Punjab-Haryana High Court
Sangrur Improvement Trust vs State Of Punjab And Ors. on 1 September, 1997
Equivalent citations: (1998)118PLR97
JUDGMENT N.K. Kapoor, J.
1. This judgment shall dispose of Letters Patent appeals Nos. 2008, 2179, 2180, 2181 of 1989 and CWP No. 2452 of 1990, as question of fact and law involved in these appeals/petition is identical. Reference to the facts of CWP No. 3205 of 1989 (LPA No. 2008 of 1989) is being made.
2. Petitioner sought issuance of a writ in the nature of certiorari seeking quashing of development scheme prepared by the Sangrur Improvement Trust known as 51 acres development scheme outside Nabha Gate, Sangrur. As per averments in the petition, Sangrur Improvement Trust conceived a scheme in terms of the provisions of the Punjab Town Improvement Act (for short "the Act") and so with a view to acquire the land took necessary steps in the nature of notices Under Sections 36/38 of the Act calling upon the persons affected to raise objections, if any. Notice Under Section 36 of the Act was published in the Daily Tribune dated July 3, 1978 calling upon the persons affected to file objections to the scheme, if any. This scheme lapsed for want of sanction. It is once again that the Trust passed resolution on 3.2.1984 purporting to renotify the scheme. This scheme was got published Under Section 36 of the Act in the government gazette published on April 6, 1984 (third publication). The petitioner thus learnt that first and second publications were made in the government gazette on 23.3.1984 and 30.3.1984 respectively. It is the case of the petitioner that he learnt that notices have also been published in the Daily Punjabi Tribune on 7.2.1984, 14.2.1984 and 21.2.1984 respectively as first, second and third publication. Since time for filing objections had already expired, the petitioner could not and did not file objections to the scheme in time. This action of the Improvement Trust was alleged to be mala fide and, in fact, the whole scheme was conceived at the behest of the President of the Municipal Committee, Sangrur. With the aforesaid averments the petitioner challenged the scheme on the grounds (1) it is mala fide as the price stood freezed in view of earlier notification dated 3.7.1978; (ii) action of the Improvement Trust is discriminatory and arbitrary as plot of Sh. Subhash Chand Grover, President of the Municipal Committee, Sangrur, has been excluded; (iii) that reasonable opportunity of hearing has not been afforded to the petitioner. No opportunity has been given for filing objections; and (iv) since the scheme violates the mandatory provisions of Sections 36 and 38 of the Act, the same is liable to be quashed.
3. Sangrur Improvement Trust in its written statement besides controverting the material averments made in the petition, raised the following preliminary objections: (i) that the petitioner is guilty of making gross mis-statement of facts in the writ petition and so the writ petition deserves to be dismissed on this short ground alone. According to the answering respondent (now the appellant), petitioner in para No. 13 of the petition has alleged that "petitioner could not and did not file the objections against the scheme", this averment is untrue. Petitioner filed objections which were considered and subsequently rejected. (ii) The present petition suffers from serious laches and delay on the part of the petitioner as scheme was published in the Punjabi Tribune on 7.2.1984 and even notification was issued in the Punjab Government Gazette on 15.6.1985, the petition has been filed in the year 1987. Not only this, even Land Acquisition Collector has announced the award on 11.6.1987.
4. Learned Single Judge vide impugned judgment dated September 28, 1989 found substance in the contention of the petitioner and so held the scheme to be illegal.
