Punjab-Haryana High Court
Gian Chand And Ors. vs The State Of Punjab And Anr. on 2 February, 1996
Equivalent citations: (1996)113PLR366, 1996 A I H C 4671, (1996) 2 RENTLR 289, (1996) 2 RRR 235, (1997) 1 LANDLR 197, (1996) 113 PUN LR 366, 1996 REVLR 1 495, (1996) LACC 444
Author: V.S. Aggarwal
Bench: V.S. Aggarwal
JUDGMENT Amarjeet Chaudhary, J.
1. In this writ petition filed under Articles 226 and 227 of the Constitution of India, the question of law that arises for determination is as to whether, by reason of coming into operation of land Acquisition (Amendment) Act, 1984 (for short 'the Amendment Act) with effect from September 24, 1984, proviso to Section 42 of the Punjab Town Improvement Act, 1922 (for short 'the Punjab Act') added vide PA 13 of 1982 has become void and thereafter no declaration and notification Under Section 42 of the Punjab Act could be issued after the expiry of one year from the date of a first publication of notice relating to the scheme Under Section 36 of the Punjab Act and also that as to whether by reason of Article 254 of the Constitution of India, the said impugned proviso to Section 42 of the Punjab Act being repugnant and inconsistent with the amendment Act has become void since the coming into operation of the Amendment Act.
2. In order to sort out controversy, brief facts leading to the filing of this writ petition may be noticed. The petitioners are in possession of certain shops in Grain Market, Malerkotla, as tenants. They have impugned the scheme known as "Bans Bazar Commercial Scheme (hereinafter referred to as the 'scheme') framed by the Improvement Trust Malerkotla District Sangrur. The shops are situated on the Nallah. These are being acquired for the purpose of development of commercial area. The scheme has been impugned for the reasons that in the notice Annexures P-l and P-2 dated February 10, 1988 and February 18, 1988 respectively which are purported to have been issued Under Section 36 of the Punjab Act, the only mention is that decision has been taken to frame a commercial Scheme known as 'Bans Bazar Scheme' which would include an area of two Kanals. The mandatory provisions of Section 36 which require that such a notice should be prepared and published after the Scheme has been framed have not been complied with. It was incumbent upon the respondents to have mentioned in the notices that the Scheme had been framed comprising the boundaries of the locality and the place at which details of the Scheme including a statement of land proposed to be acquired and a general map of the locality comprised in the scheme could be inspected. The petitioners were only intimated that a decision had been taken by respondent No. to frame the scheme. In the notices copies of which are Annexures P-1 and P-2, there is no mention that the scheme had been framed. As such this cannot be treated as notices Under Section 36 of the Act. It has been urged that no proper opportunity was granted to the petitioners for filing objections. As such, the scheme deserves to be quashed.
3. The star argument of learned counsel for the petitioners is that no declaration Under Section 42 of the Punjab Act can be issued after the expiry of one year from the date of publication of notice Under Section 36 of the Punjab Act. The provisions of Section 42 of the Punjab Act are repugnant and inconsistent.
4. In rebuttal, the learned counsel for the improvement Trust and the State have refuted the submissions made by the learned counsel for the petitioners.
5. We have heard learned counsel for the parties at length, perused the paper book and considered the law cited at the Bar.
6. In order to determine the legal points raised in the writ petition with regard to the legality of proviso to Section 42 of the Punjab Act vis-a-vis the Land Acquisition Act, which is a Central Act, it is worth while to examine the various provisions of the Punjab Act vis-a-vis the Amendment Act.
7. The Punjab Act came into force on October 29, 1922. The Act, as the Preamble discloses, was enacted with a view to make provision for the improvement of certain areas.
8. Chapter II of the Punjab Act deals with the Constitution of Improvement Trusts for carrying out provisions of the Punjab Act and other matters connected therewith. Section 3 of the Punjab Act creates Town Improvement Trust as a body corporate and therein vests the duty of carrying out the provisions of the Act in any local area, Chapter III deals with the proceedings of the Trust and the Committees.
9. Chapter IV of the Punjab Act identifies various types of schemes the circumstances in which these could be taken up by the Trust the matters which the given Scheme or combination of the Scheme could provide for the mode and manner of framing of the Scheme by the Trust and the ultimate sanctioning of the same by the Government.
