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PETITIONER: IMPROVEMENT TRUSTS, MOGA

       Vs.

RESPONDENT: MANCHANDA SOAP WORKS & ORS.

DATE OF JUDGMENT:       16/04/1996

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. BHARUCHA S.P. (J)

CITATION:  1996 AIR 2019            JT 1996 (5)    20  1996 SCALE  (4)171

ACT:

HEADNOTE:

JUDGMENT:                             WITH    C.A.Nos. 19/91, 20/91, 21/91, 22/91, 8863/94 & 8861/94                          O R D E R      This appeal  by special  leave arises from the judgment of a  Division Bench of the Punjab & Haryana High Court made on October 3, 1988 in CWP No. 1804 of 1986. The facts fairly are not in dispute.      The  appellant  had  initiated  a  truck  scheme  under Section  36   of  the  Punjab  Town  Improvement  Act,  1922 [hereinafter referred to as the ’Act’] was duly published in daily Tribune  on January  10, 17 and 24, 1975 for acquiring an extent of 15.5 acres of land in Moga for diversion of the trucks from passing through Moga Town and stationing them at the proposed  new Mandi  Market. Objections had been invited under Section  38 by  public notice  dated January 24, 1975. Objections were  filed on  March 25, 1975. After framing the Scheme, a  layout plan  was prepared  for inspection  by the affected persons.  Fresh notice  was published  in the daily Tribune on May 13, 20 and 27, 1975. It was also published in local daily by name ’Ajit’ on May 11, 18 and 25, 1975. After the Government’s  approval was received, it was published in the same  manner on  May 23  and 30,  1975 and  June 6, 1975 respectively. The  individual notices were issued to all the persons under  Section 38  inviting objections to the Scheme since the  Trust had  decided to take over possession of the aforesaid property.  Notices were,  in  fact,  sent  to  the respondents by  registered post  with acknowledgement due on June 11,  1975. Notices  were serviced  on June 12, 1975 and objections came  to be filed by the respondents on August 8, 1975. After receipt of objections and consideration thereof, notices in  the daily Tribune and also Ajit calling upon the owners to  appear before  the Committee,  were published  on August 20,  1975 fixing  the date  of hearing  as August 25, 1975. It was stated as under:      "It  is   for  the  information  of

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    general public  and  in  particular      the owners of the area falling in -      [i] Scheme  No.1 regarding the land      near Thana Sadar, Moga.      [ii] Scheme No.3 regarding the land      between the D.B. Rest House and the      New     Grain      market     under      construction.      That they  will be  heard in person      in the office of the undersigned on      25.8.75 at  3.00 p.m. in respect of      the above schemes.                                Sd/                          [Gurdeep Singh]                             Chairman                Improvement Trust, Moga."      It would  appear that the respondents did not appear on the said  date at about 3.00 p.m. fixed for August 25. 1975. Accordingly, in  the meeting  held on  the aforesaid date it was decided  to forward  the scheme  for the approval of the Government under Section 40 of the Act. After receipt of the approval from  the Government of the Scheme under Section 40 [3] of  the Act,  notices were  published on  October 2  and October 9,  1975  respectively.  Public  notices  also  were published in  the local  vernacular daily  newspaper,  viz., Ajit, on  October 5  and 10,  1975 respectively.  Government notification was  published on  October 2,  1975 and October 10, 1975.  Notification, as required under Section 41 [1] of the Act,  was also published in the Government Gazette dated 26th December, 1975 regerding the sanction of the scheme. It would thus  be clear that the procedure prescribed under the Act had been followed in letter and spirit of the provisions of Section 40 of the Act.      Procedure for publication has been provided in Sections 78 and 79 which read as under:      "78.  Method   of   giving   public      notice. - Subject to the provisions      of this  Act, every  public  notice      required under  this Act  shall  be      deemed to  have been  duly given if      it  is   published  in  some  local      newspaper [if  any] and pasted upon      a  notice-board to be exhibited for      public information  at the building      in which  the meetings of the trust      are ordinarily  held.      79. Service  of notice. - [1] Every      notice other  than a public notice,      and every  bill, issued  under this      Act shall,  unless it is under this      Act otherwise  expressly  provided,      be served or presented -      (a)  by  giving  or  tendering  the      registered  notice   or  bill,   or      sending it   by registered post, to      the person to whom it is addressed,      or      (b) if such person cannot be found,      then by  leaving the notice or bill      at his  last known  place of abode,      if within   municipal limits, or by      giving  or  tendering  it  to  some      adult male member or servant of his      family,  ordinarily  residing  with      him or  by causing it to be affixed

