Punjab-Haryana High Court
Bhatinda Improvement Trust vs Madan Lal & Others on 2 April, 2012
Bench: Hemant Gupta, A.N.Jindal
IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH
Date of Decision: 2nd April, 2012
LPA No.44 of 1990 &
Cross Objections No.17 of 1991
Bhatinda Improvement Trust, Bhatinda ...Appellant
Vs.
Madan Lal & others ...Respondents
LPA No.45 of 1990
Bhatinda Improvement Trust, Bhatinda ...Appellant
Vs.
Bhola Singh & others ...Respondents
LPA No.46 of 1990
Bhatinda Improvement Trust, Bhatinda ...Appellant
Vs.
Ram Pal & others ...Respondents
LPA No.47 of 1990
Bhatinda Improvement Trust, Bhatinda ...Appellant
Vs.
Mohan Lal & others ...Respondents
LPA No.48 of 1990 &
Cross Objections No.18 of 1991
Bhatinda Improvement Trust, Bhatinda ...Appellant
Vs.
Buta Singh & others ...Respondents
LPA No.49 of 1990 &
Cross Objections No.19 of 1991
Bhatinda Improvement Trust, Bhatinda ...Appellant
LPA No.44 of 1990 & other connected matters 2
Vs.
Virinder Mohan & others ...Respondents
LPA No.50 of 1990
Bhatinda Improvement Trust, Bhatinda ...Appellant
Vs.
Satish Kumar Singal & another ...Respondents
LPA No.467 of 1990 &
Cross Objections No.20 of 1991
Bhatinda Improvement Trust, Bhatinda ...Appellant
Vs.
Mrs. Anita Garg & others ...Respondents
Present: Mr. Salil Sagar, Sr. Advocate, with
Mr. Samarth Sagar, Advocate, for the appellant.
Mr. J.R.Mittal, Senior Advocate, with
Mr. Kashmir Singh, Advocate, for the respondents.
LPA No.466 of 1990
Bhatinda Improvement Trust, Bhatinda ...Appellant
Vs.
Ajinder Singh Mann & others ...Respondents
Present: Mr. Salil Sagar, Sr. Advocate, with
Mr. Samarth Sagar, Advocate, for the appellant.
Mr. Shailendra Jain, Advocate,
for respondent Nos.1 to 3.
Mr. Sandeep Moudgil, DAG, Punjab,
for respondent No.4.
LPA No.628 of 1996
The Sewak Co-operative House Building Society Ltd. ...Appellant
Vs.
Bhatinda Improvement Trust, Bhatinda & another ...Respondents
LPA No.44 of 1990 & other connected matters 3
Present: Mr. J.R.Mittal, Senior Advocate, with
Mr. Kashmir Singh, Advocate, for the appellant.
Mr. Salil Sagar, Sr. Advocate, with
Mr. Samarth Sagar, Advocate, for respondent No.1.
Mr. Sandeep Moudgil, DAG, Punjab,
for respondent No.2.
CWP No.2238 of 1989
Tarsem Kumar & others ...
Petitioners
Vs.
Bhatinda Improvement Trust, Bhatinda & another ...Respondents
CWP No.16673 of 1989
Gurtej Singh & others ...Petitioners
Vs.
Bhatinda Improvement Trust, Bhatinda & another ...Respondents
CWP No.16674 of 1989
Pala Ram & others ...Petitioners
Vs.
Bhatinda Improvement Trust, Bhatinda & another ...Respondents
CWP No.16675 of 1989
Gurcharan Singh & others ...Petitioners
Vs.
Bhatinda Improvement Trust, Bhatinda & another ...Respondents
CWP No.16676 of 1989
Kulwant Rai & others ...Petitioners
Vs.
Bhatinda Improvement Trust, Bhatinda & another ...Respondents
LPA No.44 of 1990 & other connected matters 4
CWP No.16677 of 1989
Mohar Singh & others ...Petitioners
Vs.
Bhatinda Improvement Trust, Bhatinda & another ...Respondents
CWP No.1566 of 1990
Hari Chand & others ...Petitioners
Vs.
Bhatinda Improvement Trust, Bhatinda & another ...Respondents
Present: Mr. J.R.Mittal, Senior Advocate, with
Mr. Kashmir Singh, Advocate, for the petitioners.
Mr. Salil Sagar, Sr. Advocate, with
Mr. Samarth Sagar, Advocate, for respondent No.1.
Mr. Sandeep Moudgil, DAG, Punjab,
for respondent No.2.
CWP No.1572 of 1990
Smt. Krishna Devi & another ...Petitioners
Vs.
Bhatinda Improvement Trust, Bhatinda & another ...Respondents
Present: Mr. D.D.Bansal, Advocate, for the petitioners.
Mr. Salil Sagar, Sr. Advocate, with
Mr. Samarth Sagar, Advocate, for respondent No.1.
Mr. Sandeep Moudgil, DAG, Punjab,
for respondent No.2.
CWP No.2053 of 1990
Daya Singh & others ...Petitioners
Vs.
Bhatinda Improvement Trust, Bhatinda & another ...Respondents
CWP No.3780 of 1990
Surinder Kaur Sindhu & others ...Petitioners
LPA No.44 of 1990 & other connected matters 5
Vs.
Bhatinda Improvement Trust, Bhatinda & another ...Respondents
CWP No.5021 of 1990
Kamlesh Rani & others ...Petitioners
Vs.
Bhatinda Improvement Trust, Bhatinda & another ...Respondents
Present: Mr. J.R.Mittal, Senior Advocate, with
Mr. Kashmir Singh, Advocate, for the petitioners.
Mr. Salil Sagar, Sr. Advocate, with
Mr. Samarth Sagar, Advocate, for respondent No.1.
Mr. Sandeep Moudgil, DAG, Punjab,
for respondent No.2.
CWP No.10650 of 1990
Lal Chand & another ...Petitioners
Vs.
The State of Punjab & another ...Respondents
Present: Mr. Gaurav Chopra, Advocate, for the petitioners.
Mr. Sandeep Moudgil, DAG, Punjab,
for respondent No.1.
Mr. Salil Sagar, Sr. Advocate, with
Mr. Samarth Sagar, Advocate, for respondent No.2.
COCP No.291 of 1994
Tarsem Kumar & another ...Petitioners
Vs.
Kamal Kant Goyal & another ...Respondents
COCP No.373 of 1994
Tarsem Kumar & another ...Petitioners
Vs.
Amarjeet Singh & others ...Respondents
Present: Mr. J.R.Mittal, Senior Advocate, with
Mr. Kashmir Singh, Advocate, for the petitioner(s).
LPA No.44 of 1990 & other connected matters 6
Mr. Salil Sagar, Sr. Advocate, with
Mr. Samarth Sagar, Advocate, for the respondents.
COCP No.1663 of 2007
Anita Garg & another ...Petitioners
Vs.
K.K.Yadav & others ...Respondents
Present: Mr. Arun Jain, Senior Advocate, with
Mr. Amit Jain, Advocate, for the petitioners.
Mr. Salil Sagar, Sr. Advocate, with
Mr. Samarth Sagar, Advocate, for the respondents.
CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA
HON'BLE MR. JUSTICE A.N.JINDAL
HEMANT GUPTA, J.
This order shall dispose of LPA Nos.44 to 50 of 1990 and Cross Objections Nos.17, 18 & 19 of 1991 filed by the writ petitioners in LPA Nos.44 of 1990, 48 of 1990 & 49 of 1990 respectively, arising out of an order passed by the learned Single Judge of this court on 20.10.1989 allowing the writ petitions quashing acquisition of land notified as 16.44 acres Town Planning Scheme between Panj Rattan Hotel and Sirhind Canal on Goniana Road published by the Bhatinda Improvement Trust (hereinafter called 'First Set of Cases') and LPA Nos.467 of 1990 and 466 of 1990 filed by the Bhatinda Improvement Trust arising out of the order passed by the learned Single Judge on 20.10.1989 and Cross Objections No.20 of 1991 filed by the writ petitioners in LPA Nos.467 of 1990; LPA No.628 of 1996 filed by the Sewak Cooperative House Building Society Ltd. arising out of the order passed by the learned Single Judge on 21.3.1996 and CWP Nos.2238, 16673 to 16677 of 1989, CWP Nos. 1566, 1572, 2053, 3780, 5021, LPA No.44 of 1990 & other connected matters 7 10650 of 1990 as well as COCP Nos.291 of 1994, 373 of 1994 & 1663 of 2007 in respect of 27.25 acres Town Planning Scheme (hereinafter called 'Second Set of Cases'). The second set of cases raises an additional question; as to whether the notification under Section 42 of the Punjab Town Improvement Act, 1922 (for short `the Act') has been published within three years of publication of the notification under Section 36 of the Act? Such issue shall be dealt with separately. Firstly, the first set of cases Facts:
A notification under Section 36 of the Act was published on 9.9.1976. Said notification was quashed by this Court on 3.12.1982 for the reason that the notification under Section 42 of the Act was not published within three years of the publication of the first notification.