5. Challenging the judgment rendered by the learned Single Judge, Learned counsel for the appellant at the outset submitted that the Division Bench Judgment in case titled as The Phagwara Improvement Trust v. The State of Punjab and Ors., the basis of the decision of the learned Single Judge, having been now reversed by the apex court in case reported as The Phagwara Improvement Trust v. The State of Punjab and Ors., (1991-1)99 P.L.R. 458, the appeal merit acceptance. According to the learned counsel decision to acquire the land was taken by the Improvement Trust for the first time in the year 1978. Due publication was given in this regard as envisaged by Section 36 of the Act, pursuant to which petitioner and like him raised objections. This scheme could not be executed for want of sanction of the government. So once again it was resolved by the Trust to revive the scheme. Vide resolution No. 60 dated 3.2.1984, old development scheme of 51 acres of land outside the Nabha Gate prepared by the Trust Under Section 24 read with Section 25 and 28(2) of the Act was considered for renotification. 'A part of the Area back side of the Mandir Mata Chintpurni and Anr. 50 yards space on the western side was excluded. The other boundaries of the scheme were retained. It is thereafter that necessary steps in terms of Sections 36, 37 and 38 of the Act were taken by the Improvement Trust. Notification Under Section 36 of the Act was first published in the Punjabi Tribune dated 7.2.1984 and thereafter on 14.2.1984 and 21.2.1984. Govt. Gazette notification was published on 23.3.1984, 30.3.1984 and 6.4.1984 calling upon the land-owners to file objections within 30 days of the first publication of the notice. Learned Single Judge while construing the publication of these notices in the Tribune and the government gazette came to the conclusion that there has been violation of the mandatory provisions of the Act as notifications were published in the newspaper prior to its notification in the government gazette. To hold so, reliance was placed upon Division Bench judgment of this Court in case reported as the Phagwara Improvement Trust v. The State of Punjab and Ors., 1985 P.L.J. 254. Whether such a defect could be ignored or rectified in view of Section 101(1)(d) of the Act, learned Single Judge relied upon another Full Bench decision in case reported as Prof. Jodh Singh etc. v. Jullundur Improvement Trust etc., 1984 P.L.J. 413, to hold that illegality noticed cannot be cured. According to learned counsel for the appellant, apex Court in Phagwara Improvement Trust's case (supra) has considered this aspect of the matter as well and has come to the conclusion that reference to the case of Prof. Jodh Singh and others was misplaced and otherwise too as the parties had notice of the publication of the scheme in a newspaper as well as in the government gazette, pursuant to which even objections had been filed, no prejudice had been caused to the party. In addition to the aforesaid submissions, learned counsel argued that since the petitioner had raised no objection with regard to the framing of the scheme and his only objection was with regard to non-consideration of his objections in terms of Section 38 of the Act, scheme could not be ordered to be quashed. At best, authorities could be directed to examine his objections and thereafter decide the same. However, in the same breath, counsel stated that as per facts of the present case petitioner's objections were considered and rejected, thus giving him no cause to assail the same by preferring writ petition and that too after the expiry of a long period when even award by the Land Acquisition Collector has already been made.
6. Learned senior counsel representing the contesting respondent, on the other hand, argued that the appeal being devoid of merit deserves to be dismissed. According to the counsel, learned Single Judge on considering the matter has come to the conclusion that there has been non compliance of mandatory provisions of the Act and so quashed the scheme. According to the counsel, petitioner had valuable right in the property and so had a legitimate right to raise all conceivable objections with regard to the scheme as well as the claim for exclusion of his land. Acquisition proceedings are of confiscatory nature and so has to be construed strictly in compliance with the provisions of the Act. Section 36 of the Act deals with preparation, publication and transmission of notice as to improvement scheme. A notice containing the scheme as framed, the boundaries of the locality comprised in the scheme; and the place where this scheme including a statement of the land proposed to be acquired and a general map of the locality stating as there the same can be inspected, is to be mentioned in the notice. This notice is to be published weekly for three consecutive weeks in the official gazette and in a newspaper or newspapers with a clear statement as to when these objections will be received. According to the counsel, there has been non-compliance of Section 36(1), (2)(a) of the Act. This being the mandatory provisions, non-compliance of which vitiates the whole scheme. Similarly, Under Section 38 of the Act, after publication of notice in terms of Section 36, a notice is to be served upon every person whom the Trust has reason to believe to be owner of any immovable property which is proposed to be acquired for executing the scheme. Even occupier of the land is to be apprised of the scheme. Owner as well as occupier is to be given two months time to file objections from the date of service of notice. These provisions are almost akin to Sections 4, 5-A and 6 of the Land Acquisition Act, 1894. Under the Land Acquisition Act, non-compliance of the mandate of the aforesaid provisions invalidate the acquisition proceedings. Learned counsel argued that decision in Phagwara Improvement Trust's case (supra) is inapplicable to the facts of the present case. The apex Court has not considered the earlier decision in case reported as Khub Chand and Ors. v. State of Rajasthan and Ors., AIR 1967 S.C. 1074; Narinderjit Singh v. The State of U.P. and Ors., AIR 1973 S.C. 552; The Collector (Distt. Magistrate) Allahabad and Anr. v. Raja Ram Jaiswal, AIR 1985 S.C. 1622; and State of Uttar Pradesh v. Radhey Shyam Nigam and Ors., 1989(1) Revenue Law Reporter, 241, wherein it has been held that the provisions of the Land Acquisition Act which are mandatory in character are to be strictly construed. This way decision in Phagwara Improvement Trust's case (supra) runs counter to the earlier decisions reference to which has been made above. With this background, the counsel submitted that the earlier decisions of the apex Court being in conformity with the statutory provisions need to be preferred.
