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CASE NO.: Appeal (civil)  2558-2559 of 2004

PETITIONER: Ram Krishan Mahajan

RESPONDENT: Union Territory of Chandigarh and others

DATE OF JUDGMENT: 03/07/2007

BENCH: B.P. SINGH & ALTAMAS KABIR

JUDGMENT: J U D G M E N T  

WITH CIVIL APPEAL NO.2564 OF 2004  Inderjeet Behal (Dead)                                   \005.Appellant through Lrs.  Versus Union Territory of Chandigarh and another               \005.Respondents WITH  CIVIL APPEAL NO.2585 OF 2004 Paramjit Singh Bhatti                                   \005.Appellant Versus Union Territory of Chandigarh and others                \005.Respondents WITH CIVIL APPEAL NO.2588 OF 2004 Anu Jagga                                                       \005.Appellant                 Versus Union Territory of Chandigarh and another                 \005Respondents. WITH CIVIL APPEAL NO.2567 OF 2004 Rameshwar Dass Kaushal                          \005.Appellant         Versus Union Territory of Chandigarh and others                ...Respondents. WITH CIVIL APPEAL NO.2586 OF 2004 Brij Bhushan and others.                                        \005.Appellants                 Versus Union Territory of Chandigarh and others                \005.Respondents WITH CIVIL APPEAL NO.2561 OF 2004

Gurdeep Kaur                                            \005.Appellant

               Versus

Union Territory of Chandigarh and others                \005.Respondents

WITH

CIVIL APPEAL NOS.2562-2563 OF 2004

Amit Singh and another                                  \005.Appellants  

               Versus

Union Territory of Chandigarh and another               \005.Respondents

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WITH

CIVIL APPEAL NO.2560 OF 2004

Naurang Singh                                           \005.Appellant

               Versus

Union Territory of Chandigarh and others                \005.Respondents

WITH

CIVIL APPEAL NO.2565-2566 OF 2004

Vishkarma Furniture and Pahwa Industries  and others                                                      \005.Appellants

               Versus

Union Territory of Chandigarh and others                \005.Respondents

WITH

CIVIL APPEAL NO.2555-2556 OF 2004

Hakam Singh                                                \005.Appellant

               Versus

Union Territory of Chandigarh                           \005.Respondent

WITH

CIVIL APPEAL NO.2569 OF 2004

Shadi Lal Tayal (Dead)  through Lrs. and others                                         \005.Appellants

               Versus

Union Territory of Chandigarh and another               \005.Respondents

WITH

CIVIL APPEAL NO.2587 OF 2004

Jagir Singh and another                                 \005.Appellants

               Versus

Chandigarh Administration and others                    \005.Respondents

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WITH

CIVIL APPEAL NO.2570 OF 2004

Ashwani Kumar                                           \005.Appellant

               Versus

Union Territory of Chandigarh ad others         \005.Respondents

AND

CIVIL APPEAL NO.4070 OF 2004

Gagandeep Kang and others                                \005.Appellants

               Versus  

Union Territory of Chandigarh and another               \005.Respondents

B.P.SINGH, J.

       1.      In this batch of appeals the common judgment and  order of the    High Court of Punjab and Haryana dated April 28,  2003 disposing of the Writ Petitions has been assailed.  In the Writ  Petitions before the High Court, the acquisition proceedings under  the Land Acquisition Act (for short ’the Act’) by issuance of  Notifications by the Chandigarh Administration under Section 4  thereof had been challenged which has been rejected by the High  Court by its impugned judgment and order.  The lands were sought  to be acquired for Scheme Nos.2 and 3 and were spread over eleven  Pockets within the Notified Area of Mani Majra, which has since  vested in the Municipal Corporation of Chandigarh.  Pockets 1 to 6  related to Scheme No.2, while Pockets 9 to 11 related to Scheme  No.3.

