Punjab-Haryana High Court
Jetinder Pal Singh And Others vs The State Of Haryana And Others on 17 March, 1993
Equivalent citations: AIR1993P&H293, (1993)104PLR425, AIR 1993 PUNJAB AND HARYANA 293, 1993 REVLR 2 276, 1993 PUNJ LJ 288, (1993) 2 LANDLR 259, (1993) 2 RENTLR 19, (1993) 2 RRR 300, (1993) 2 PUN LR 425
ORDER
1. Civil Writ Petitions Nos. 445/1983 (Jatinder Pal Singh v. State of Haryana; 3127/1983 (Mbhinder Kumar v. State of Haryana; and 27/1983 (Vinod Kumar Jain v. State of Haryana) are being disposed of by a common judgment as common question of law and fact is involved therein.
2. The only question surviving for consideration, as directed by the Apex Court vide its judgment 6f March 5, 1987 relates to the constitutional validity of S. 44-A of the Punjab Town Improvement Act, 1922, as enforced in Haryana (hereinafter referred to as "the Act") and the notifications issued from time to lime under the proviso to the said section granting extension of the period for the completion of the scheme.
3. The relevant facts for appreciation of the question involved briefly are that vide notifications Nos.:
(i) 3I6I-3CI-76/10219 dated March 25, 1976;
(ii)9133-3Cl-76/29579 dated September 2, 1976 and
(iii) 11047-3CI-76/37I04 dated November 5, 1976, the Governor of Haryana in exercise of power under Sec. 41(1) of the Act, sanctioned Development Schemes Nos. 34, 38 and 39 respectively, prepared by Karnal Improve-ment Trust, Karnal under S. 24 read with sub-sec. (2) of S. 28 of the Act. The Improvement Trusi having not been able to execute the schemes within the prescribed period applied for the extention of the period for the execution of the said schemes, the Governor of Haryana extended the said period vide different notifications.
4. The persons aggrieved by the action of the State Government extending the period for execution of the schemes challenged the same through Writ Petitions Nos. 445/1983 (Jatinder Pal Singh v. State of Haryana); 3127, 1983 (Mohinder Kumar v. State of Haryana); and 27/1983 (Vinod kumar Jain V. State of Haryana). Writ Petitions Nos. 27/1983 and 445/1983 came up for motion hearing before a Division Bench of this Court and were disposed of by a common judgment dated 10-3-1983 in the following terms :--
".....For all these years, the Improvement Trust did not take any meaningful steps to complete the acquisition proceedings. It is the petitioners' case that the Improvement Trust, in fact, did not want to implement any scheme and the acquisition proceedings have been carried out only with a view to peg down the prices of the land in dispute in the year 1973. The applications for extension of time for the execution of the schemes filed under S. 44A of the Act were also linked in the same chain and have to be viewed in this perspective. The petitioners have, therefore, challenged these acquisition proceedings.
It is not necessary to dilate upon the legal position in detail because the matter stands concluded by a decision of a Division Bench of this Court in C. W. P. No. 2972/1982 (Ranbir Kumar Arora v. State of Haryana) decided on 9th December, 1982 (AIR 1983 P&H 431). Their Lordships did not accept the explanation of the State for delay in executing the schemes and relying upon the ratio of a full Bench judgment in Radhey Sham Gupta v. Stale of Haryana, 1982(84) Pun LR 743: (AIR 1982 P&H 519) held that the two impugned publications suffered from the vice of colourable exercise of power and, thus, deserved to be quashed. The present case is directly covered by the decision in Ranbir Kumar Arora's case (supra) and the decision of that case applies with equal force to the facts of the connected case C.W.P. No. 445/ 1983. Respectfully following the dicta in that case we allow the two writ petitions and quash the impugned acquisition proceedings stamping from the notifications under Ss. 36 and 42 of the Act. The respondents shall pay costs to the petitioners which are assessed at Rs. 200/ -in each case."
C.W.P. No. 3127/1983 (Mohinder Kumar v. State of Haryana), was also disposed of by a Division Bench of this Court in motion hearing vide judgment of August 22, 1983 which reads as under:--
"Counsel for the parties are agreed that this case is covered by the decision of this Court in Civil Writ Petition No. 2972 of 1982, decided, on December 9, 1982. Consequently, the writ petition is allowed and the impugned acquisition proceedings emanating from the notifications published under Ss. 36 and 42 of the Punjab Town Improvement Act, are hereby quashed qua the petitioners."