Thereafter, on 6.1.1984, the Improvement Trust passed a resolution Annexure P.3, recommending the publication of Town Planning Schemes, as notified earlier. The learned Deputy Commissioner passed an order on 30.1.1984 suspending the said resolution of the Improvement Trust, but notification under Section 36 of the Act, was published in the following manner:-
Ajit Daily Jalandhar 4.2.1984 11.2.1984 18.2.1984 The Tribune, Chandigarh 10.2.1984 17.2.1984 24.2.1984 Government Gazette 24.2.1984 2.3.1984 9.3.1984 The objections to the Scheme of acquisition of the land could be submitted by any person within 30 days' from the date of first publication of the notice in terms of Section 36 of the Act. The notices under Section 38 of the Act were issued to the land-owners on or about 16.07.1987, though as per the provisions of the said Section, notices are required to be issued within 30 days to enable the landowners to submit objections within 60 days. Subsequently, notification under Section 42 of the Act was published on 28.01.1987. The award was announced by the Land Acquisition Collector on 23.12.1988.LPA No.44 of 1990 & other connected matters 8
The learned Single Judge allowed the writ petitions inter- alia, for the reason that the writ petitioners were not served with any notice under Section 38 of the Act. It was also held that when the resolution passed by the Trust was suspended by the Deputy Commissioner, then the State Government was required to pass a specific order rescinding the order of the Deputy Commissioner. Since no order was passed by the State Government, the proceedings for acquisition of the land of the petitioner are illegal and, thus, were quashed.
When the matter was taken up on 31.3.2009 before this court, learned counsel for the appellant took time to file an affidavit in each case, pointing out as to whether notice in terms of Section 38 of the Act has been served upon the respondent-land owners and whether any objections have been filed in response to the same. In terms of the said order, an additional affidavit dated 10.8.2009 of Shri Ashok Bharti, Chairman of the Improvement Trust, has been filed in each appeal.
The facts in all the cases are identical, but the arguments were addressed in LPA No.49 of 1990, therefore, the facts as are in the said case are being referred to.
It has been pointed out that the respondents are joint holders of the land measuring 2 bighas 13 biswas bearing Khasra Nos. 5029/1824 and 5031/1825 (0-18 biswas) along with other co-sharers, namely, Kulwant Rai son of Kundan - 1/3rd share, Meena wife of Arun Kumar (1/6th share), Lachhman Dass and Virinder Kumar etc., It is pointed out that Kulwant Rai, the joint holder was served with a notice under Section 38 of the Act and that he has filed objections. Thereafter, notification under Section 42 of the Act was issued. It is also mentioned that no reference was filed by the respondents before the Tribunal and that the Trust has deposited the compensation with the Land Acquisition Collector, Bhatinda.
LPA No.44 of 1990 & other connected matters 9Preliminary submissions:
The land owners have filed an application bearing CM No.515 of 2009 asserting that the appeal stands abated as legal heirs of Virinder Mohan have not been impleaded and that the appeals have not been filed by the Chairman of the Improvement Trust. In another application, it is averred that the appeals have been filed by Shri Mukhtiar Singh Sandhu, as Chairman of the appellant-Trust, though the notification appointing him as Chairman was published later on and that the copies of the writ petitions filed by the petitioners are fabricated. Notification dated 26.8.1991 appointing Shri Mukhtiar Singh Sandhu, as Chairman of the Improvement Trust with effect from 28.3.1989, has been appended as Annexure R.1 with the reply. Another preliminary objection has been raised by Shri Mittal, learned counsel appearing for respondent Nos. 1 and 2 during the course of arguments that LPA No. 1204 of 1990 filed by State against the impugned judgment stands dismissed on 12.9.1991, therefore, the order of the learned Single Bench stands merged with the order passed in appeal.
Therefore, the present appeals are liable to be dismissed being barred by res-judicata. It is contended that there is possibility of conflicting judgments; therefore, this court is barred from entertaining the present appeals. It is argued that the land was acquired by the State Government, therefore, once the appeal of the State has been dismissed, the Improvement Trust has no independent right to file an appeal against the order passed by the learned Single Bench.
The appellant - Trust filed an application for correction of the paper book which was allowed on 30.8.2011. It is thereafter, the appeals have been taken up for final hearing.
1. Whether the presentation of memorandum of appeal is by an authorized person?
LPA No.44 of 1990 & other connected matters 10
The present appeals were filed on 18.12.1989 through Shri Mukhtiar Singh Sandhu, as Chairman of the Improvement Trust. As per the Notification dated 26.8.1991, Shri Mukhtiar Singh Sandhu was appointed as Chairman of the Improvement Trust with effect from 28.3.1989. Therefore, in terms of the said notification, Shri Sandhu was competent to act as Chairman of the Improvement Trust and file the present appeals though the notification came to be issued later, but the appointment is from a date earlier than the filing of appeals. Thus any irregularity in filing of appeal stands removed. Such irregularity falls within the scope of Section 101(e) of the Act. The said provision contemplates that no act done or proceedings taken under the Act shall be questioned on the ground of any omission, defect or irregularity not affecting the merits of the case. Still further, the appeals were filed through Shri S.P. Karwal, Advocate for the Trust. Shri Karwal, was the Advocate for the Trust before the learned Single Judge as well. Therefore, the power of attorney granted by the Improvement Trust in favour of Shri S.P. Karwal to appear in the writ petition authorizes Shri Karwal to file the appeals as well in terms of Order 3 Rule 4 of the Code of Civil Procedure against the order passed by the learned single Judge.
2. Whether LPA No.49 of 1990 stands abated on account of failure to implead legal heirs of Virinder Mohan, one of the respondents?
Learned counsel for the land-owners have relied upon judgments of Hon'ble Supreme Court in Sheodan Singh Vs. Daryao Kunwar AIR 1966 SC 1332 and Puran Singh & others Vs. State of Punjab AIR 1996 SC 1092 as well as a Division Bench judgment of this Court reported as Dr. S.C.Gupta Vs. State of Punjab & others, 1991 PLJ 636 to contend that the failure of the appellant - Improvement Trust to LPA No.44 of 1990 & other connected matters 11 implead the legal heirs of deceased Virinder Mohan within a reasonable time, warrants dismissal of appeal as abated.
The judgment in Sheodan Singh's case (supra) is not helpful to the argument raised, as that was a case dealing with strict rules of res judicata in terms of Section 11 of the Code of Civil Procedure. In the aforesaid case, the predecessor-in-interest of appellant had brought two suits and was defendant in another two suits. The appeals were filed in the suits filed by the predecessor though all the four suits were decided by the common judgment. Under these circumstances, it was held that the judgment not appealed by the appellant or his predecessor amounts to res judicata. In Puran Singh's case (supra), the Hon'ble Supreme Court has held that the Code of Civil Procedure is not applicable to the writ proceedings. It was also held that Rule 32 of the Writ Rules framed by this court, does not specifically make the provisions of Code of Civil Procedure applicable to the petitions under Sections 226/227 of the Constitution of India. Therefore, it was held that the provisions of the Code of Civil Procedure are not applicable to the writ proceedings. It was observed as under:
"9. We have not been able to appreciate the anxiety on the part of the different Courts in judgments referred to above to apply the provisions of the Code to Writ Proceedings on the basis of Section 141 of the Code. When the Constitution has vested extraordinary power in the High Court under Articles 226 and 227 to issue any order, writ or direction and the power of superintendence over all Courts and tribunals throughout the territories in relation to which such High Court is exercising jurisdiction, the procedure for exercising such power and jurisdiction have to be traced and found in Articles 226 and 227 itself. No useful purpose will be served by limiting the power of the High Court by procedural provisions prescribed in the Code. Of course, on many questions, the provisions and procedures prescribed under the Code can be taken up as guide while exercising the power, for granting relief to persons, who have invoked the jurisdiction of the High Court. It need not be impressed that different provisions and procedures under the Code are based on well recognized principles for exercise of discretionary power and they are reasonable and rational. But LPA No.44 of 1990 & other connected matters 12 at the same time, it cannot be disputed that many procedures prescribed in the said Code are responsible for delaying the delivery of justice and causing delay in securing the remedy available to a person who pursues such remedies. The High Court should be left to adopt its own procedure for granting relief to the persons concerned. The High Court is expected to adopt a procedure which can be held to be not only reasonable but also expeditious."
