Full Judgment Text
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PETITIONER:
PHAGWARA IMPROVEMENT TRUST
Vs.
RESPONDENT:
STATE OF PUNJAB AND ORS.
DATE OF JUDGMENT10/10/1990
BENCH:
RAY, B.C. (J)
BENCH:
RAY, B.C. (J)
KASLIWAL, N.M. (J)
CITATION:
1990 SCR Supl. (2) 227 1991 SCC Supl. (2) 753
JT 1990 (4) 184 1990 SCALE (2)785
ACT:
Punjab Town Improvement Trust Act, 1922: Sections 24,
28, 36, 38 and 101--Acquisition of lands Individual no-
tices--Service 0n affected persons--Necessity of--Notifica-
tion in Government Gazette--Non-publication of before the
last date for filing objections--Whether renders the publi-
cation of entire scheme illegal and bad.
HEADNOTE:
The appellant Trust prepared a development scheme under
the provisions of the Punjab Town Improvement Trust Act,
1922 covering certain lands including that of the respond-
ents. Notice inviting objections was published in a dally
Newspaper on 9th, 16th and 23rd April, 1976. It was also
published in the Punjab Government Gazette on the 7th, 14th
and 21st May, 1976. The last date for filing objections was
5th May, 1976. Notices were also served on each person whose
land was to be acquired in accordance with Section 36 of the
Act. After completion of the acquisition formalities, noti-
fication under section 42 of the Act was published on 26th
March, 1979.
Respondent No. 2 and others challenged the scheme noti-
fied under the Act by way of Writ Petitions on the ground
that they could not file objections by 5th May, 1976 since
the notification was published in the Gazette only thereaf-
ter. The High Court allowed the Writ Petitions and quashed
the notification sanctioning the scheme. However, it ob-
served that the appellant may publish the scheme again
either amended or unamended under section 36 of the Act and
proceed further in accordance with law. Against the said
order, Letters Patent Appeals were flied, which were dis-
missed by the Division Bench. Appellant has preferred these
appeals by special leave.
On behalf of the appellant, it was mainly contended that
infirmity, if any, stemming form the non-consideration of
the objections and the sanction of the scheme by the Govern-
ment in ignorance of the fact stood cured by the provisions
of S. 42(2) of the Act. It was also contended that since
Respondent No. 2 and others had flied objections in response
to individual notices, they are debarred from raising objec-
tions against the proposed improvement scheme.
228
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On behalf of Respondents if was inter alia contended
that due to non-publication of the scheme in the Government
Gazette before the expiry of the period of filing objections
against the proposed scheme, the valuable right of the
respondents to file objections against the scheme has been
done away with, contrary to the mandatory provision con-
tained in section 36 of the Act.
Allowing the appeals, this Court,
HELD: 1. It is incomprehensible to say that non-observ-
ance of provisions of Section 36 of the Punjab Town Improve-
ment Trust Act, 1922 by not publishing the notification in
the Government Gazette before the expiry of the date for
filing the objections renders the publication of the entire
development scheme illegal and bad. [234A]
2. The legislative intent of provision 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
failing 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 with details of the
plots of land failing within the scheme and proposed to be
acquired with a view to giving them adequate opportunity to
file objections both against the scheme as well as against
the proposed acquisition of their lands. [233G-H]
3. In the instant case, the development scheme was
prepared by the appellant-Trust, and was notified in accord-
ance with the provisions of Section 36 of the Act. In so far
as the publication of the scheme in the newspaper ’Tribune’
in three consecutive weeks in April, 1976 inviting objec-
tions thereto till 5th May, 1976 is quite in accordance with
the provisions of the said section. The Gazette Notification
published in three consecutive weeks was however, made after
expiry of the period of filing objections against this
scheme. Admittedly individual notices under section 38 of
the said Act were duly served on all the owners and occupi-
ers of the land falling within the said scheme and purported
to be acquired and respondent No. 2 and others admittedly
filed objections against the proposed acquisition of their
land. The said objections were duly considered after hearing
the respondent No. 2 and others and notice was issued sanc-
tioning the scheme by the State Government. In these circum-
stances, it does not lie in the mouth of respondent No. 2
and others to challenge the scheme on the mere plea that the
Gazette Notification was not duly published. [233C-F]
229
Prof. Jodh Singh & Ors. v. Jullundur Improvement Trust,
Jullundur and Ors., AIR 1984 Punjab 398, distinguished.