       2.      It is not disputed that so far as Pocket Nos.1 to 6 are  concerned, the Notifications under Section 4 of the Act were issued  on different dates between May 25, 1989 and October 12, 1989.  It  is also not disputed that several awards have been made and many  of the land owners have received the compensation awarded, but  the appellants herein have challenged the acquisition proceedings,  mainly on two grounds, namely that in the absence of a ’building  scheme’ framed under Section 192 of the Punjab Municipal Act,  1911 no land could be acquired under the provisions of the Act for  the purposes of the Scheme.  Secondly, the appellants challenged  the proceedings on the ground that the Notification under Section 4  of the Act was not published in the manner required, and in  particular on the ground that there was no publication of the  substance of the Notification under Section 4 of the Act in the  locality.  A few background facts may be noticed at the threshold:

       3.       The Mani Majra Gram Panchayat was declared a  Notified Area under Section 241 of the Punjab Municipal Act, 1911  on August 19, 1973.  By Notification dated June 11, 1976, issued  under Section 242 of the Act of 1911 certain provisions of the Act  of 1911 such as Sections 3, 53, 58, and 192 were extended to the

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Mani Majra Notified Area.  Section 243 of the Act of 1911  provides as follows:- "243. Application of Act to notified area. - For  the purposes of any section of this Act which may  be extended to a notified area the committee  appointed for such area under section 242 shall be  deemed to be a municipal committee under this Act  and the area to be a municipality".

It was urged before the High Court that without framing building  scheme under Section 192 of the Act of 1911, the acquisition of the  land for residential-cum-commercial complex (Scheme No.2 of the  Notified Area Committee) could not be said to be for a public  purpose and was contrary to law.  It was argued that though the  definition of "public purpose" under the Act included, under  Section 3(f)(vii), the provision of land for any other scheme or  development sponsored by Government, or with the prior approval  of the appropriate government, by a local authority, in the context  of the Act of 1911 it must mean a "building plan" contemplated by  Section 192 of the Act of 1911.  Since such a plan was never  prepared by the Notified Area under Section 192, in the absence of  a valid "building Scheme", no land could be acquired for that  purpose.

       4.      Section 58 of the Act of 1911 provides for acquisition  of land under the Act at the request of the Committee.  It reads as  under:- "58. Acquisition of land -  When any land,  whether within or without the limits of a  municipality, is required for the purposes of this  Act, the [State] Government may, at the request of  the committee, proceed to acquire it under the  provisions of the Land Acquisition Act, 1894, and  on payment by the committee of the compensation  awarded under that Act, and of any other charges  incurred in acquiring the land, the land shall vest in  the committee.

Explanation. \026 When any land is required for a new  street or for the improvement of an existing street,  the committee may proceed to acquire, in addition  to the land to be occupied by the street, the land  necessary for the sites of the buildings to be erected  on both sides of the street and such land shall be  deemed to be required for the purposes of this Act".

       5.      It was, therefore, argued before the High Court that the  municipal fund could be utilized only for the purposes  contemplated by Section 52 of the Municipal Act of 1911.  Since  the Scheme was not a "building scheme" under Section 192 of the  Act of 1911, the Mani Majra Notified Area could not be burdened  with the cost of acquisition of land.

       6.      On the contrary, the respondents submitted that the  Scheme in question was not a ’building scheme’ under Section 192  of the Act of 1911.  It was a development scheme with a view to  provide facilities to the general public by providing for residential  and commercial accommodation, and multi \026 speciality hospital,  and was therefore clearly covered by Section 52(2)(c) of the Act of  1911.  It was clearly a public purpose under Section 3(f)(vii) of the  Act.

       7.      The High Court rejected the contention of the  petitioners.  It noticed that earlier similar Writ Petitions involving

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identical questions had been dismissed.  It observed:-

"It is further pointed out that identical questions  were raised in respect of acquisition of pocket  Nos.9, 10 and 11 which was sought to be made by  publication of notification under Section 4 of 1894  Act on 24.6.1990.  The said acquisition was the  subject matter in C.W.P. No.12936 of 1991  whereas acquisition of land in pursuance of  notification dated 9/10.8.1990 was the subject  matter of challenge in C.W.P. No.14898 of 1991.   The writ petitions challenging these acquisition   proceedings were dismissed by the learned Single  Judge of this Court on 20.1.1992 in Prem Singh and  others Vs. Union Territory, Chandigarh 1992(2)  PLR 370, and Letters Patent Appeal against the  said judgment was also dismissed by the Division  Bench on 11.3.1998.  Another bunch of 30 writ  petitions wherein notifications dated 28.6.1990,  31.1.1992 etc.  under section 4 was dismissed by  the Division Bench on 22.9.1995.  The detailed  order was passed in C.W.P. 2126 of 1993, Partap  Chand and others Vs. Union Territory, Chandigarh  and others.  It was thus contended that since  identical questions of law and fact have already  been adjudicated upon by a Division Bench of this  Court in respect of the similar acquisition  proceedings, therefore, the present writ petitions are  liable to be dismissed".