After holding so, the Court observed that though Order 22 of the Code is not applicable to the writ proceedings or writ appeals, it does not mean that the petitioner or the appellant in such writ petition or writ appeal can ignore the death of the respondent, if the right to pursue remedy even after death of the respondent survives. Therefore, even an application filed beyond 90 days of the death of such respondent, the Court can take into consideration the facts and circumstances of a particular case for purpose of condoning the delay in filing the application for substitution of the legal representative.
The aforesaid judgment came up for consideration before the Full Bench of this Court in Jagdish Chander Vs. State of Haryana & another (2005) 3 SLR 312, wherein it has been held to the following effect:
"A catena of other judgments have been referred but it would not be of any consequence that all the judgments should be mentioned especially when the matter has been set at rest in view of the judgment of the apex Court and so also the judgment of the Full Bench of Andhra Pradesh High Court with which I am in respectful agreement. It is correct that none of the cases the applicability of Order 21 rule 11 CPC was canvassed or was at issue, dehors of this, the principle has been enunciated that the provisions of the Code of Civil Procedure shall not be applicable mutatis mutandis to the proceedings initiated and completed under Articles 226/227 of the Constitution especially in view of the explanation added to Section 141 of the Code. The powers of the High Court under Articles 226/227, are enormous and expendous but the same have to be exercised consciously and cautiously so that none of the parties would suffer in any manner resulting into injustice accordingly. Justice hangs in the scale and the scale is in the hands of the one, who presides, LPA No.44 of 1990 & other connected matters 13 however, the balance has to be brought about not only for the satisfaction of the one, who presides, but for the satisfaction of one and all and that it should be seen, reflected and felt accordingly. The act so committed should never ever be permitted to create any dent in the judicious existence of the society with which it clothes the Court for dispensation of justice. Once the matter has been set at rest or comes to rest, the right so deciphered should reach the person, who has asked for it and again in an efficacious manner. Thus, the procedure and the method adopted by the Court for implementation, which has rendered such judgment, should not be allowed to be bogged down by the technicalities. The adoption of procedure has been left to the discretion of the Court as has been observed by the apex Court. Such discretion should be exercised in a discreet and crystal clear manner so that the same is not shrouded or impinged upon by any court."
In Dr.S.C.Gupta's case (supra), the judgment in Sheodan Singh's case (supra) was followed by the Division Bench of this court to return a finding that once the appeal of one of the tenants of society stands dismissed, the appeal by another tenant would be barred. The said case also relies upon Section 11 of the Code of Civil Procedure though in terms of the judgment in Puran Singh's case (supra), Code of Civil Procedure is not applicable to the writ proceedings.
Since the Code of Civil Procedure is not applicable to the writ proceedings, therefore, the non-impleading of legal heirs within the period of limitation will not lead compulsory abatement of appeal. Still further, the interest of the deceased, legal representatives of Virinder Mohan and that of the other co-petitioners is the common being co- sharers. Therefore, one co-owner can represent the estate of the other. In these circumstances, we do not find that non-impleading of legal heirs of deceased Virinder Mohan renders the appeal as abated.
3. Whether the present appeals are barred by principle of res judicata?
LPA No.44 of 1990 & other connected matters 14
We do not find that argument, that the appeal is not maintainable for the reason that the State's appeal stands dismissed, has any merit. The present appeal was admitted for final hearing on 29.1.1990, whereas the State had filed appeal along with an application for condonation of delay thereafter. The Division Bench vide order dated 12.9.1991 had returned a finding that no case is made out for condonation of delay. Thus, the application to seek condonation of delay was dismissed and consequently the appeal was dismissed as well. The Bench was not apprised with the fact that the appeal filed by the Improvement Trust stands admitted. In fact, for the reasons recorded while deciding question No.2 in respect of abatement of appeal on account of failure to implead the legal heirs of Virinder Mohan are pari materia applicable in respect of principle of res judicata as well.
Even otherwise, the dismissal of the application seeking condonation of delay does not amount to merger. In fact, merger would be when the memorandum of appeal is presented within the period of limitation and the appeal is dismissed on merits. In Chandi Prasad & others Vs. Jagdish Prasad & others (2004) 8 SCC 724, it was held that when an appeal is dismissed on the ground that delay in filing the same, the doctrine of merger shall not apply.
In State of Kerala v. Kondottyparambanmoosa, (2008) 8 SCC 65, it was held as under:-
"24. Keeping these principles as enunciated by this Court in the aforesaid three decisions in mind and applying the said principles in the facts of this case, we have no hesitation in our mind to conclude that the High Court in the impugned order did not at all consider that in the earlier revision order of the High Court, revisional application was rejected not on merits but only on the ground of delay. Therefore, it must be held that since the earlier revision application was not rejected on merits, the said order rejecting the same on the ground of delay cannot be said to be the order of affirmance and that being the position, we must hold that since the earlier revision petition was not decided on merits, the doctrine of merger cannot be applied to the facts and circumstances of the present case. In this connection an LPA No.44 of 1990 & other connected matters 15 observation made by this Court in Chandi Prasad v. Jagdish Prasad, needs to be reproduced which is as under: (SCC p. 732, para 28) "28. ... when an appeal is dismissed on the ground that delay in filing the same is not condoned, the doctrine of merger shall not apply." (emphasis supplied)
25. In this view of the matter, we are, therefore, of the opinion that the doctrine of merger would only apply in a case when a higher forum entertains an appeal or revision and passes an order on merit and not when the appeal or revision is dismissed on the ground that delay in filing the same is not condoned. In our view, mere rejection of the revision petition on the ground of delay cannot be allowed to take away the jurisdiction of the Board, whose order forms a subject-matter of petition and Section 85(9) of the Act confers powers on the Board to reopen the case if such grounds for reopening the case are shown to exist."
A Single Judge of this court in a judgment reported as Sita Ram v. Smt. Mahadi and others, 2006(3) PLR 115 held as under:-
"15. However, it was held that when an appeal against the original decree is dismissed on the ground of delay and the aforesaid delay is not condoned, the doctrine of merger shall not apply.
16. In these circumstances, it is apparent that the controversy in question is squarely covered in favour of the petitioner by the judgment of this Court in Chhota Ram's case and the judgment of the Apex Court in Chandi Prasad's case (supra)."
4. Whether the appeals by the Trust are maintainable?
The argument of learned counsel for the respondents is that publication of the final scheme is by the State Government under Section 42 of the Act and once the State's appeal stands dismissed, the Improvement Trust does have no locus to challenge the order passed by the learned Single Judge in appeal.
We do not find any merit in the said argument. The process of preparation and publication of the Scheme including acquisition of land for the purpose of such Scheme starts with the LPA No.44 of 1990 & other connected matters 16 Trust. It is the Trust, which has to frame scheme and publicizes the same in the manner prescribed under Section 36 of the Act. It is the Trust, who has to give notice to the occupiers under Section 38 of the Act and the Trust is to consider the same under Section 40 thereof. Section 41 of the Act empowers the State Government to sanction with or without modification any Scheme submitted to it and Section 42 of the Act gives finality to the Scheme, when the notification is published.
Though the final notification was published by the State Government, but the Scheme is prepared and is to be implemented by the Trust alone. The Trust is vitally interested in success of the Scheme, as it is the Trust, who is responsible for regulated development of the Town in terms of the Scheme prepared by it.
Even under the Land Acquisition Act, 1894, the 'person interested' as defined in Section 3(b) is entitled to dispute the amount of compensation and includes a person for whose benefit the land is acquired. In Union of India Vs. Sher Singh (1993) 1 SCC 608, the land was acquired by the State Government for National Security Guards. The Union of India was found to be necessary party, as the land was acquired for its benefit. In Bihar SEB Vs. State of Bihar 1994 Supp.(3) SCC 743, the Hon'ble Supreme Court has held that where the land was acquired for construction of an Election Sub-station and Staff Quarters on public expenditure, the State Electricity Board was a person interested. In Union of India Vs. District Judge, Udhampur (1994) 4 SCC 737, the acquisition of land was under J&K Requisitioning and Acquisition of Immovable Property Act, 1968. It was held that the Requisitioning Authority is a person interested since it is interested in the fixation of proper and just market value or compensation of the land acquired on its behalf as well as to see that the true extent of the land is acquired and is free from encumbrances. It was held to the following effect:
LPA No.44 of 1990 & other connected matters 17
"8. This view was reiterated in Neelagangabai v. State of Karnataka (1990) 3 SCC 617; Krishi Upaj Mandi Samiti v. Ashok Singhal 1991 Supp.(2) SCC 419; Union of India v. Sher Singh (1993) 1 SCC 608 and Bihar State Electricity Board v. State of Bihar Civil Appeal Nos.1577-1600 of 1994 decided on 21.02.1994. Thus it is settled law that the requisitioning authority is a person interested since it is interested in the fixation of the proper and just market value or compensation of the land acquired on its behalf as well as to see that the true extent of the land is acquired and is free from encumbrances.