10. Section 36 of the Punjab Act provides for preparation, publication and transmission of notice as to Improvement Schemes and supply of documents to the applicants and for receiving of objections thereto within the period prescribed therefore in the notice. Under this Section, when an improvement scheme has been framed, the Trust is required to prepare a notice stating the framing of the Scheme, the boundaries of the area comprised in the Scheme and certain other particulars in regard to land which is proposed to be acquired and that notice has to be published in the manner therein provided. Section 37 deals with transmission of representation by the Committee as to improvement Scheme. Under Section 38, within 30 days following the publication of the notice Under Section 36, the Trust has to serve a notice on various persons mentioned therein including persons whose land is proposed to be acquired. Such notice is issued if he objects to the acquisition to state his reasons within sixty days. Sub-section (2) of Section 42 of the Punjab Act provides that notification under sub-section (1) of Section 42 in respect of any Scheme shall be conclusive evidence that the scheme has been duly framed and sanctioned and that no notice in respect of sanction of a scheme shall be issued after expiry of three years from the date of first publication of notice relating to the scheme Under Section 36.
11. At this stage, the material provisions of the Schedule may be referred to. The Schedule referred to in Section 59 sets out the modifications made in the Land Acquisition Act and only those are referred here in which are relevant for the purpose of this case.
12. The expression "Local Authority" Under Section 3(ee) includes a Trust constituted under the Punjab Act. Vide Section 2, clause (1), the first publication of a notice of any improvement scheme Under Section 36 of the Punjab Act shall be substituted for and has the same effect as publication in the official Gazette and in the locality of a notification under sub-section (1) of Section 4 of the Central Act, except where a declaration Under Section 4 or Section 6 of the Central Act, have previously been made and is still in force. By clause (2) of Section 2 inter alia, the publication of a notification Under Section 42 is substituted for and has the same effect as a declaration by the State Government Under Section 6 of the Central Act unless a declaration under the last mentioned Section has previously been made and is still in force.
13. Relevant provisions of the Central Act, as amended by the Amendment Act read thus,--
"Section 4 :- Publication of preliminary notification and powers of officers thereupon:-
(1) Whenever it appears to the appropriate government that land in any locality is needed or is likely to be needed for any public purpose or for a Company, a notification to that effect shall be published in the official Gazette and in two daily newspapers circulating in that locality of which at least one shall be in the regional language and the Collector shall cause public notice of the substance of such notification to be given at convenient places in the said locality the last of the dates of such publication and the giving of such public notice being hereinafter referred to as the date of the publication of the notification.
(2) Thereupon it shall be lawful for any officer either generally or specifically authorized by such Government in this behalf and for his servants and workmen,--
to enter upon and survey and take levels of any land in such locality; to dig or bore into the sub-soil;
to do all other acts necessary to ascertain whether the land is adapted for such purpose;
to set out the boundaries of the land proposed to be taken and the intended line of the work (if any) proposed to be made thereon;
to mark such levels, boundaries and line by placing marks and cutting trenches; and where otherwise the survey cannot be completed and the levels taken and the boundaries and line marked, to cut down and clear away any part of any standing crop, fence or jungle;
Provided that no person shall enter into any building or upon any enclosed court or garden attached to a dwelling house (unless with the consent of the occupier thereof) without previously giving such occupier at least seven days' notice in writing of his intention to do so."
6. Declaration that land is required for a public purpose -(1) subject to the provisions of part VII of this Act, when the appropriate Government is satisfied after considering the report, if any made Under Section 5-A, sub-section (2) that any particular land is needed for a public purpose, or for a Company, a declaration shall be made to that effect under the signature of a Secretary to such Government or of some officer duly authorized to certify its order and different declarations may be made from time to time in respect of different parcels of any land covered by the same notification Under Section 4 sub-section (1), irrespective of whether one report or different reports has or have been made (wherever required) Under Section 5-A sub-section (2):
Provided that no declaration in respect of any particular land covered by a notification Under Section 4, sub-section (1),-
(i) published after the commencement of the Land Acquisition (Amendment and Validation) Ordinance, 1967 (1 of 1967), but before the commencement of the Land Acquisition (Amendment) Act 1984, shall be made after the expiry of three years from the date of the publication of the notification;
Or
(ii) published after the commencement of the Land Acquisition (Amendment) Act, 1984, shall be made after the expiry of one year from the date of the publication of the notification;
Provided further no such declaration shall be made unless the compensation to be awarded for such property is to be paid by a Company, or wholly or partly out of public revenues or some fund controlled or managed by a Local authority."
