 and 5, exist in Union Territory, Chandigarh. Rather, when confronted at the time of arguments, it is stated that no such disturbance has taken place in the Union Territory of Chandigarh during the last more than one decade.
9. On our specific asking, counsel appearing for Union Territory, Chandigarh, failed to give reply as to when the powers were invoked under the said Act. It is only stated that even if no disturbance has occurred, the authorities cannot lower the cover of security because of repeated threat perceptions as per the intelligence reports received. However, neither such fact has been placed on record nor any specific instance has been brought to our notice. It is common knowledge that in the 1980s and 1990s situation in the State of Punjab was very disturbed on account of terrorists'' activities which resulted into giving powers to the Armed Forces to assist the Civil administration. Union Territory, Chandigarh also followed the same. The State of Punjab which was the epicenter of terrorism has already withdrawn all the notifications issued in that regard in the year 2008, but the Union Territory, Chandigarh Administration is still continuing to enforce notifications issued in that respect. There may not be any financial burden on the exchequer (we doubt it), as has been stated by the counsel appearing for the respondents, but a tag of'' Disturbed Area" is itself a blot on the face of the ''City Beautiful'' which is one of the best Planned Cities in the country. The direct impact on the exchequer may '' be limited but indirectly, it is bound to have an effect when tourists from other parts of the country or from the foreign countries may be hesitate to come to Chandigarh, if it comes to their knowledge that the area has been declared as ''Disturbed Area''. The multinational companies and the industrialists from other parts of the country may not prefer to invest in Chandigarh. Now the situation has improved. Important national personalities including President, Prime Minister, Chief Justice of India and others had been and are visiting Chandigarh frequently. All went well at that time. Important sports and cultural events are being organized in Chandigarh without any problem. No reason has been enunciated in the reply filed or otherwise shown to the Court to justify the desirability and necessity to keep enforced the impugned notifications with a tag of ''Disturbed Area'' for Chandigarh.
10. Merely for providing security to some individuals, whose names are not disclosed, who are residing in Union Territory, Chandigarh, powers have been given to the Armed Forces to take away life of anybody simply by forming an opinion that the said person was acting against any law applicable in Union Territory, Chandigarh. In the recent past, even worse conditions prevailed in the various capitals, cities of other States and in other parts of the country, but nothing has been brought to our notice that those areas have been declared as Disturbed Areas. The continuance of the impugned notifications declaring Chandigarh as ''Disturbed Area'' is not justified at all. In view of above, this petition is allowed and the notifications under challenge i.e. Annexure P-1 and P-2 dated 2.12.1986, 5.12.1991 respectively, are hereby quashed.