The participation in the proceedings by the local officers is to enable not only the determination of the proper and just market value or compensation in their presence after laying necessary and relevant evidence but also to secure valid title to the land acquired so that land acquisition officer and the court determine just and proper market value of the lands. It is, therefore, clear that the appellant is a proper and necessary party under Order 1 Rule 10 CPC. It is also the person interested under Section 2(d) of the Act. Accordingly the view of the High Court that the appellants are not interested persons is clearly illegal. It is accordingly set aside."
In a judgment reported as DDA Vs. Bhola Nath Sharma (2011) 2 SCC 54, the land was acquired under the Land Acquisition Act, 1894 at the instance of Delhi Development Authority. The said land was transferred to Delhi Development Authority under Section 22 of the Delhi Development Act. It was held that the Delhi Development Authority was entitled to participate in the proceedings held before the Land Acquisition Collector and the failure to give notice violates the principle of natural justice.
A Full Bench of this court in Indo Swiss Time Ltd. Vs. Umrao, AIR 1981 P&H 213, has taken a view that the person for whose benefit the land is acquired is not entitled to dispute the amount of compensation. Such view stands overruled in five Judges' Bench judgment reported as Hissar Improvement Trust Vs. President, Tribunal Improvement Trust, Hissar 1994(1) RRR 586 (P&H), wherein reliance was placed upon Sher Singh's case (supra).
LPA No.44 of 1990 & other connected matters 18
Since in the present case, the Scheme has been framed and is to be implemented by the Improvement Trust, the Improvement Trust is an aggrieved person entitled to challenge the order passed by the learned Single Judge irrespective of the fact that the State's appeal stands dismissed for having been filed beyond the period of limitation. The dismissal of the State's appeal does not debar the Improvement Trust to dispute the acquisition initiated by it.
On merits
5. Whether the publication of the notification under Section 36 of the Act has to be in the Official Gazette prior in time to the date of publication of the notification in the newspapers?
The argument raised by the writ petitioners is that the notification of acquisition of land ought to have been published in the Government Gazette first and later in the newspapers and therefore, the proceedings not conducted in such manner, are liable to be quashed, is not sustainable. The learned Single Judge has referred to the Full Bench judgment reported in Prof. Jodh Singh and others v. Jullundur Improvement Trust, Jullundur, AIR 1984 Punj 398, and Division Bench of this Court reported as Phagwara Improvement Trust v. The State of Punjab, 1984 PLJ 254, and also a Single Bench judgment of this Court in Rakha Singh & others Vs. State of Haryana through Secretary, PWD (B&R) & others 1988(2) PLR 428.
A Division Bench of this Court in Phagwara Improvement Trust's case (supra) has held that the publication of the notification in the Official Gazette after the last day of the submissions of the objections in terms of the notification published in newspapers is in violation of the provisions of Section 36 of the Act and is not an irregularity. A single judge of this court in Rakha Singh's case (supra) has taken the same view as in Phagwara Improvement Trust's case LPA No.44 of 1990 & other connected matters 19 (Supra) of this court. The aforesaid judgment of this Court in Phagwara Improvement Trust's case (supra) has since been set aside by the Hon'ble Supreme Court in a judgment reported as Phagwara Improvement Trust Vs. The State of Punjab & others 1991(1) PLR 458.
The Hon'ble Supreme Court considered the Full Bench judgment in Prof. Jodh Singh's case (supra) in the Phagwara Improvement Trust's case (supra) and held that the legislative intent of provisions of Section 36 read with Section 38 of the 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 newspaper are to be published, but also individual notices on each of the person affected are to be served. It was held that non publication of the notification in the Official Gazette before the expiry of the date of filing of the objections does not render the publication of the entire development Scheme as illegal and bad. The Division Bench judgment of this Court referred to above and relied upon by the learned Single Judge, was set aside. In the said case, it was found that in Jodh Singh's Case, the objections under Section 38 of the Act, were not considered.
In Bhatinda Improvement Trust, Bhatinda v. Balwant Singh and others 1990 (2) PLR 648, a Division Bench of this court has held that the publication of a notice whether in the Official Gazette or in the newspapers, whichever is earlier is to be treated equivalent to the notification under Section 4 of the Land Acquisition Act and that the notification under Section 42 of the Act has to be within three years of such publication under Section 36 of the Act. It was held that the notification issued in the newspaper is a good publication for the purposes of the Act. The first date of publication of the notice in the newspapers or in the Official Gazette, whichever is earlier, would be starting point of computing of three years within which notification LPA No.44 of 1990 & other connected matters 20 under Section 42 of the Act has to be published. It was held to the following effect:
"6. ......We are afraid we cannot agree with the contention of the learned counsel for the appellant-Trust. Section 36(2)(a) of the Act clearly stipulates that the notice of the publication of the scheme shall be published weekly for three consecutive weeks in the official Gazette as well as in newspaper or newspapers with a statement of the period within which objections will be received. This notice has been equated to a notification under Section 4 of the Land Acquisition Act,- vide para 2 of the Schedule to the Act. That being so, the notice which is issued in a newspaper is a good publication for the purpose of this Act, which publication is equivalent to a notification under Section 4 of the Land Acquisition Act. It is this date i.e. the first date of the publication of the notice in a newspaper or publication of the notification in the official Gazette, whichever is earlier, which would be the starting point for computing three years within which notification under Section 42 of the Act has to be published."
xx xx xx "9...... Section 36(2)(a) itself provides that the publication of the notice has to be in the newspaper as well as in the Official Gazette. So Section 36 itself envisages two types of publication of the notice. One in the newspaper and the other in the Official Gazette. As has been observed above, the publication in the newspaper is not meaningless, and, therefore, the limitation under Section 42 of the Act has to start from the first publication of the notice whether it is in the newspaper or in the Official Gazette, but it would start from the earliest publication." The said judgment was upheld by the Hon'ble Supreme Court in a judgment reported as Bhatinda Improvement Trust Vs. Balwant Singh & others AIR 1992 SC 2214. However, the part of the judgment holding that the Land Acquisition Act, 1894 stands incorporated in the Act by reference has been set aside by Supreme Court in Nagpur Improvement Trust Vs. Vasantrao & others (2002)7 SCC 657. It has been held that the Land Acquisition Act is not incorporated in the Act but it is referential legislation, therefore, the amendments and modifications in the Land Acquisition Act will not be applicable to the acquisitions under the Act. This view was reiterated by LPA No.44 of 1990 & other connected matters 21 the larger Bench in a judgment reported as Girnar Traders Vs. State of Maharashtra (2011) 3 SCC 1.
In Harbans Singh and others v. The State of Punjab and others, 1996(3) PLR 711, a Division Bench of this Court, relied upon Supreme Court judgment in Phagwara Improvement Trust's case, held that as under:-
"17. It may be mentioned that in the said case the notice in the Official Gazette was published after the expiry of the date of filing objections and the publication of the notice in Gazette was after expiry of 30 days from the date of first publication in the newspapers. The Supreme Court upheld the validity of the publication of the notice under Section 36 of the Act.
18. In view of the decision of the Supreme Court in the case of Phagwara Improvement Trust, the position appears to be quite settled. Though the publication of notification under Section 36 (2)(a) of the Act in the newspapers and in the Official Gazette is mandatory but its frequency is not so. We, therefore, find no force in the contention of the learned counsel for the petitioners that there has been no compliance of the provisions of Section 36(2)(a) of the Act, because notice was published in the newspapers prior to the publication of the said notice in the Official Gazette."
Similar publication has been upheld by another Division Bench of this court in a judgment reported as Gian Chand & others Vs. State of Punjab & another 1996(2) PLR 366 and in a judgment reported as Sangrur Improvement Trust, Sangrur Vs. State of Punjab & others 1998(1) PLR 97. It was observed as under:
"9. ...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."
In view of the above judgments of the Division Bench of this Court and that of the Supreme Court in Phagwara Improvement Trust's case and in Balwant Singh's case, the notification in the Official Gazette is not required to be published prior in time to the publication in the LPA No.44 of 1990 & other connected matters 22 newspapers. Thus, the finding recorded by learned judge that the notification is bad for such reasons is not sustainable and is set aside.
6. The period of three years for publication of the notification under Section 42 of the Act is to be computed from which date of the publication of the notification under Section 36 of the Act?
To consider the above question, the relevant extract of the statutory provisions is necessary. Section 36 and 42 of the Act read as under:-
"36. Preparation, publication and transmission of notice, as to improvement schemes, and supply of documents to applicants.-
(1) When a scheme under this Act has been framed, the trust shall prepare a notice stating-
.............