7. Learned Counsel further argued that the finding of the learned Single Judge that petitioner's objections Under Section 38 of the Act were disposed of deserves to be reversed on the short ground that no opportunity had been afforded to the aggrieved persons to place their viewpoint. Lastly, the counsel argued that the scheme is in-executable for the reason that a number of persons have raised construction since the scheme was quashed by this Court. Even Deputy Commissioner, Sangrur, had advised the Punjab Government to abandon the scheme. Not only this, Improvement Trust, Sangrur vide resolution No. 75 dated 12.12.1991 finally resolved that in case the government of Punjab permits the Trust to withdraw the scheme, the same shall be withdrawn. Moreover, the amount retained earlier for paying compensation to the claimants has now been utilised for a different purpose. Such an action by itself suggests that the Trust no more desires to execute the scheme.
8. We have heard learned counsel for the parties as well as perused the impugned judgment and some of the documents annexed with the petition/written statement reference to which has been made by the respective counsel. Facts have been notice above i.e. conceiving of a scheme by the Improvement Trust. This scheme was conceived in the year 1978. Necessary publication was made in the Tribune as well as in the Government Gazette. This scheme lapsed as the government of Punjab did not accord its sanction. It so happened that -Improvement Trust within the State of Punjab were dissolved by the State Government. So for this lapse, Improvement Trust cannot be faulted. As soon as Improvement Trust came into being, it decided to renotify the scheme with some minor changes. The scheme was thus published in the newspapers on three different dates as per Section 36 of the Act calling upon the affected parties to come present and file objections if so desire. Thereafter notices were also issued to owners as well as occupiers as per case of the appellant. Parties differ as to whether such notices were issued to owners/occupiers. Similarly, parties differ whether these persons were permitted to file objections to the scheme or have right to raise objections with regard to acquisition of their land. Learned Single Judge has come to the conclusion that as per material produced by the Trust "objections Under Section 36 and 38 were received and disposed of after serving the petitioners". So the learned Single Judge thought that no further comments were required in this regard. Counsel for the respondents seeks redetermination of this objection of the petitioner, now respondent. We find no cogent reason to reconsider the same for the reasons first that learned Single Judge on perusing the relevant material produced before him has found this objection of the petitioner to be devoid of merit; and secondly, this being a purely finding of fact cannot be agitated in Letters Patent Appeal. As regards the other objection of the learned counsel for the respondent that at one stage the Improvement Trust on its own decided to drop the scheme and so passed a resolution recommending the same to the government for its acceptance with the change in situation at the spot, scheme has become in-executable. With a view to find out as to the exact stand of the Improvement Trust, Counsel for the appellant was directed to verify and state on affidavit. One Mr. Harjinder Singh, Executive Officer, Sangrur Improvement Trust, has sworn an affidavit stating therein that no doubt resolution No.75 dated 12.12.1991 was passed by the Sangrur Improvement Trust for dropping for 51 acres Scheme and was also sent for its approval to the State Government vide letter dated 7.7.1992. Vide the aforesaid letter, State Government directed the Sangrur Improvement Trust to pursue the appeal. Executive Officer has thus stated that 51 acres scheme is very much alive. The contesting respondent too has placed on record a copy of proceedings of the meeting held on 5.8.1997 regarding 51 acres scheme of the Improvement Trust, Sangrur, whereby recommendation has been made for dropping the scheme in public interest. Conflicting stand has been taken by the parties. All the same, it can be said that no final decision has been taken by the State Government. Thus, as per facts on record, we find no substance in the contention of learned counsel for the respondent that this scheme stand abandoned.