[This Court set aside the decision of the Single Judge
as well as that of the Division Bench of the High Court.]
[234D]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 5036-39
of 1989.
From the Judgment and Order dated 22.10.1984 of the
Punjab and Haryana High Court in L.P.A. Nos. 696,695,694 and
697 of 1982.
G.L. Sanghi, Dhruv Mehta (NP), Aman Vachher and S.K.
Mehta for the Appellant.
V.C. Mahajan, Tapash Ray, A. Minocha, K.R. Nagaraja and
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R.S. Sodhi for the Respondents.
The Judgment of the Court was delivered by
RAY, J. These appeals on special leave are directed
against the judgment and order passed by the Division Bench
of the High Court of Punjab and Haryana in Letters Patent
Appeal Nos. 694 to 697 of 1982 dismissing the appeals with
costs. The salient facts out of which these appeals have
arisen, are as follows:
The appellant Trust prepared a development scheme under
section 24 read with section 28 of the Punjab Town Improve-
ment Trust Act, 1922 (hereinafter referred to as the Act) in
relation to an area of about 60 acres of land at Palani
Road. The lands of the respondents fell within the said
area. On April 9, 1976 a notice under Section 36 of the Act
was published in daily Tribune inviting objections till 5th
May, 1976. This notice was published in the three consecu-
tive weeks of the said newspaper dated 9th April, 15th April
and 23rd April, 1976. The very notice of the said scheme was
also published under section 36 of the said Act in the
Punjab Government Gazette on three consecutive weeks i.e.
7th May, 14th May and 21st May, 1976 inviting objections
till May 5, 1976 against the scheme framed. In accordance
with the provisions of Section 38 of the said Act the Trust
also served notice on every person who was occupier or owner
of any immoveable property falling within the area proposed
to be acquired in executing the scheme within 30 days from
the date of publication of the notice under section 36, in
order to enable the owners and occupiers of such pre-
230
mises to file objections to such acquisition and to state
their reasoning in writing within a period of 60 days of
service of the notice. After completion of the acquisition
formalities, a notification under section 42 of the said Act
was published on March 26, 1979. The respondent No. 2 and
ors. assailed the appellant’s scheme notified under the Act
in CWP No. 2561 of 1979 and CWP Nos. 4075, 36.15, 3654 of
1981 on the ground that they could not file objections
against the scheme in terms of Section 36 of the Act till
5th May; 1976 as the notification was published in the
Punjab Government Gazette on 7th May, 14th May and 21st May,
1976. These writ petitions were allowed by order dated 25th
February, 1982 and the sanctioned scheme notified under
section 42 of the Act was quashed. It was also mentioned in
the said order that the appellant may, however, publish the
scheme again either amended or unamended under section 36 of
the said Act and proceed further in the matter in accordance
with law. It is against this order the L.F.A. No. 694 to 697
of 1982 were filed. The Division Bench of the High Court
affirmed the judgment and order of the learned single Judge
and held that the provisions contained in Section 36 of the
Act were mandatory and as it had not been complied with in
the present cases, the illegality of non-compliance of the
mandatory provisions contained in Section 36 would not stand
cured under Section 101 (1)(d) of the Act. Hence the Letters
Patent Appeals were dismissed.
Against this judgment and order the instant appeals on
special leave have been filed in this Court. Mr. Mahajan,
learned counsel appearing on behalf of the respondent No. 2
and ors. has very strenuously contended that the provisions
of Section 36 of the said Act are mandatory inasmuch as it
provides for publication of the notice as to the framing of
the scheme under the Act in three consecutive weeks in the
official Gazette as well as in the newspaper with a state-
ment inviting objections. Though the notice was duly pub-
lished in the newspaper Tribune’ for three consecutive weeks
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on 9th, 16th and 23rd April, 1976 notifying the date for
filing objections till 5th May, 1976 yet the notification
that was published in the Punjab Government Gazette for
three consecutive weeks was admittedly after the expiry of
period of filing objections i.e. 5th May, 1976. It has,
therefore, been contended by Mr. Mahajan that due to non-
publication of the scheme in the Government Gazette before
the expiry of the period of filing objections against the
proposed scheme, the valuable right of the respondents to
file objections against the scheme has been done away with.