14. A scrutiny of the various provisions as reproduced above, of the Punjab Act shows that they provide for the constitution of trust and invest it with very wide powers to carry out various development and improvement schemes. The Punjab Act also provides for compulsory acquisition of land Under Section 28(2) (i) in case it becomes necessary to do so for the purpose of execution of the scheme. The provisions contained in Chapter IV, Sections 22 to 44 of the Punjab Act deal with the framing processing and sanctioning of various scheme such as improvement, rebuilding development extension, housing scheme etc. Special provisions laying special procedure have been provided under the Punjab Act giving a go by to the general procedure for acquisition of land for public purpose till the stage of obtaining orders for acquisition of land Under Section 7 of the Land Acquisition Act, 1894 (for short 'the Central Act'). It is with this end in view that State Legislature enacted Section 59 of the Punjab Act providing that any land or any interest therein required by the Trust for any of the purpose of the Punjab Act may be acquired under the provisions of the Central Act which for this purpose shall be subject to the modifications specified in Schedule to the Punjab Act.
15. A perusal of the Schedule shows that for this purpose, the legislature has proceeded to adopt the procedure for acquisition of land laid down in the Central Act in such a way that it appropriately achieves the object of acquiring land for the purposes of a Scheme formulated by the trust. On the face of it, the legislature intendment that the land for the purposes of the Scheme formulated under the Punjab Act is to be acquired by following the procedure prescribed by the Central Act, subject, however, to the modifications and changes effected by the Scheduled is absolutely clear. In other words what the Legislatures intended to do was to lay down a special procedure for acquisition of land for the purpose of Scheme formulated under the Punjab Act and that procedure has to be spelled out by perusing the provisions of the Central Act together with modifications indicated in the Schedule. Viewed in this light, it becomes absolutely clear that, in the instant case what the legislature did was nothing more than incorporating with modification and amendment, certain provisions existing in the Central Act and for convenience of drafting it did so by reference to the Central Act instead of setting out for itself at length the provisions which it wanted to adopt.
16. A similar State Act, i.e. U.P. Away Evam Vikas Parishad Adhiniyam, 1965 (for short the U.P. Act) dealing with the same subject matter i.e. an Act to provide for the establishment, incorporation and functioning of a housing and development Board in the State of U.P. Its provisions for framing processing and sanctioning of various scheme are contained in Chapters I, II and Sections 15 to 33 of the Act. The provisions are quite similar in its nature with regard to framing, processing and sanctioning of Scheme as the Punjab Act. Section 55 of the U.P. Act also makes the provisions of the Central Act as amended in its application to the State of U.P. subject to the modification specified in the Schedule to the U.P. Act for the purposes of any land or interest therein required by the Board for the purposes of U.P. Act. The Board is the statutory authority under the U.P. Act to frame and carry out various schemes framed under the U.P. Act in clause 2 the first publication in the Official Gazette of a notice of any housing or improvement scheme Under Section 28 of the U.P. Act has the same effect as publication in the Official Gazette and in the locality of a notification Under Section 4(1) of the Central Act. Similarly, Section 32 of the U.P. Act has been equated with a declaration by the State Government Under Section 6 of the Central Act. Sections 55, 28, 32 and clause 2 of the Schedule of the U.P. Act are given hereunder :-
"55. Power to acquire land. (1) Any land or any interest therein required by the Board for any of the purposes of this Act, may be acquired under the provisions of the Land Acquisition Act, 1894 (Act No. 1 of 1894) as amended in its application of Uttar Pradesh, which for this purpose shall be subject to the modifications specified in the Schedule to this Act.
(2) If any land in respect of which betterment fee has been levied under this Act is subsequently required for any of the purposes of this Act, such levy shall not be deemed to prevent the acquisition of the land under the Land Acquisition Act, 1894 (Act No. 1 of 1894).
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28. Notice of housing and improvement scheme. (1) When any housing or improvement scheme has been framed, the Board shall prepare a notice to that effect specifying-
(a) the boundaries of the area comprised in the scheme;
(b) the dates, hours and place or places at which a map of the land proposed to be acquired and of the land in respect of which betterment fee is proposed to be levied may be seen; and
(c) the date by which objections to the scheme may be made.