The Improvement Trust, Karnal, aggrieved by the abovesaid decisions of this Court filed appeals before the Apex Court. The same were disposed of by an order dated March 5, 1987, with the following directions:--
"We have heard the learned counsel for the parties in alt these appeals. We do not agree with the decision of the High Court that the schemes involved in these cases were liable to be set aside on the basis of the reasons given by the Full Bench of the High Court of Punjab and Haryana in Radhey Sham Gupta v. State of Haryana, AIR 1982 P&H 519 :. (1982) 84 Pun LR 743. We, therefore, set aside the judgments against which these appeals are filed and remand the cases to the High Court to consider only the question relating to the constitutional validity of S. 44-A of the Punjab Town Improvement Act, 1922, as in force in Haryana and the notifications issued from time to time under the proviso to the said section granting extension of the period for the completion of the schemes in question. No other question shall be raised before the High Court by the writ petitioners. It is open to the writ petitioners to file, if they are so advised, additional pleadings confined to the above question. It is also open to the respondents to file additional counter-affidavits in the High Court. The High Court shall dispose of the writ petitions within six months. Status quo as, on today regarding possession shall be maintained until the High Court disposes of the writ petitions.
The appeals are disposed of accordingly."
Additional pleadings were filed by th'e parties as directed by the Apex Court.
4A. The vires of S. 44 of the Act has been challenged on the grounds that it gives; unguided and unfettered power to the State Government to extend the time for execution of the scheme for an indefinite period. The' legality of the notifications was challenged, on the ground that these were issued without application of mind and that there was no material before the State Government on the basis whereof the extension of time for the execution of the schemes could be justified.
5. In order to answer the question relating to the constitutional validity of S.44A of the Act, as enforced in Haryana, it is expedient to examine the schemes of the Act.
6. The Act is comprised of X Chapters. Chapter IV pertains to the schemes under the Act. It is comprised of Ss. 22 to 44-A. Section 22 relates to the General Improvement Scheme or rebuilding scheme. In Sec-lion 23 street schemes and deferred, street schemes have been provided. Section 24 deals with development and expansion schemes, whereas Sections 25 and 26 take care of housing accommodation scheme and rehousing scheme respectively. In S.27 provision for re-housing of displaced resident house-owners has been made. Section 28 talks of combination of schemes and matters which may be provided for in the scheme. Effect of prescribing a street alignment on powers of Municipal Committees has been dealt with under S.29. Section 30 takes care of the powers of trust to set back or forward buildings adjacent to the street alignment. Prohibition of building beyond a street alignment has been laid down in S. 31. Section 32 deals with the acquisition of property affected by deferred street scheme. Section 33 provides that a scheme under this Act may be framed upon an official representation by the Municipal Committee or otherwise. Official representation is considered under Section 34 of the Act. Matters to be considered when framing improvement schemes have been provided for under S. 35. Section 36 talks of preparation, publication and transmission of notice, as to improvement schemes, and supply of documents to applicants. Section 37 of the Act provides that the President of any Municipal Committee and the Medical Officer of Health, to whom a copy of notice has been sent under clause (b) of sub-sec. (2) of S. 36 shall, within a period of sixty days from the receipt of the said copy, forward to the trust any representation which the Municipal Committee or the said medical officer of health may deem fit to make with regard to the scheme. Provision for service of notice of proposed acquisition of land has been made under S. 38. Section 39 of the Act provides that the Municipal Committee shall furnish the Chairman at his request and on payment of such fees as may be prescribed by rule made Under S. 73 with a copy of such information relating to the locality regarding which a notice has been published under S. 36 as is available in the municipal records. Section 40 makes provision regarding abandonment of scheme, or application to State Government to sanction it. Section 41 empowers the State Government to sanction the scheme with and without modification or refuse to sanction the scheme or return it to the trust for reconsideration. In S.42 it has been provided that the State Government shall notify the sanction of every scheme under this Act, and the trust shall forthwith proceed to execute such scheme, provided that it is not a deferred street scheme, development scheme, or expansion scheme and provided further that the requirements of S.27 had been fulfilled. Sub-section(2) of S.42 provides that notification under sub-sec. (I) in respect of any scheme shall be conclusive evidence that the scheme has been duly framed and sanctioned. Under S. 43 of the Act, a scheme can be altered by the Trust at any time between the time of its sanction by the Government and its execution. The State Government may drop an earlier sanctioned scheme under S. 43(A). Section 44 provides, that any number of localities in respect of which the trust has framed or has proposed to frame schemes under this Act may, at any time, be included in one combined scheme. A time limit for execution of schemes has been provided under S. 44A. If a scheme is not executed within a time period of five years from the date of notification, it loses its legal value. The proviso to the said section carves out an exception to S. 44 enabling the State Government to extend the period provided under S. 44A in its discretion if it is satisfied that it was beyond the control of the trust to execute the sanctioned scheme within the period prescribed.