(2) the trust shall-
(a) notwithstanding anything contained in section 78 cause the said notice to be published weekly for three consecutive weeks in the Official Gazette and in a newspaper or newspapers with a statement of the period within which objections will be received, and
(b) .......
xx xx xx
42. Notification of sanction of scheme.- (1) 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 Section 27 have been fulfilled. (2) A notification under sub-section (1) in respect of any scheme shall be conclusive evidence that the scheme has been duly framed and sanctioned. Provided that no notification in respect of sanction of scheme shall be issued after the expiry of three years from the date of first publication of notice relating to that scheme under Section 36."
Section 36(2)(a) of the Act, contemplates publication of the notice of the scheme weekly for three consecutive weeks in the Official Gazette or in the newspaper or newspapers with the statement of the LPA No.44 of 1990 & other connected matters 23 period within which such objections will be received. In fact, the earliest of the first publication either in the newspaper or in the Official Gazette will determine the period during which the notification under Section 42 of the Act is to be published. Each publication under Section 36 of the Act is to be published thrice i.e. publication in two newspapers and the Official Gazette. The publications published are in fact in tune with the statutory requirements. Each of the publication is described as either as first publication, second publication or the third publication. Therefore, the earliest of publication in each set, will be the date of publication of the notification for the purposes of computing the period for publication of the notification under Section 42 of the Act. The first publication in daily 'Ajit' was on 04.02.1984. Therefore the notification under Section 42 of the Act published on 28.1.1987 is within the period of three years from the date of the publication of the first publication. In fact, that is the view taken by the Division Bench of this court in Bhatinda Improvement Trust, (Supra). It was held as under:
"6. .....It is this date i.e. the first date of publication of the notice in a newspaper or publication of the notification in the Official Gazette, whichever is earlier, which would be the starting point for computing three years within which notification under Section 42 of the Act has to be published. If the argument of the learned counsel for the Trust was to be accepted, then the publication of the notice in the newspaper which invites objections to be Scheme from the general public will wholly become redundant."
The said judgment stands affirmed with the dismissal of appeal by the Supreme Court in judgment reported as Bhatinda Improvement Trust v. Balwant Singh & others AIR 1992 SC 2214. (Part of the said judgment on the issue of applicability of the Land Acquisition Act, as mentioned above stands overruled). The Supreme Court in respect of the period of publication observed as under: LPA No.44 of 1990 & other connected matters 24
"8. .....Under sub-clause (1) of clause (2) of the Schedule to the said Act, which we have referred to earlier, the first publication of a notice of any improvement scheme under S. 36 of the said Act, is substituted for and has the same effect as the publication in the Government Gazette of a notification under sub-sec. (1) of S.4 of the Land Acquisition Act. The notice under S. 36 of the said Act is required to be published, inter alia, in a newspaper or newspapers as set out in S. 36(2)(a) of the said Act. In the present case, such a notice was first published in the daily 'Ajit' on May 30, 1977, and hence, the notification under S. 42 of the said Act should have been published on or before May 30, 1980. In fact, the notification under S. 42 of the said Act, admittedly, was published on June 30, 1980, and hence, was clearly beyond time. In these circumstances, the notice under S. 36 of the said Act lapsed on the expiry of three years from May 30, 1977, and no action pursuant to the said notice could be taken thereafter. ..."
Thus, for the purpose of the notification under Section 42 of the Act, the date of first of the notifications published under Section 36 would be the starting period to determine the period of three years. In the present case, the notification under Section 42 of the Act was published on 28.1.1987 and is thus within three years of the first publication, cannot be said to be illegal.
7. Whether the serving of notice within 30 days of publication under Section 36 of the Act is mandatory or directory and/or whether the failure to serve notice will render the acquisition proceedings as void?
To consider the said question, the provisions of Section 38 need to be reproduced. It read as under:
"38. Notice of proposed acquisition of land: - (1) during the thirty days next following the first day on which any notice is published under Section 36 in respect of any scheme under this Act the trust shall serve a notice on
(i) every person whom the trust has reason to believe after due enquiry to be the owner of any immovable property which it is proposed to acquire in executing the scheme.LPA No.44 of 1990 & other connected matters 25
(ii) the occupier (who need not be named) of
such premises as the trust proposes to
acquire in executing the scheme.
(2) Such notice shall -
(a) state that the trust proposes to acquire such
property for the purposes of carrying out a
scheme under this Act, and
(b) require such person, if he objects to such
acquisition, to state his reasons in writing
within a period of sixty days from the service
of the notice.
(3) Every such notice shall be signed by, or by the order of,
the chairman."
The Full Bench of this Court in Prof. Jodh Singh's case (supra) held that the provisions of Section 36 of the Act provided for preparation and publication of notice; Section 38 provided for issuance of notice of to the owner/occupier of land proposed to be acquired and;
Section 42 provided for the notification of its sanction of a given scheme, are mandatory. It was held as under:
"33. Since the given provisions do not merely provide for the framing of the scheme simpliciter but also provide for acquisition of property to enable the execution of the scheme and since no person can be deprived of his property without being heard and one cannot ask for hearing unless he knows that he is being deprived of his property so, by necessary implication a notice of the intention of the authorities of acquiring of given person's property is impliedly necessary to enable him to bring to the notice of the concerned authority his objections against the acquisition of his property. Hence such provisions as provide for notice, raising of objections and personal hearing in support of the objection would be mandatory in character.
xxx xxx xxx
35. In the light of the above, we may observe that so far as the provisions of sections 36, 38 and sub-section (1) of section 40 of the Act are concerned, this Court would be reluctant to subject the said provision to the scrutiny and analysis of the kind in order to judge their mandatory or directory character in view of the pronouncement of their Lordships in regard to the provisions of sections 4 and 5-A of the Land Acquisition Act [sections 38 and 40(1)] which to an extent contain the elements of the provisions of section 4 so far as the question of giving of notice to the affected persons is concerned and of section 5-A of the LPA No.44 of 1990 & other connected matters 26 Land Acquisition Act in so far as the filing of objections and hearing thereof is concerned, which provisions have been held to be mandatory by their Lordships. The relevant decisions of their Lordships holding the provisions of section 4 and section 5-A of Land Acquisition Act as mandatory are :- Khub Chand v. State of Rajasthan, AIR 1967 SC 1074; Narinderjit Singh v. State of U.P., AIR 1973 SC 552, and Mandir Sita Ramji v. Governor of Delhi etc., AIR 1974 SC 1868.
xxx xxx xxx
38. For the reasons aforementioned, we hold that the provision of Section 36, in so far as it provides for publication of the notice as such and not the frequency thereof, is mandatory in character because the scheme is prepared for the convenience and welfare of the inhabitants. They are vitally interested in knowing as to what the scheme is. Therefore, the publication of the scheme to bring the same to their notice is vitally essential to enable them to bring their view point regarding the scheme to the notice of the concerned authorities. Equally essential and mandatory is the requirement of notice of the proposed scheme of acquisition to the landowners and occupiers of the land and building which are proposed to be acquired so that they may put in their objections. ....."
(Emphasis supplied) In Harbans Singh and others v. The State of Punjab and others, 1996(3) PLR 711, a Division Bench of this Court, relied upon Supreme Court judgment in Phagwara Improvement Trust's case, held that the publication of notification under Section 36(2)(a) of the Act in the newspapers and in the Official Gazette is mandatory but its frequency is not so.
In State of Kerala v. Alasserry Mohd., (1978) 2 SCC 386, the Constitutional Bench of the Hon'ble Supreme Court observed:
"7. In the eleventh edition of the well known treatise,--Maxwell on Interpretation of Statutes, are to be found at p. 362 onwards certain guidelines laid down for determining whether a particular Statute or Statutory Rule is imperative or directory. "Where, indeed, the whole aim and object of the legislature would be plainly defeated if the command to do the thing in a particular manner did not imply a prohibition to do it in any other manner, no doubt can be entertained as to the intention"; that is to say, such a requirement would be imperative. At p. 364 LPA No.44 of 1990 & other connected matters 27 it is stated: "The general rule is, that an absolute enactment must be obeyed or fulfilled exactly, but it is sufficient if a directory enactment be obeyed or fulfilled substantially.