(2) The Board shall-
(a) cause the said notice to be published weekly for three consecutive weeks in (i) the Gazette and (ii) two daily newspapers having circulation in the area comprised in the scheme at least one of which shall be a Hindi Newspaper; and
(b) send a copy of the notice to the local authority or authorities within whose jurisdiction the area comprised in the scheme lies.
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32. Commencement of Scheme.-Whenever the Board of the State Government sanctions a housing or improvement scheme, it shall be notified in the Gazette.
(2) The notification under sub-section (1) in respect of any scheme shall be conclusive evidence that the scheme has been duly framed and sanctioned.
xx xx xx xx xx xx Clause 2 of the Schedule;-
2. Effect of notices under this Act.-(1) The first publication in the official Gazette, of a notice of any housing or improvement scheme Under Section 28 or under clause (a) of sub-section (3) of Section 31 of the Act shall be substituted for and have, in relation to any land proposed to be acquired under the scheme, the same effect as publication in the official gazette, and in the locality, of a notification under sub-section (1) of Section 4 of the said Act, except where a notification Under Section 4 or a declaration Under Section 6 of the said Act has previously been made and is still in force and the provisions of Section 5-A of the said Act shall be inapplicable in the case of such land.
(2) The issue of a notice under clause (c) of sub-section (3) of Section 23 of this Act in the case of land acquired under a Bhavi Sarak Yojana and the publication of a notification under sub-section (1), or as the case may be, under sub-section (4) of Section 32 of the this Act in the case of land acquired under any other housing or improvement scheme under this Act shall be substituted for and have the same effect as a declaration by the State Government Under Section 6 of the said Act, unless a declaration under the last mentioned section has previously been made and is still in force.
(3) In a case to which sub-paragraph (1) or sub-paragraph (2) applies a notification under sub-section (2) of Section 33 or under sub-section (3) of Section 49 of this Act involving alteration of the extent of the land proposed to be acquired shall have the effect of correspondingly modifying the notification under sub-section (1) of Section 4 and the declaration Under Section 6 of the said Act, so, however, that any such modification shall be without prejudice to the validity of anything previously done under the original notification or declaration."
17. A similar question as to whether the limitation of three years prescribed under first proviso to Section 6 of the Central Act as it stood before the Amendment Act would apply to acquisitions Under Sections 28, 32 of the U.P. Act was decided by the Apex Court in Gauri Shankar Gaur and Ors. v. State of U.P. and Ors., A.I.R. 1994 Supreme Court 169. The first proviso to Section 6 of the Central Act, provided that no declaration in respect of any particular land covered by a notification Under Section 4(1) published after the commencement of Land Acquisition (Amendment and Validation) Ordinance 1967 before the commencement of the Central Act shall be made after the expiry of three years from the date of the publication of notification. However, Section 32 of the U.P. Act though by virtue of a Schedule was equated with Section 6 of the Central Act provided no such period of declaration. The Hon'ble Apex Court while deciding the said proposition observed in para 33 as follows:-
"33. Section 55 of the Act read with the schedule made an express incorporation of the provisions of Section 4(1) and Section 6 as modified and incorporated in the schedule. The schedule affected necessary structural amendments to Sections 4, 6, 17 and 23 incorporating therein the procedure and principles with necessary modifications. Sections 28(2) and 32(1) prescribed procedure for publication of the notifications Under Sections 28(1) and 32(1) of the Act without prescribing any limitation. It is a complete code in itself. The Act is not wholly unworkable or ineffectual. May be incompatible with provisos to Section 6(1) of the L.A. Act. The U.P. Legislature did not visualise that later amendment to Central Act 1/1894 i.e. L.A. Act would be automatically extended. We have, therefore, no hesitation to conclude that Section 55 and the Schedule adapted only by incorporation of Sections 4(1) and 6(1) and the subsequent amendments to Section 6 did not become part of the Act and they have no effect on the operation of the provisions of the Act."