8.      The High Court also noticed the finding of the  Division Bench in Prem Singh’s case which is as follows:-

"The final argument of Mr. Ram Swaroop is purely  a legal submission.  It has been argued that as no  scheme had been framed as envisaged under  Section 192 of the Punjab Municipal Act, 1976  (hereinafter called the Punjab Act) the land could  not be acquired for the purpose.  It has also been  contended that the land could be acquired only for  the purpose of the NAC and Union Territory,  Administration could not notify the same.  We have  considered these arguments in the light of the  averments in the reply.  It is the conceded case that  no building scheme has been framed as per the  provisions of Section 192 of the Punjab Act, but the  respondents have categorically stated that the  scheme for which the land had been acquired, is not  a scheme within the meaning of Section 192 of the  Punjab Act and the land is being acquired under the  Act for the purpose of a Development Scheme for  providing facilities to the residents of ’the area’.   We are further of the opinion that Section 58 of the  Punjab Act specifically provides that the State  Government which in this case would be the Union  Territory Administration, is fully competent to  acquire land for the public purposes.  In the light of  these averments, the judgments cited by the learned  counsel, in fact, have no bearing in the case in  hand".  

9.      The core issue therefore is whether the acquisition is  for a "building scheme" as contemplated under Section 192 of the

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Act of 1911, or whether it is only a development plan for providing  better facilities to the inhabitants of the area by way of residential,  commercial and medical facilities which are within the  contemplation of Section 52(2)(c) of the Act of 1911.

10.     This takes us to Section 192 of the Act of 1911, the  relevant part whereof is reproduced below:-

"192. Building scheme. \026 (1) The committee may,  and if so required by the [Deputy Commissioner]  shall, within six months of the date of such  requisition, draw up a building scheme for built  areas, and a town planning scheme for unbuilt  areas, which may among other things provide for  the following matters, namely :-

       (a)     the restriction of the erection or re- erection of buildings or any class of buildings in the  whole or any part of the municipality, and of the  use to which they may be put :

       (b)     the prescription of a building line on  either side or both sides of any street existing or  proposed ; and

       (c )    the amount of land in such unbuilt area  which shall be transferred to the committee for  public purposes including use as public streets by  owners of land either on payment of compensation  or otherwise, provided that the total amount so  transferred shall not exceed [thirty-five percent]  and the amount transferred without payment shall  not exceed [seventy-five per cent], of any one  owner’s land within [such unbuilt area].

(2)     When a scheme has been drawn up  under the provisions of sub-section (1) the  committee shall given public notice of such scheme  and shall at the same time intimate a date not less  than thirty days from the date of such notice by  which any person may submit to the committee in  writing any objection or suggestion with regard to  such schemes which he may wish to make.

(3)     The committee shall consider every  objection or suggestion with regard to the scheme  which may be received by the date intimated under  the provisions of sub-section (2) and may modify  the scheme in consequence of any such objection or  suggestion and shall then forward such scheme as  originally drawn up or as modified to the [Deputy  Commissioner], who may, if he thinks fit, return it  to the committee for reconsideration and  resubmission by a specified date; and the [Deputy  Commissioner], shall submit the plans as  forwarded, or as resubmitted, as the case may be,  with his opinion to the [State] Government, who  may sanction such scheme or may refuse to  sanction it, or may return it to the committee for  reconsideration and resubmission by a specified  date".

11.     We have no doubt that if the lands were being acquired  for a "building scheme" as contemplated by Section 192, the

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acquisition could not be made under the provisions of the Act  unless such a scheme was validly framed after following the  prescribed procedure, and was duly sanctioned by the State  Government.  But it appears to us that the High Court was right in  coming to the conclusion that this was not a "building scheme"  under Section 192, but merely a development plan to provide  facilities to the public, such as those within the contemplation of  Section 52(2)(c) of the Act of 1911, to which the municipal fund  could be applied.  It was, therefore, not required to follow the  procedure under Section 192 of the Act of 1911.

12.     The relevant part of Section 52 reads as follows:-         "52.    .\005           \005.                   \005.                    \005.           \005.                   \005.         (1)     \005.           \005.                   \005.                 \005.           \005.                   \005. (2)     Subject to the charges specified in sub- section (1) and to such rules as the [State]  Government may make with respect to the priority  to be given to the several duties of the committee,  the municipal fund shall be applicable to the  payment in whole or in part, of the charges and  expenses incidental to the following matters within  the municipality, and with the sanction of the [State  Government] outside the municipality, namely:-

\005.                   ....                    \005.