As such the publication of the scheme was rightly quashed by
the courts below as this mandatory requirement had not been
complied with by the State. In this connection, he has
referred to the case of Prof. Jodh
231
Singh & Ors. v. Jullundur Improvement Trust, Jullundur
and Ors., AIR 1984 Punjab 398. This case was decided by the
full bench of the High Court of Punjab and Haryana as to
whether issuance of a notification under sub-section (1) of
Section 42 of the Punjab Town Improvement Act, 1922, would
bar a challenge to the validity of the scheme or the govern-
mental sanction thereto for any reason including the reason
that the scheme had been framed and sanctioned without
compliance of the mandatory provisions particularly those of
Sections 36, 38 and sub-section (1) of Section 40 of the
Act. It was held that:
"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 a given person’s property is im-
pliedly necessary to enable him to bring to the notice of
the concerned authority his objections against the, acqui-
sition of his property. Hence such provisions as provide for
notice, raising of objections and personal hearing in sup-
port of the objection would be mandatory in character."
In that case a notice under section 38 of the Act was
issued on the petitioner who submitted objections in time.
In the return filed on behalf of the Trust it was admitted
that due to over-sight, the petitioners could not be called
for hearing along with other objectors as the objections
filed by the petitioners had inadvertently got placed in
some other file and that for the same reason their objec-
tions were neither considered by the Trust nor forwarded to
the State Government along with the summary of the objec-
tions submitted at the time of sanction for the said scheme,
It was contended on behalf of the Trust that the infirmity,
if any, stemming from the non-consideration by the Trust of
the objections filed by the petitioners and sanction of the
scheme by the Government in ignorance of the said fact stood
cured by the provisions of sub-section (2) of Section 42 of
the Act. It was in that context the above observation was
made by the full bench.
Mr. Mahajan next contended that-though admittedly no-
tices under section 33 of the said Act were issued on the
respondent No. 2 and others who are either owners or occupi-
ers of the lands falling within the improvement scheme of
the appellant and the respondent
232
No. 2 and others had filed objections against the proposed
acquisition of their lands, yet on the basis of the said
individual notices issued under section 38 of the said Act,
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the respondent No. 2 and others are debarred from raising
objections against the proposed improvement scheme. It is
further submitted that under Section 38 the owners and
occupiers of the land affected by the said scheme may merely
object to the proposed acquisition of their lands but they
cannot file objections against the scheme published. The
respondent No. 2 and others are therefore, deprived of their
right to file objections against the scheme as provided in
Section 36 of the said Act and so in view of the noncompli-
ance of the provisions of Section 36 of the said Act by the
State Government, the development scheme cannot be enforced
merely because the State Government notified the sanction of
the scheme under section 42 of the Act.
The learned counsel appearing on behalf of the appellant
on the other hand, contended that in compliance of the
provisions of Section 36 of the said Act a notice regarding
the framing of the development scheme was published in the
newspaper ’Tribune’ for three consecutive weeks i.e. on 9th,
16th and 23rd April, 1976 inviting objections till 6th May,
1976. It is only in the Punjab Government Gazette that the
notification was published on 7th, 14th and 21st May, 1976
inviting objections till 5th May, 1976 i.e. the notification
was made in the Punjab Government Gazette after the period
for filing objections had expired. It has also been contend-
ed that individual notices under section 38 of the said Act
were served on the owners and occupiers of the immovable
property falling under the development scheme intimating
them about the acquisition of the land with particulars of
the lands failing within the said scheme and inviting their
objections to be filed within a period of 60 days from the
date of service of the notice. It has also been submitted
that the respondent No. 2 and others i.e. the owners of the
lands duly submitted their objections against the acquisi-
tion of the land as well as against the proposed scheme and
the same were heard and considered by the prescribed author-
ity. After the hearing of the objections, a notification was
made by the State Government sanctioning the said scheme and
also that this Trust shall proceed forthwith to execute the
said scheme. It has, therefore, been submitted that in these
circumstances, the objections raised by the counsel for the
respondent No. 2 and others are wholly unsustainable
being devoid of any merit.