9. Since sole reliance has been placed by the appellant upon the decision of the apex Court in Phagwara Improvement Trust's case (supra) and respondents' counsel has tried to distinguish the same, it would be appropriate to make a brief reference to the precise point raised, as indicated by the Court, in the aforesaid case. Phagwara Improvement trust prepared a development scheme. Land of respondents fall within this area. Notices in terms of Section 36 were published in a newspaper on 9th, 15th and 23rd of April, 1976, whereas these notices were published in the government gazette on 7th, 14th and 21st May, 1976, inviting objections from the aggrieved party by May 5, 1976. Similarly, notices were served upon owners as well as occupiers in terms of Section 38 of the Act so that, if need be, they may file objections. Objection was taken that as the date for filing objections was on or before May 5, 1976, aggrieved persons have been deprived of their right to file objections within the stipulated time. Writ petition was allowed and the Letters Patent Appeal too was dismissed by the Court. The Apex Court while considering this aspect held as under :-
"The Legislative intent of provision of Section 36 read with Section 38 of the said Act is to afford reasonable opportunity to the owners and occupiers affected by the proposed scheme to file objections not only against the scheme but also against the acquisition of their lands falling within the scheme and to achieve this purpose not only notifications in the government gazette and newspapers are to be published but also individual notices on each of the person affected are to be served with details of the plot of land falling within the scheme and proposed to be acquired with a view to giving the adequate opportunity to file objections both against the scheme as well as against the proposed acquisition of their lands. it is, therefore, incomprehensible to contend that non-observance of provisions of Section 36 of the said Act by not publishing the notification in the government gazette before the expiry of the date for filing of objections renders the publication of the entire development scheme illegal and bad. The above contention, in our considered opinion, is not at all sustainable on the simple ground that the respondent No.2 and others were duly served with the notices Under Section 38 and they pursuant to that notice duly filed their objections against the acquisition as well as the scheme. The decision of the Full Bench reported in Prof. Jodh Singh v. Jullundur Improvement Trust, Jullundur and Ors. (supra) is not applicable to this case in as much as in that case the objections filed Under Section 38 of the said Act having been misplaced were not at all considered and thereafter the government issue a notification Under Section 42 of the said Act giving sanction to the scheme itself. In that view of the matter, the said decision has no application to the instant case."
The Court further held that non-observance of the provisions by not publishing the notification in the government gazette before the expiry of the date for filing of objections does not render the publication of the entire development scheme to be illegal and bad.
10. Learned counsel for the respondent primarily has sought support from the provisions contained in the Land Acquisition Act and the judicial pronouncements made by the apex Court canvassing that since provisions contained in Sections 4, 5-A and 6 of the Land Acquisition Act are similar to the Sections 36, 38 and 40 of the Punjab Town Improvement Act; decisions rendered by the apex Court mandate that non-compliance of the mandatory provisions vitiates the acquisition proceedings. According to the learned counsel for the respondent, the apex Court has consistently been holding that as and when the Legislature has made use of the term 'shall', the same is mandatory in character and its non-observance by the authorities made the whole proceedings null and void. To this broad proposition, obviously there cannot be any controversy. All the same, various judicial pronouncements of the apex Court though have to be kept in view, their applicability to the facts of a particular case have also to be kept in view.