\005.                   \005.                   \005.

(c) the construction, establishment and maintenance  of schools, hospitals and dispensaries, and other  institutions for the promotion of education or for  the benefit of the public health, and of rest-houses,  sarais, poor-houses, markets, [stalls], encamping  grounds, pounds, and others works of public utility,  and the control and administration of public  institutions of any of these descriptions : .\005.                  \005..                  \005..

.\005.                  \005..                  \005..

\005..                  \005..                  \005..

(l)     all acts and things which are likely to  promote the safety, health, welfare or convenience  of the inhabitants or expenditure whereon may be  declared by the committee, with the sanction of the  [State] Government to be an appropriate charge on  the municipal fund".

13.     The objection that the municipal fund could not be  applied for providing residential, commercial and medical facilities  must be rejected.  The facilities that a municipality is empowered to  provide under the Act may involve acquisition of land as it is  required for the purpose of the Act and therefore, it may make a  request to the State Government to acquire the lands required for  the purpose, and bear the cost of acquisition.  

14.     In view of our above finding the submission urged  before us on the basis of the provisions of the Punjab Periphery  Act, 1952 must also be rejected.  It was submitted that the Punjab  Periphery Act, 1952 was enacted with a view to prevent growth of  slums and ramshackle construction on the lands lying on the

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periphery of the new city of Chandigarh.  This was considered  necessary to ensure healthy and planned development of the new  city.  The Periphery Act, therefore, empowered the State  Government to declare the whole or the part of the area to which  the Act extended to be a "controlled area" for the purpose of the  Act.  Once the "controlled area" was declared, no person could  erect or re-erect any building or make or extend any excavation etc.  in the "controlled area" save in accordance with the plans and  restrictions and with the previous permission of the Deputy  Commissioner in writing.  It is not disputed before us that the  necessary permission  under the Periphery Act, 1952 has been  granted for raising the structures in question.  It was, however,  argued before us that permission could not be granted to the  Notified Area Committee, which is deemed to be a Municipality,  for a purpose which cannot be undertaken by the Notified Area  Committee.  Since the Municipality cannot develop a residential,  commercial or institutional area, and spend municipal funds over  them, the permission could not have been granted.  We find no  substance in the argument in view of our finding that the  development work undertaken by the Notified Area Committee  could be undertaken by it under the provisions of the Punjab  Municipal Act and, therefore, the permission granted under the  Punjab Periphery Act, 1952 is not tainted with illegality.   

15.     It was argued in Civil Appeal Nos. 2558-2559 of 2004  arising out of Writ Petition ) No. 3125 of 1990 that the permission  granted on January 2, 1989 under Section 11 of the Punjab  Periphery Act, 1952 referred to only Pockets I to III and there was  no reference to Pocket No.5.  Therefore, so far as the lands falling  in Pocket No.5 are concerned, there was no valid permission to  raise the impugned structures.  This point does not appear to have  been raised before the High Court.  However, there is material on  record to support the contention of respondents that originally the  area was divided into three pockets, namely Pocket numbers I, II  and III.  It was only later that three Pockets were converted into six  Pockets.  In this connection we may refer to the affidavit filed  before this Court by the Land Acquisition Collector wherein it was  stated that Pocket Nos. I, II and III were later on converted into six  Pockets vide Memo No.5641-UTFI(I)-88/34 dated January 2, 1989  and Memo No.3/117/88/UTFI(4)-88/245 dated January 6, 1989.   Thus, even though six Pockets are not mentioned in the permission,  the three Pockets for which the permission was granted included  the land of the appellant.  The appellant himself in his writ petition  has reproduced the proposal made by the Notified Area Committee  for acquisition of land wherein it was stated that the land measuring  21 acres, 57 acres and 67 acres respectively in Pocket Nos. I, II, and  III should be acquired.  The appellant has also referred to the  Resolution of the Notified Area Committee wherein it is stated that  according to the actual measurement and Akash Shajra, the total  area under Pocket No.I was found to be 30-21 acres, Pocket No.II,  54-91 acres and Pocket No.III, 75-67 acres.  Thus the total area  acquired was 160-87 acres instead of 145 acres and accordingly the  Committee unanimously accorded its sanction for acquisition of  land measuring 160-67 acres.  The contemporaneous documents,  therefore, substantiate the plea of the respondents that the grant of  permission under Section 11 of the Periphery Act, 1952 related to  the lands ultimately acquired and though, originally there were only  three Pockets they were subsequently converted into six Pockets,  but the lands remained the same, though on actual measurement it  was found that there was a difference of about 15 acres.  The  appellant has not produced any material to satisfy the Court that his  land was not included in the original three Pockets in respect of  which the permission had been granted by the competent authority  under the Punjab Periphery Act, 1952.  We, therefore, find no merit  in the submission that no permission had been granted under

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Section 11 of the Punjab Periphery Act, 1952 relating to the land of  the appellant.  