8. A few principles may now be extracted with advantage from the seventh edition of Craies on Statute Law:
"When a statute is passed for the purpose of enabling something to be done, and prescribes the formalities which are to attend its performance, those prescribed formalities which are essential to the validity of the thing when done are called imperative or absolute;
but those which are not essential, and may be disregarded without invalidating the thing to be done, are called directory. (P. 62) It is the duty of courts of justice to try to get at the real intention of the legislature by carefully attending to the whole scope of the statute to be construed ... That in each case you must look to the subject-matter, consider the importance of the provision and the relation of that provision to the general object intended to be secured by the Act, and upon a review of the case in that aspect decide whether the enactment is what is called imperative or only directory." (P. 262)"
In a recent judgment, the Constitutional Bench of the Hon'ble Supreme Court in Commissioner of Central Excise, New Delhi v. Hari Chand Shri Gopal, (2011) 1 SCC 236, observed as under :
32. The doctrine of substantial compliance is a judicial invention, equitable in nature, designed to avoid hardship in cases where a party does all that can reasonably be expected of it, but failed or faulted in some minor or inconsequent aspects which cannot be described as the "essence" or the "substance" of the requirements. Like the concept of "reasonableness", the acceptance or otherwise of a plea of "substantial compliance"
depends upon the facts and circumstances of each case and the purpose and object to be achieved and the context of the prerequisites which are essential to achieve the object and purpose of the rule or the regulation. Such a defence cannot be pleaded if a clear statutory prerequisite which effectuates the object and the purpose of the statute has not been met. Certainly, it means that the Court should determine whether the statute has been followed sufficiently so as to carry out the intent for which the statute was enacted and not a mirror image type of strict compliance. Substantial compliance means "actual compliance in respect to the substance essential to every reasonable objective of the statute" and the Court should LPA No.44 of 1990 & other connected matters 28 determine whether the statute has been followed sufficiently so as to carry out the intent of the statute and accomplish the reasonable objectives for which it was passed.
33. A fiscal statute generally seeks to preserve the need to comply strictly with regulatory requirements that are important, especially when a party seeks the benefits of an exemption clause that are important. Substantial compliance with an enactment is insisted, where mandatory and directory requirements are lumped together, for in such a case, if mandatory requirements are complied with, it will be proper to say that the enactment has been substantially complied with notwithstanding the non-compliance of directory requirements. In cases where substantial compliance has been found, there has been actual compliance with the statute, albeit procedurally faulty. The doctrine of substantial compliance seeks to preserve the need to comply strictly with the conditions or requirements that are important to invoke a tax or duty exemption and to forgive non-compliance for either unimportant and tangential requirements or requirements that are so confusingly or incorrectly written that an earnest effort at compliance should be accepted.
34. The test for determining the applicability of the substantial compliance doctrine has been the subject of a myriad of cases and quite often, the critical question to be examined is whether the requirements relate to the "substance" or "essence" of the statute, if so, strict adherence to those requirements is a precondition to give effect to that doctrine. On the other hand, if the requirements are procedural or directory in that they are not of the "essence" of the thing to be done but are given with a view to the orderly conduct of business, they may be fulfilled by substantial, if not strict compliance. In other words, a mere attempted compliance may not be sufficient, but actual compliance with those factors which are considered as essential".
There is absolute prohibition of publication of a notification under Section 42 of the Act beyond three years of the first publication of notification under Section 36 of the Act. Since the prohibition is absolute, the publication of notification within three years is mandatory. Though the serving of notice as provided in Section 38 is mandatory but the time during which the notice is required to be served LPA No.44 of 1990 & other connected matters 29 cannot be said to be mandatory. The time period to serve notice under Section 38 is only directory.
The time to publish notification under Section 42 is relatable to the first publication of notification under Section 36 of the Act. There is no reference to the notice under Section 38 of the Act in Section 42 of the Act. The purpose of the notification under Section 36, and that of notice under Section 38 of the Act is to apprise the land- owners of the purpose of acquisition and providing an opportunity to submit objections to the acquisition. The filing of objections and the consideration thereof is mandatory and not the frequency thereof in view of the judgments mentioned above. What is mandatory is requirement of serving of a notice and granting an opportunity of hearing and not the period during which such objections have to be invited. No penal consequences can be culled down if the notice is not served within 30 days on the reading of Section 38 of the Act nor Section 38 prohibits serving of a notice after 30 days. The mandatory requirement is publication of the notification within the outer limit of three years from the date of publication of the first publication under Section 36 of the Act. Therefore, serving of a notice with 30 days under Section 38 of the Act is directory and failure to serve notice within the said time will not render the acquisition proceedings as void. The substantial compliance of directory provisions is sufficient satisfaction of the requirements of the Act and the purpose of the notices to be served under Section 38 of the Act.
In the present case, the notices under Section 38 were issued after 30 days of vacation of the order of suspension of resolution by the Deputy Commissioner, but still it will not vitiate the acquisition proceedings as the writ petitioners were given opportunity of hearing by serving a notice before publication of notification under Section 42 of the Act.
LPA No.44 of 1990 & other connected matters 30
8. Whether a notice under Section 38 of the Act served on one of the co-owner is sufficient compliance of the requirement of the statute?
Learned counsel for the appellant has pointed out that the learned Single Judge has returned a finding that the notice under Section 38 of the Act was not served upon the writ petitioners and that the land owners remained in possession and thus, the acquisition proceedings are vitiated. It is pointed out that in terms of the interim order passed by this Court, the appellants have filed an affidavit dated 10.8.2009. It has been pointed out that Kulwant Rai son of Kundan Lal, a co-owner was served with a notice under Section 38 of the Act. He filed objections to the notice as well. Therefore, the finding recorded by the learned Single Judge, is not tenable.
Learned counsel for the appellant has also relied upon Section 79(2)(a) of the Act to contend that a notice received by one of the co-owners is sufficient notice to all the co-owners. The relevant provisions read as under:-
"79. Service of notice-
(a) xx xx xx (2) When a notice is required or permitted under this Act to be served upon an owner or occupier, as the case be, of a building or land, it shall not be necessary to name the owner or occupier there, and the service thereof in cases not otherwise specially provided for in this Act shall be effected either:-
(a) by giving or tendering the notice, or sending it by post, to the owner or occupier, or if there be more owners or occupiers than one, to any one of them, or xx xx xx"
The writ petitioners have filed a counter affidavit to the affidavit filed on behalf of the appellant submitting therein that the appellant has coined a new story, which was neither pleaded in the original written statement nor was raised before the learned Single Judge or in the grounds of appeal. But since a specific affidavit has LPA No.44 of 1990 & other connected matters 31 been filed in terms of the order passed by this Court in appeal, the factual position of receipt of a notice by a co-owner having been not disputed, it stands proved that a notice under Section 38 of the Act was received by the co-owner.
Learned counsel for the respondents has relied upon number of judgments i.e. Raghbir Singh Sehrawat Vs. State of Haryana & others, Civil Appeal No.10080-10081 of 2011 decided on 23.11.2011, Hindustan Petroleum Corporation Ltd. Vs. Darius Shapur Chenai & others (2005) 7 SCC 627 and Prof. Jodh Singh's case (supra), to contend that opportunity to file objections and of hearing is mandatory. Since opportunity of hearing was not provided to the land-owners, therefore, the subsequent notification under Section 42 of the Act, stands vitiated. Reliance was also placed upon Prahlad Singh & others Vs. Union of India & others (2011) 5 SCC 386 and Banda Development authority, Banda Vs. Moti Lal Agarwal (2011)5 SCC 394, to contend that the land-owners have a right to dispute the acquisition, as possession of the land has not been taken by the Improvement Trust.
A Division Bench of this Court in Baldev Singh and others v. State of Punjab, 1990 PLJ 168 has negated the contention that notice should have been served individually on the petitioners and the service upon one of the co-sharers was sufficient service upon the remaining co-sharers. This Court held that if there are more owners than one, service of notice upon one or any of the co-owners is sufficient for service upon all the co-owners. In Teja Singh and others v. State of Punjab and another, (1995)4 SCC 540, the Hon'ble Supreme Court has held as under:-
"8.....It would thus be clear that the legislature itself being aware of the existence of co-owners or occupier, authorized the Trust to have the notice given, tendered or served on one owner or occupier and such service of notice is legal and valid notice. Even otherwise on principle of law also, it is common knowledge that every co-owner may not be in occupation of the land or may not be cultivating the land or be in actual possession. He may LPA No.44 of 1990 & other connected matters 32 be residing elsewhere due to pursuit of education or professional job etc. So, they may not be available for service. Legislature being cognizant to this situation, has taken care to see that if more than one owner or occupier have interest in the land and the land belonging to co-owners or occupiers is sought to be acquired, service on one, is taken as service on all the co- owners."
The notice is deemed to serve on the land-owners in terms of Section 79 of the Act, when actual notice was served upon one of the land-owners. Therefore, the land-owners cannot be permitted to urge that there is denial of opportunity of hearing or violation of principles of natural justice.
Since we have examined the contentions of the parties on merits, the fact whether possession has been taken or not, is wholly immaterial for the purposes of present set of cases.