18. The Apex Court also decided the contention raised in Gauri Shankar's case (supra) as to whether by operation of proviso to Article 254(2) of the Constitution of India, Section 55 and the Schedule of the U.P. Act became inconsistent with the first proviso to Section 6(1) of the Central Act. The observations of the Apex Court in paras 37, 38 40 and 41 can be cited with advantage: -
"37. It is next contended that by operation of proviso to Article 254(3) of the Constitution, Section 55 and the Schedule became inconsistent with the first proviso to Section 6(1) of the L.A. Act. The Act received the assent of the President. The Amendment Acts of 1967 and 1984 brought on Statute the first and Second proviso into Section 6(1) of the L.A. Act. The Act being earlier Section 55 and the Schedule became void the first proviso to Section 6(1) of L.A. Act would be applied and the declarations made beyond three years became void and inoperative.............
38 ........ It is not in dispute that the U.P. Legislature has legislative competence to make the Act. Instead of enacting separately, a separate procedure with necessary modifications Under Section 55 and the Schedule applied the procedure provided Under Sections 4 and 6 of the L.A. Act with modifications enacted thereunder. Since, the Act is not an Act to acquire the land, the question of inconsistency does not arise and the proviso to Article 254(2) is not attracted.
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40. It is seen that the Act was made under Entry 6, Entry 5 and Entry 66 of the State List and incidentally it took recourse to Entry 42 of the Concurrent List. Presumptive evidence furnishes that the State Legislature would be aware of the Central Law and appreciated the local needs and the remedy is provided for and would make the law. Every endeavour should be made to allow both the laws to operate in their respective field. Unless State law is fully inconsistent and absolutely irreconcilable it would not be correct to conclude that repugnancy renders the State law void. Since the main purpose of the Act is not the acquisition of the property as the provisions do indicate in pith and substance that they do not occupy the same field. It is not fully inconsistent and are not absolutely irreconcilable. Both do co-exist in relation to the procedure prescribed under the Acts. The Act does co-exist independently without in any colliding with the L.A. Act. Therefore Section 55 of the Schedule did not become void.
41. Thus considered we hold that the view of the Full Bench is perfectly legal and already was upheld by this Court. The limitation of three years prescribed under the first proviso to Section 6 of the L.A. Act is not attracted in its application to the State of U.P. vis-a-vis the procedure prescribed in paragraph 2 of the Schedule to the Act read with Section 55 of the Act."
19. Though in the present case, the issue for determination is as to whether by virtue of the Amendment Act proviso to Section 6 which provides only a period of one year for issuance of declaration Under Section 6 from the date of notification Under Section 4(1) will render proviso to Section 42 of the Punjab Act which provides for a period of three years in respect of sanction of the scheme from the date of first publication of the notice relating to that scheme Under Section 36 of the Punjab Act void or invalid, yet the ratio of Gauri Shankar's case (supra) squarely applies to the present issue in question. A recent judgment of the Apex Court in "State of Maharashtra and Anr. v. Sant Joginder Singh Kishan Singh and Ors., A.I.R. 1995 S.C. 2181 also squarely decided these questions of law in the negative.
20. In view of above discussion, the questions of law raised in the present writ petition are answered in the negative.
21. We also do not find any merit in the submission of learned counsel for the petitioners that notice Under Section 36 was published in contravention of the Punjab Act. From the written statement, it is apparent, that initially there were some irregularities in the notice but the same were rectified subsequently. The first notice was published on February 18, 1988 in the daily 'Ranjit' whereas the second notice was issued on February 25, 1988 and the third notice on March 3, 1988. In order to give wide publicity and to afford an opportunity to every occupier notices were also got published in Hind Samachar (a Urdu daily) Jalandhar on February 21, 1988, February 28,1988 and March 6,1988 and also in the Gazette notifications dated February 26, 1988, March 4 1988 and March 11, 1988. In all these notices issues from time to time, it has been mentioned that the Trust has framed the Scheme and the description of the said area and other details have been specifically mentioned in the notices. As such the requirements of Section 36 were duly complied with. It is also apparent from the written statement that the petitioners had filed objections within the stipulated period of thirty days and the same were duly considered and disposed of after affording an opportunity of hearing to the petitioners. On the request of the petitioners documents were made available but the same were not collected by the petitioners nor any fee was deposited. As such, the petitioners plea that no opportunity was granted to them for filing objections is without any force.
22. In view of foregoing discussion, there is no merit in this writ petition and the same is dismissed. No costs.