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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