9. Whether the order passed by the Deputy Commissioner suspending resolution of the Trust renders the publication of the notification under Section 36 of the Act during such period, as vitiated and consequently the entire proceedings are liable to be set aside?
Learned Single Judge has allowed the writ petition on the ground that since no specific order setting aside the order of Deputy Commissioner was passed by the State Government, therefore, in view of the order passed by the Deputy Commissioner, the acquisition proceedings cannot be sustained in law.
The power to suspend a resolution of the Improvement Trust is conferred on the Deputy Commissioner under Section 72-B of the Act, whereas the power to annul a resolution is vested with the State Government under Section 72-E of the Act. The Deputy Commissioner has been given power to prevent eminent waste or damage to the Trust fund or property pending decision of the State LPA No.44 of 1990 & other connected matters 33 Government. Such intention is evident from the bare perusal of Section 72-B of the Act and the fact that the State Government has to be immediately apprised of its action by the Deputy Commissioner under Section 72-D of the Act. The relevant provisions from the Act reads as under:-
"72-B. Power to suspend any resolution or order of trust.- The Deputy Commissioner may by order in writing, suspend the execution of any resolution or order of a trust or prohibit the doing of any act which is about to be done, or is being done in pursuance of or under cover of this Act or in pursuance of any sanction or permission granted by the trust in the exercise of its power under the Act, if, in his opinion, the resolution, order or act is in excess of the power conferred by law or contrary to the interests of the public or likely to cause waste or damage of trust funds or property, or the execution of the resolution or order of the doing of the act, is likely to lead to a breach of peace to encourage lawlessness or to cause injury or annoyance to the public or to any class or body of persons.
xx xx xx
72-D. Action of Deputy Commissioner to be immediately
reported.- When the Deputy Commissioner makes any order
under section 72-B or Section 72-C he shall forthwith forward to the State Government a copy thereof with a statement of reasons for making it, and with such explanation, if any, as the trust may wish to offer and the State Government may thereupon confirm, modify or rescind the order.
xx xx xx
72-E Power of State Government and its officers over trust.- (1)
The State Government and Deputy Commissioners acting under the orders of the State Government, shall be bound to require that the proceedings of trusts shall be in conformity with law and with the rules in force under any enactment for the time being applicable to Punjab generally or the areas over which the trusts have authority.
(2) The State Government may exercise all powers necessary for the performance of this duty and may among other things, by order in writing annul or modify any proceeding which it may consider not to be in conformity with law or with such rules as aforesaid, or for the reasons, which would in its opinion justify an order by the Deputy Commissioner under Section 72-B. (3) The Deputy Commissioner may, within his jurisdiction for the same purpose, exercise such powers as may be conferred LPA No.44 of 1990 & other connected matters 34 upon him by rules made in this behalf by the State Government."
Learned counsel for the appellant has pointed out that the order passed by the Deputy Commissioner suspending the resolution was revoked on 18.04.1984 by the Deputy Commissioner himself, as is asserted in the written statements in some cases. The learned counsel for the respondents could not dispute the said fact. Therefore, we have no hesitation to hold that the resolution of the Trust remained suspended in terms of the order passed by the Deputy Commissioner from 30.1.1984 till 18.04.1984.
Learned counsel for the land-owners have relied upon the judgment of Hon'ble Supreme Court in Subhash Chandra & others Vs. Municipal Corporation of Delhi & another AIR 1965 SC 1275, whereby Municipal corporation passed a resolution though the same was prohibited by the Chief Commissioner under Section 232 of the Punjab Municipal Act, 1911. It was held to the following effect:
"10. ....It is true that the section did not enable the Chief Commissioner to prohibit a Committee from passing a particular kind of resolution, but it certainly empowered him to prohibit the Committee from doing an act which was about to be done. Here, the order of the Chief Commissioner to which we have adverted, in fact, prohibited the Committee from, among other things, granting special pay or any other pecuniary advantage to any of its employees. What was thus expressly prohibited was the doing of an act but not passing of a resolution. Even so, we think that when the doing of an act was prohibited the Committee ceased to have any power to do that act and resolution passed by it to the effect that the act be done, can have no legal validity."
However, the said judgment is not applicable to the facts of the present case, as the order passed by the Chief Commissioner was not vacated and continued to be in force when the jurisdiction of the Court was invoked. But in the present case, writ jurisdiction has been invoked after the order of suspension of resolution was vacated by the LPA No.44 of 1990 & other connected matters 35 learned Deputy Commissioner itself. Therefore, the said judgment does not advance the argument raised by the learned counsel for the respondent.
Mr. Mittal relies upon N. Krishnamachari v. The Managing Director, APSRTC, Hyderabad & Others, (1994)6 SCC 74, Om Parkash v. Union of India, (2010) 4 SCC 17 and Manohar Lal (D) by LRs v. Urgasen (D) by LRs & Others, (2010)11 SCC 557, to contend that the notification under Section 36 of the Act has been published when the resolution of the Trust in respect of scheme was under suspension. We find that all the three judgments are not applicable to the facts of the present case for the reason though all the cases pertain to the stay by the Court at the time of publication of the notification under Section 6 of the Act. But in the present case, the resolution was suspended by the Deputy Commissioner in exercise of the statutory powers conferred under Section 72-B of the Act, which is not the same as power exercised by the Court to grant stay. While suspending resolution, the Deputy Commissioner is not exercising either the judicial or quasi judicial powers but statutory powers to prevent waste of the public property and or to seek compliance of the provisions of the Act. Such powers are in no way analogous to the jurisdiction exercised by a Court. It is also a case, where no other step was taken by the Improvement Trust except publication of the notification under Section 36 of the Act after resolution was suspended. All other action has been taken by the Trust after suspension of the resolution was revoked. Therefore, mere publication of the notification under Section 36 of the Act, when the resolution was suspended is at best a case of irregularity, not causing any prejudice to any of the parties. Though the publication of the notification under Section 36 of the Act is mandatory, but its frequency is not as held by Full Bench of this Court in Prof. Jodh Singh's case (supra). Still further, the purpose of notification under Section 36 of the Act is to invite objections from the land-owners. Though some of LPA No.44 of 1990 & other connected matters 36 the land-owners, who have invoked the jurisdiction of this Court have not filed the objections personally but their co-owners have filed the same. Therefore, the judgments referred to by Mr. Mittal cannot be made basis to return a finding that the publication of notification under Section 36 of the Act is void.
In view of the above, we find that the order passed by the learned Single Judge is not sustainable in law. Consequently, the same is set aside. As a consequence thereof, LPA's No.44 to 50 of 1990 are allowed and the writ petitions are dismissed with no order as to costs. Second Set of cases In the second set of cases, a notification under Section 36 of the Act was published on 30.08.1979 intending to acquire 27.21 acres of land. The said notification was quashed by this Court in a writ petition vide order dated 03.12.1982. The writ petitioners have asserted that they have raised construction on their plots after obtaining sanction from the Municipal Committee thereafter. A resolution was passed by the Improvement Trust on 06.01.1984 to revive the old scheme, but this order was suspended by the Deputy Commissioner on 30.01.1984 later revoked on 18.4.1984. The notices under Section 38 of the Act were issued on 06.12.1984. Thereafter, the notification dated 05.03.1987 under Section 42 of the Act was published in the Punjab Government Gazettee on 06.03.1987 (Annexure P-7). The Award was announced on 19.02.1989 and possession was taken on 09.05.1989 after paying compensation of Rs.54,18,097.36. The notifications under Section 36 of the Act were published in the following manner:-
Ajit Daily Jalandhar 4.2.1984 11.2.1984 18.2.1984 The Tribune, Chandigarh 10.2.1984 17.2.1984 24.2.1984 Government Gazette 24.2.1984 2.3.1984 9.3.1984 LPA No.44 of 1990 & other connected matters 37
10. Whether, the period during which, the resolution of the trust remained suspended is to be excluded while determining the period of three years required for publication of the Notification under Section 42 of the Act?
The argument raised by the learned counsel for the land- owners is that the notification published on 06.03.1987 is beyond three years of the date of first publication of notification under Section 36 of the Act. Therefore, such notification published is not valid and that the Improvement Trust cannot continue with the acquisition on the basis of such invalid and illegal publication of notification after the expiry of period prescribed. While deciding first set of cases, it has been held that the first date of publication in either in the newspapers or in the Official Gazettee of the first publication is relevant to determine the period of three years for publication of notification under Section 42 of the Act. Keeping in view the said principle, publication of notification on 06.03.1987 is beyond the period prescribed.