7. From the above scheme of the Act, it is clear that a complete and comprehensive provision has been made in the statute for framing schemes by the trust. Before a scheme is submitted to the State Government for sanction all objections thereto have to be heard by the trust. The matter is examined de novo by the Slate Government when the scheme is submitted to it. If it is found that it v, as not in the public interest, to sanction the scheme, the Slate Government may reject it or may send it to the trust for reconsideration. The scheme attains finality after its sanction. The issuance of notification under S. 42(2) of the Act is a conclusive evidence that the scheme has been duly framed and sanctioned. The non-compliance with any procedural provisions is cured once a scheme bus been notified. The land owners or persons affected can seek an opportunity of being heard by the trust. The trust has to bear their objections and dispose them of. Then the scheme along with appendices, as mentioned in S. 40(2) of the Act, is submitted to the State Government. After the scheme has been duly sanctioned and notified it is to be executed within the period prescribed. If in event, the trust could not execute the scheme within the prescribed period, the State Government can extend the period for its execution on being satisfied that it was beyond the control of the trust to execute the scheme within the period prescribed under S. 44 of the Act or within the extended period. The matter being purely between the State Government and the Trust a landowner or the person affected has no right to be afforded an opportunity of being heard before the State Government extends the period within which the scheme has to be executed by the trust.
8. The case of the petitioners is that unguided and unfattered power has been granted to the State Government to extend the period of execution of the scheme. Barium Chemicals Ltd. v. Company Law Board, AIR 1967 SC 295, followed in Rohtas Industries Ltd. v. S. D. Agarwal, AIR 1969 SC 707, carl be cited in support of the abovesaid contention. Although, there can possibly be no quarrel with the preposition of law laid down therein, yet the ratio of these judgments has no application to the facts of the cases in hand.
9. The constitutional validity of Section 237 of the Companies Act was challenged in Barium Chemicals Ltd.'s case (supra). Under Section 237(b) of the Companies Act, the Central Government was authorised to appoint one or more competent persons as Inspectors for investigating the affairs of the company. Section 237(a)(ii) of the Companies Act authorises the Court to declare the affairs of the company ought to be investigated by an Inspector appointed by the Central Government. The Apex Court found that Section 237 of the Companies Act was valid and that Company Law Board had to form an opinion whether to order investigation of a company by an Inspector and this opinion to be formed is subjective and has to be formed on the grounds disclosed. The judgment in Barium Chemicals Ltd. case was followed in Rohtas Industries Ltd. case (supra). The ratio of these two judgments is not remotely applicable to the facts of the instant case. Here in this case, the State Government has to extend the period for execution of the scheme only when it is satisfied that it was beyond the control of the trust to execute a scheme within the period prescribed or within the extended period.