11. In Khub Chand and other's case (supra), the Court was considering the rules of Rajasthan Land Acquisition Act wherein too in Section 4 expression used is 'shall'. Similarly, Section 5(2) envisages service upon the aggrieved party giving the person an opportunity of hearing. It is in this context that the Court held that the provisions of a statute conferring power on the government to compulsorily acquire land is to be strictly construed. The court further held that term 'shall' in its ordinary significance is mandatory "and the court shall ordinarily give that interpretation to that term unless such an interpretation leads to some absurd or inconvenient consequence or be at variance with the intent of the legislature, to be collected from other parts of the Act. The construction of the said expression depends on the provisions of a particular Act, the setting in which the expression appears, the object for which the direction is given, the consequence that would flow from the infringement of the direction and such other consideration." The Court further held; that "the fact that the owners may have notice of the particulars of the intended acquisition Under Section 5(2) does not serve the purpose of S.4, for such a notice shall be given after the appropriate officer of officers enter the land and submit the particulars mentioned in S.4. The objects of the two sections are different; the object of one section is to give intimation to the person whose land is sought to be acquired, of the intention of the officer to enter his land before he does so and that of the other is to enable him to know the particulars of the land which is sought to be acquired." Thus, in case a notification has been issued without complying with the mandatory directions, the same would be void and so the acquisition proceedings taken pursuant thereto would be equally void.
12. Similarly the apex Court in Narinderjit Singh's case (supra) held that in case the Collector fails to cause public notice of the substance of such notification at convenient places in the locality in which the land is situated which is sought to be acquired, whole acquisition proceedings are vitiation. The court further held that compliance of Section 4(1) of the Land Acquisition Act is mandatory even when emergency provision of Section 17(4) have been invoked by the authority. Similarly, in The Collector (Distt. Magistrate) Allahabad and another's case (supra), the court while construing Section 4(1) of the land Acquisition Act (as applied to U.P. and prior to its amendment in 1974) held that "as a notification Under Section 4(1) initiates the proceedings for acquisition of land and uses the expression "shall" the mandate of the legislature becomes clear and, therefore, the infirmities therein cannot be wholly overlooked on the specious plea that the Courts do not interdict at the stage of a mere proposal." According to the court, to comply with the statutory requirement, it has to be stated in the notification of the land which is needed or is likely to be needed for a public purpose and secondly, public notice of the substance of such a notification is to be given at a convenient place in the locality in which the land proposed to be acquired is situated. These conditions are mandatory and so noncompliance will make the scheme void and ab initio.
13. Similar provisions exists in the Punjab Town Improvement Act regarding preparation, publication and transmission of notice of the improvement scheme as per Section 36 of the Act and 38 of the Act envisages notice of supposed acquisition of land and its service upon the 6wner as well as upon the occupier requiring them to file objections, if any, within a stipulated period. Section 40 deals with consideration of objections/representations and hearing of all persons or other representatives before deciding the same. As per Section 40 of the Act, even a scheme cannot be abandoned, but for it prior approval of the State government is essential. Grievance has been made by the contesting respondent alleging non-compliance of mandatory provision of Section 36 and 38 of the Act and even not permitting them a hearing while deciding their objections/representations. As noticed in the earlier part of the judgment, learned Single Judge on perusing the material placed before him came to the conclusion that the respondent's objections/representations which were a few pursuant to the notices Under Section 36 and 38 of the Act were disposed of by the authorities. No material has been brought to the notice to persuade us to reverse this conclusion of the learned Single Judge. Regarding non-compliance of Sections 36 and 38 of the Act, the matter, in fact, stands concluded by the decision of the apex Court in Phagwara Improvement Trust case (supra). In the aforesaid case, the apex Court has considered the provisions of Sections 36, 38, 40 and 101 of the Act. Earlier decisions of this Court have clearly been distinguished/explained. Since the aforesaid decision of the apex Court squarely covers the point in controversy, making reference to the provisions contained in the Land Acquisition Act and the judicial pronouncements of the apex Court would be wholly unnecessary.
14. Respectfully, following the decision of the apex Court in Phagwara Improvement Trust case (supra), we are of the view that the judgment of the learned Single Judge is liable to be reversed. According, we accept the appeals, set aside the impugned judgment of the learned Single Judge. Resultantly, we dismiss the writ petitions filed by the respondents. No order as to costs.