It is convenient to mention herein that the award deter-
mining the compensation was passed in 1980 and the compensa-
tion to the tune
233
of Rs.32 lakhs had already been paid. A sum of
Rs.2,30,465.08 had been spent for the construction of roads
and foot paths. Another sum of Rs. 1, 12,2 17.24 had been
spent for lighting of the streets. Another sum of Rs.3 lakhs
had been paid to the Punjab Water Supply and Sewerage Board
for sewerage purposes. Thus, a sum of Rs.38,42,682.35 had
already been spent for implementation of the scheme. Several
plots had already been sold in open auction. The reference
under section 18 of the Act is also pending. In this context
we are to consider the contention raised by the learned
counsels for the respondent No. 2 and others. Under section
24 and 28 of the Punjab Town Improvement Act, 1922, the
impugned development scheme was prepared by the appellant-
Trust. The scheme was notified as has been referred herein-
before in accordance with the provisions of Section 36 of
the Act. In so far as the publication of the scheme in the
newspaper ’Tribune’ in three consecutive weeks in April,
1976 inviting objections thereto till 5th May, 1976 is quite
in accordance with the provisions of the said section. The
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Gazette Notification published in three consecutive weeks
was however, made after expiry of the period of filing
objections against this scheme. This has been the bone of
contention on behalf of the respondent No. 2 and others that
this resulted in violation of the provisions of section 36
of the Act as their right to file objections against the
scheme was set at naught. This contention in our considered
opinion is totally devoid of merit inasmuch as admittedly
individual notices under section 38 of the said Act were
duly served on all the owners and occupiers of the land
falling within the said scheme and purported to be acquired
and the respondent No. 2 and others admittedly filed objec-
tions against the proposed acquisition of their land. The
said objections were duly considered after hearing the
respondent No. 2 and others and notice was issued sanction-
ing the scheme by the State Government. In these circum-
stances, it does not lie in the mouth of respondent No. 2
and others to challenge the scheme on the mere plea that the
Gazette Notification was not duly published. The legislative
intent of provision of section 36 read with section 38 of
the said Act is to afford reasonable opportunity to the
owners and occupiers affected by the proposed scheme to file
objections not only against the scheme but also against the
acquisition of their lands falling within the scheme and to
achieve this purpose not only notifications in the Govern-
ment Gazette and newspaper are to be published but also
individual notices on each of the person affected are to be
served with details of the plots of land failing within the
scheme and proposed to be acquired with a view to giving
them adequate opportunity to file objections both against
the scheme as well as against the proposed acquisition of
their lands. It is, therefore, incomprehensible to contend
234
that non-observance of provisions of Section 36 of the
said Act by not publishing the notification in the Govern-
ment Gazette before the expiry of the date for filing the
objections renders the publication of the entire development
scheme illegal and bad. The above contention, in our consid-
ered opinion, is not at all sustainable on the simple
ground that the respondent No. 2 and others were duly served
with the notices under section 38 and they pursuant to that
notice duly filed their objections against the acquisition
as well as the scheme. The decision of the full bench re-
ported in Prof. Jodh Singh and Ors. v. Jullundur Improvement
Trust, Jullundur & Ors. (supra) is not applicable to this
case inasmuch as in that case the objections filed under
section 38 of the said Act having been misplaced were not at
all considered and thereafter the Government issued a noti-
fication under section 42 of the said Act giving sanction to
the scheme itself. In that view of the matter, the said
decision has no application to the instant case.
In these circumstances, considering from all aspects
we hold that the decision of the courts below is wholly
untenable in law and as such they are liable to be set
aside. We, therefore, set aside the decision of the learned
single Judge as well as to the Division Bench of the High
Court of Punjab and Haryana and allow the appeal setting
aside the orders of the courts below. There will, however,
be no order as to costs.
G.N. Appeals allowed.
235