10. The constitutional validity of Section 10(3)(c) of the Passport Act was examined by the Supreme Court in Smt. Maneka Gandhi v. Union of India, AIR 1978 SC 597. It was held that it is void as it conferred arbitrary power since it did not provide for an opportunity of hearing to the holder of the Passport before the Passport is impounded. But here in this case, as stated earlier, the affected parties were afforded an opportunity of hearing by the trust before the scheme was forwarded by the State government for approval and the State Government had examined the matter again before sanctioning the scheme. Therefore, the judgment in Maneka Ghandhi's case (supra) has not the remotest applicability to the facts of the case in hand. Similarly, the ratio laid down in Swadeshi Cotton Mills v. Union of India,(1981)1 SCC 664:(AIR 1981 SC 818), Baldev Singh v. State of Himachal Pradesh, AIR 1987 SC 1239, State Electricity Board v. The Labour Court U. P. Kanpur, AIR 1984 SC 1450: (1983 Lab 1C 1520) and Central Inland Water Transport Corporation Ltd. s. Brojo Nath Ganguly, AIR 1986 SC 1571 :(1986 Lab 1C 1312) has no application to the facts of the present case. Again the judgment rendered in The Assistant Collector of Customs and Supreintendent, Preventive Senvice Customs. Calcutta v. Charan Dass Malhotra. AIR 1972 SC 689, power of the Collector to extend the period for giving notice of confiscation under Section 124(a) of the Customs Act was considered. Section 110 of the Customs Act deals with searches, seizure and arrest. Sub-section (2) of Section 110 provided that where any goods are seized under sub-section (1) and no notice in respect thereof is given under clause (a) of Section 124 within six months of the seizure of goods, the goods were to be returned to the person from whose possession they were seized. A proviso was added to Section 110 under which the Collector o'f Customs could extend the time for a period not exceeding six months on sufficient cause being shown. Extensions were granted but without am notice to the aggrieved party. The Supreme Court found that the extension could be granted on sufficient cause being shown and this presupposes an enquiry by the Collector to determine if sufficient cause is shown to grant an extension of time. Under Section 110 of the Customs Act, the goods are to be returned to the person from whose possession they were seized after the expiry of six months, and if the goods are not to be returned within 6 months the period has to be extended on sufficient cause and this presupposes an enquiry into the matter by the Collector. This decision also does not apply to the facts of the present case. As observed in the earlier part of this judgment, after the scheme has been notified, it assumes finality and before the Government notifies the scheme, it ensures that the mandatory provisions of the statute relating to the framing of the scheme have been duly complied with. It is well settled now that a statute has to pass the test of reasonable classification, but legislative or executive actions could be declared bad if these were arbitrary. There is no arbitrariness in the provision under Challenge. The State Government can extend the period for execution of the scheme if it is, satisfied on material that the trust could not execute the scheme within the period prescribed for the reasons beyond its control.
11. It is evident from notification Nos. 14, 38,80, 3C1 of March 19, 1981 Annexure P-4 in Civil Writ Petition No. 445 of 1983 (Jatinder Pal Singh etc. v. State of Haryana 14 35 3CI-80 of February 10, 1981 Annexure P-7 and 14'35,3C1-80 of August 27, 1982 Annexure P-11 both in Civil Writ Petition No. 3127, 1983 (Mohinder Kumar v. The State of Haryana) and 14, 37,'3CI-80 of February 10. 1981 Annexure P-6, in Civil Writ Petition No. 27 of 1983 (Vinod Kumar Jain v. The State of Haryana that the material existed before the State Government and it was considered sufficient by it to form an opinion recommending the grant of extension of time for executing the scheme. If within the period prescribed the scheme is not executed, the Stale Government can extend the time to execute the same on satisfaction that it was beyond the control of the Trust to execute the scheme within the prescribed period. Sufficient guidelines for exercising the powers have been mentioned in the provision itself. The action of State Government cannot be said to be unjustified if the material exists. To ascertain whether it was sufficient for the Governrnent to come to the conclusion that the trust could not execute the scheme within the prescribed period the material before the State Government could not be examined by the Court objectively. The matter pertains to the subjective satisfaction of the authorities: The moment it is found that the material which have been used by the State Government in arriving at a satisfaction exists, the action of the State Government cannot be stated to the arbitrary.
12. In view of the above discussion, it is unhesitatingly held that the provision of. Section 44-A of the Act is valid and so is the action of the State Government taken under, it. In holding the above view I am fortified by judgment of the Divisional Bench of this Court rendered in Municipal Committee, Bhiwani v. Munshi Ram etc., 1989 (2) PLR 202: AIR 1990 P & H 169.
13. Mr. Karan Singh, Deputy Advocate General, Haryana has slated at the bar that, scheme Nos. 34, 38 and 39 involved in Civil Writ Petition Nos. 445/1983, (Jatinder Pal Singh etc. v. State of Haryana 3127/1983, (Mohinder Kumar etc. v. State of Haryana etc.); and 27/1983 (Vinod Kumar Jain v. The State of Haryana respectively, have since lapsed. In view of the said statement these writ petitions have become infructuous.
14. Resultantly, the constitutional validity of Section 44-A of the Punjab Town Improvement Act, (IV of 1922), is upheld but in view of the schemes involved in the three writ petitions having lapsed, as stated by the Deputy Advocate General, Haryana at the bar, all these three petitions are dismissed having become infructuous. However, the parties are left to bear their own costs.
15. Order accordingly.