However, learned counsel for the appellant(s) has argued that the period, during which the resolution of Improvement Trust remained suspended by the orders of the learned Deputy Commissioner, is to be excluded while computing the period of three years for publication of notification under Section 42 of the Act. The order of the Deputy Commissioner suspending the resolution came to be vacated on 18.4.1984; therefore, the said period i.e. from 30.01.1984 to 18.4.1984 is to be excluded for determining the period of three years is the question, which requires determination. Mr. Sagar, learned Counsel for the Improvement Trust also pointed out that except land- owners in LPA No.466 of 1990, all other land-owners have received compensation and also sought references to seek enhanced compensation. Therefore, the writ petitions by them challenging the acquisition proceedings no longer survive.
LPA No.44 of 1990 & other connected matters 38
Learned counsel for the respondents has argued that the publication was carried out under Section 36 of the Act even when the Deputy Commissioner had suspended the resolution, therefore, the act of the publication of notification under Section 36 of the Act is illegal. It is argued that the period of stay granted by the Court alone can be excluded in terms of Explanation 1 to Section 6(1) of the Land Acquisition Act, 1894. The Deputy Commissioner is not a Court. Therefore, the period during which the resolution of the Trust remained suspended cannot be excluded from computing the period of publication of the notification under Section 42 of the Act even though the provisions of the Land Acquisition Act are not applicable to the acquisition under the Act.
The learned counsel for the appellants has vehemently argued that the notification under Section 36 was sent for publication prior to receipt of the order of suspension of resolution. Still further, the suspension of resolution by the Deputy Commissioner is not the same as stay granted by a Court. Therefore, the analogy given by learned counsel for the landowners has no application to the facts of the present case. In any case, the publication during the period of suspension of resolution is at the most an act of irregularity and thus will not affect the acquisition proceedings in terms of Section 101 (e) of the Act.
We do not find merit in the arguments of learned Counsel for the Land-owners. The Deputy Commissioner exercises its statutory power of suspension of the resolution under Section 72-B of the Act. Though the publication was carried out after the resolution of the Trust was suspended, but the Improvement Trust could not act in furtherance of the Notification issued under Section 36 of the Act, till such time, the resolution remained suspended. The disability to proceed with the acquisition proceedings ceased with the revocation of suspension by the Deputy Commissioner.
LPA No.44 of 1990 & other connected matters 39
In M/s B.P.L.Ltd, and others Vs. R. Sudhakar and others AIR 2004 SC 3606, a question arose whether permission of the Labour Court was necessary in view of an industrial dispute pending before the Labour Court in terms of Section 33(2)(b) of the Industrial Disputes Act. In the aforesaid case, an order of reference for adjudication of disputes by the Industrial Tribunal was stayed by the High Court. During the period of stay, the services of the workman were terminated without seeking approval of the Labour Court. It was held that order of stay of the reference amounts to as if no reference was ever made. It was held to the following effect:
"12. ....The Tribunal gets jurisdiction only on reference made by the Government. When the operation of the very order of reference was stayed the question of dispute pending before the Tribunal did not arise inasmuch as the reference order itself stood suspended. So long as stay order was operating, it could not be said that the dispute was pending before the Tribunal. Admittedly, when workmen were dismissed from service stay order was operating. Learned Single Judge as well as the Division Bench of the High Court have proceeded on wrong footing relying upon the decision of this Court in Shri Chamundi Mopeds Ltd. (supra), that the order of reference was not wiped out by virtue of staying of the operation of order of reference. It is not the question as to whether the order of reference is wiped out but the question is what is the effect of the staying of the operation of order of reference itself. Once the operation of order of reference is stayed there is no question of dispute pending before the Tribunal so long as the said order remains in operation because reference precedes dispute. To put it differently, dispute could come up for adjudication by the Tribunal pursuant to the order of reference only. If in a pending proceeding operation of order is stayed pending disposal of the main matter such as an appeal or revision, obviously the impugned order does not get quashed or wiped out. It only remains suspended. ...."
The order of suspension of resolution led to total cessation of the action in pursuance of the notification published. It was not an order in legal proceedings wherein an order passed by the judicial or quasi judicial authority as was the situation in Shri Chamundi Mopeds LPA No.44 of 1990 & other connected matters 40 Ltd. (supra) was stayed. But in the present case by virtue of the order of suspension, the Improvement Trust could not proceed ahead with the publication process in respect of acquisition including serving of notice under Section 38 of the Act; consideration of objections and; publication of notification under Section 42 of the Act. The effect of an order of suspension of the resolution was that of hiatus in the acquisition proceedings. Therefore, if the period of suspension of the resolution is excluded, the notification published under Section 42 of the Act is within the period of limitation. It is categorical stand of the Improvement Trust that the order suspending the resolution came to be communicated after the advertisements were released for publication in the newspapers or the Official Gazette. Therefore, the period during which the resolution was suspended is required to be excluded for determining the period of publication of the notification under Section 42 of the Act.
In view of the findings recorded, we observe that the order of the learned Single judge is not sustainable. The same is set aside and the appeals preferred by the Improvement Trust are allowed.
In the following LPAs, additional arguments were addressed, which are peculiar to those cases. Such arguments are dealt with in the following manner:
LPA No.466 of 1990
In the above mentioned appeal, an argument was raised that notice under Section 36 of the Act was not served upon the owners.
It is argued by Mr. Jain that the affidavit of the Chairman of the Improvement Trust dated 14.07.2009 is not correct, as the notice is said to have been served upon Sukhdev Sharma, Manager of Pukhraj Theater belonging to Gurcharan Singh. It is wrongly mentioned that objections were filed on 20.02.1985, in fact the objections were filed by LPA No.44 of 1990 & other connected matters 41 Gurcharan Singh son of Kaur Singh, whereas the writ petitioner is Gurcharan Singh son of Rattan Singh.
Mr. Sagar has produced the records and fairly admitted that there is mistake in the affidavit filed by the Chairman of the Improvement Trust and reference was made to the objections filed by Gurcharan Singh son of Kaur Singh as that of the respondent.
However, it is pointed out that Sukhdev Sharma was the Manager of Pukhraj Theater owned by Gurcharan Singh. Sukhdev Sharma has received notice dated 06.12.1984 meant for Gurcharan Singh son of Kaur Singh on 01.07.1985. Said Sukhdev Sharma was owner of 500 square yards plot as well and has filed objections in his individual capacity as well. Said Sukhdev Sharma had appeared before the Land Acquisition Collector in support of the objections filed for him and for Gurcharan Singh, which is evident from the original record produced before the Court, photocopy of which has been placed on record. It shows that on 04.08.1987, Sukhdev Sharma has appeared for himself, when his presence was marked at Sr. No.1 and for Gurcharan Singh son of Rattan Singh, when he signed as Manager at Sr.No.2. Prior thereto, Sukhdev Sharma had filed objections on the letter head of Pukhraj Theater on 05.07.1985 in respect of a plot purchased by him from Karam Singh. Thus, in terms of Section 79 of the Act, the notice under Section 38 of the Act is proved to be served in terms of Clause (b) thereof upon a servant of the family. Therefore, it cannot be said that there is any non-compliance of the provisions of Section 38 of the Act.LPA No.628 of 1996
The learned Single Judge has dismissed the writ petition holding that the notification under Section 41 of the Act was published on 05.03.1987, which is within three years of publication of the notification on 09.03.1984. The learned Single Judge has also recorded LPA No.44 of 1990 & other connected matters 42 that the members of the society have received the amount of compensation and also filed an application under Section 18 of the Land Acquisition Act has been filed on 29.03.1989 for claiming enhanced compensation. The Land Acquisition Collector has deposited the amount of compensation i.e. Rs.54,18,097.36 and the possession of the land has been taken on 09.05.1989. Thus, the Court found that the writ petitioner has sought to challenge the acquisition after long lapse. We do not find that such findings require any intervention. The appeal of the landowner is dismissed.
Contempt Petitions In COCP Nos.291 and 373 of 1994, the grievance of the petitioners is that they have been dispossessed in violation of the order of stay of dispossession granted by this Court on 22.02.1989 in CWP No.2238 of 1998, whereas in COCP No.1663 of 2007, the petitioners have alleged violation of order dated 22.03.1990 passed by this Court in LPA No.467 of 1990 filed by the Improvement Trust, wherein it was ordered that the respondents will not be dispossessed, if they are already in possession. The grievance of the petitioners is that even though there was order of stay, but still the petitioners have been dispossessed. In view of the order of dismissal of the writ petitions, no further orders are called for in these contempt petitions.
To conclude, all the appeals filed by the Improvement Trust are accepted and that the appeal, writ petitions, cross objections as well as contempt petitions filed by the land owners are dismissed with no order as to costs.
(HEMANT GUPTA) JUDGE (A.N.JINDAL) JUDGE LPA No.44 of 1990 & other connected matters 43 2nd April, 2012 ds/Vimal