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    on some  conspicuous  part  of  the      building or  land [if any] to which      it relates.      [2] When  a notice  is required  or      permitted  under  this  Act  to  be      served upon  an owner  or occupier,      as the  case may  be, of a building      or land,  it shall not be necessary      to  name   the  owner  or  occupier      therein, and the service thereof in      cases   not   otherwise   specially      provided for  in this  Act shall be      effect 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      (b)  if   such  owner  or  occupier      cannot be  found, then by giving or      tendering the  notice to  an  adult      male  member   or  servant  of  his      family ordinarily residing with him      or by  causing  the  notice  to  be      affixed on some conspicuous part of      the building  or land  to which  it      relates.      [3] Whenever  the person  on whom a      notice or bill is to be served is a      minor, service upon his guardian or      upon  an   adult  male   member  or      servant of  his  family  ordinarily      residing with  him shall  be deemed      to be service upon the  minor".      A reading  of the  Sections would clearly indicate that the statute requires general Publication. The publication in that behalf  in  the  newspaper  and  Gazette  is  mandatory requirement. On  the facts of this case, they were, in fact, published in  the newspapers.  Therefore, the  Act  did  not provide for  any individual notice or personal hearing under Section 79  of the  Act read  with Sections 36 and 38 of the Act. In  consequence, the  objections are not required to be served with  personal notice.  Notice in  the newspaper,  as required under the Act, was intended to be sufficient notice for the  objectors. The High Court, therefore, was not right in its  conclusion that  the respondents could not have read and had  not read  the newspapers.  That reason is obviously fallacious.  Once   the  statute   requires  publication  of notification  in  the  newspaper,  that  is  the  sufficient compliance. It presumes that the intending objectors are put on notice of the hearing and it is for them to appear and if they fail  to appear  they cannot make any grievance of non- issuance of  personal notice  which statute does not require them to be served.      Mr.  D.V.   Sehgal,  learned  senior  counsel  for  the respondents and  Mr. Mukul  Mudgal, learned  counsel for the appellant in  the connected  appeals, contended  that unless re-housing schemes  as enjoined  under Sections 26 and 27 of the Act  are framed  and executed, the respondents cannot be dispossessed from  the properties  in their  possession.  It would be  seen from  their own  averments that they have the composite buildings, namely, factory and residential houses. We need  not go into the controversy whether the factory and houses  have   been  constructed   in  accordance  with  the procedure prescribed under the law. Suffice it to state that

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there exist  a factory and composite residential premises in the factory.  The main thrust of the argument of Shri Sehgal is that unless a rehousing scheme is framed and implemented, the truck  scheme, in  other words  non-residential  scheme, cannot be  put in  operation. We  do not  find force  in the contention. A  reading of  Sections 26 and 27 would indicate that  wherever   a  scheme   for  housing   is  said  to  be established, the  displaced house-owners  are required to be re-housed under  the scheme. If the legislature intends that even for  non-residential schemes,  establishment of the re- housing scheme  is a  condition precedent,  it would  appear that no  non-residential scheme can be implemented until the residential scheme,  is fully put in operation. It is common knowledge that  for framing  a residential scheme, acquiring the  land   and  construction   would  take  years.  In  the meanwhile, the  non-residential  scheme  would  be  rendered ineffective. Under  those circumstances, considered from the pragmatic  point   of  view,   it  must  be  held  that  for acquisition  of   the  land  to  effectuate  non-residential schemes,  it   is  not  mandatory  that  re-housing  of  the residential scheme  should be  first initiated,  implemented and  then   non-residential  scheme   would  be   taken  up. Considered from this perspective, we do not think that there was any  justification for  the High Court to interfere with the conclusion.      It would  be seen that an award had already been passed and amount was deposited. Except the respondents, all others have surrendered  possession of  the land.  Pursuant to  the direction issuecd  by this Court, the respondent submitted a detailed report  regarding  the  proposed  scheme  and  also existence of  the factories of the respondents. On a perusal thereof, any direction to exclude the factories in which the respondents   have   set   up   would   create   innumerable difficulties  frustrating   the  scheme   and  day   to  day complication.  Under   these  circumstances,   it  would  be difficult for  this Court  to give any such direction. It is now contended  that since  respondents have been residing in those places,  re-housing would also be provided to them. It would be  open to  the respondents to make an application to the appellants  and the  appellants have to consider and the appellants in  accordance with the rules after giving notice of hearing  to them.  The respondents  are given six months’ time from  today to deliver possession of filing their usual undertaking within four weeks from today.      The main  appeal of  the Trust  is allowed. The appeals filed by the claimants are dismissed. No costs.