16.     This takes us to the next question urged by some of the  appellants that the Notification under Section 4 of the Land  Acquisition Act, 1894 was not published in the manner prescribed  by Section 4 of the Act.  The grievance of the appellants in  particular is that the substance of the Notification had not been  given at convenient places in the locality.  There is no dispute with  regard to the issuance of the Notifications in the official gazette and  the publication of the Notifications in two daily newspapers  circulating in the area.  The case of the respondents is that the  Notification was given due publicity in the locality by beat of  drums on June 3 and June 4, 1989.  The assertion of the  respondents was challenged by the appellants and C.M. No. 4235  filed on March 30, 1990 with the prayer that the respondents be  directed to produce the entire record, specially the documents  evidencing the publicity by beat of drums in the locality.  However,  the said application was ordered to be heard with the main case  which unfortunately came up for hearing many years later in the  year 2003. 17.     An affidavit of the Land Acquisition Officer dated  March 23, 2003 was filed before the High Court wherein it was  admitted that the original record pertaining to the acquisition of  land in various pockets of the revenue estate of Mani Majra was not  traceable and an inquiry had been initiated in the matter.  Some  officials of the Administration as well as the Municipal Corporation  had been suspended.  It was explained that when an application was  filed for early hearing of the writ petitions and a search was made  for the original record pertaining to the acquisition of lands in  various pockets, it was found that the record was not traceable  despite concerted efforts.  The following records in particular could  not be traced out :- "i)     Original record regarding publication in the  official gazette and newspapers in respect to  Pocket No.2, 9, 10 and 11.  The record  regarding publication in the locality with  regard to Pocket No.1-6 and 9-11 is also not  available.

ii)     The original Rapat Roznamachas pertaining  to the above are not traceable.

iii)    The original objections and notices under  section 5-A are not available except Pocket  No.11.

iv)     Original record pertaining to the presence of  the objectors at the time of hearing of  objections under section 5-A is also  missing".

However, one file pertaining to the said acquisition was traced out  in the office of the Finance Secretary, UT containing 1 to 518 pages  of which pages 1 to 83 contained the notings.  Paragraph 6 to 12 of  the affidavit of the Land Acquisition Officer are significant and we  reproduce them below :-

"6.     That the above mentioned file contains two  reports dated 22.8.1989 and 11.9.1989 by the  Assistant Estate Officer (exercising the powers of  the Land Acquisition Officer, Notified Area  Committee, Mani Majra), Chandigarh.  In these  reports pertaining to Pocket Nos.1-6, it is clearly  mentioned that opportunity of hearing as envisaged

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in the Land Acquisition Act had been given to the  interested persons on 10.8.1989 and 23.8.1989,  respectively.  These reports are available in the file  at Page No.71 and 113 and the list of objections  filed by 18 objectors and 90 objectors respectively  are available from Page 87 to 90 and 123 to 129.   Photocopy of these two reports is annexed as  Annexure ’I’ and ’II’.

7.      That report dated 15.1.1990 pertaining to  Pocket No.3 to 5 sent by the Assistant Estate  Officer, exercising the powers of the Land  Acquisition Officer, Notified Area Committee,  Mani Majra is available in the file on page No.246- 247 and the details of the objections filed are  available at page 254-255.  As per his report,  hearing was given on 9.1.1990.  Photocopy of this  report alongwith its enclosures is annexed as  Annexure ’III’.

8.      That the officer who had submitted the report  i.e. Shri D.V. Bhatia who has since retired has been  contacted and inquiries made from him.  An  affidavit of Shri D.V. Bhatia, wherein he has stated  that opportunity of personal hearing was given by  him to the interested persons and proper procedure  as envisaged in the Land Acquisition Act was  followed is annexed as Annexure ’IV’.

9.      That the Patwari, Notified Area, Mani Majra  at the relevant time namely Shri Som Nath (since  retired) was also contacted.  He has revealed that he  was posted as Patwari, Notified Area Committee,  Mani Majra from July 1989 till November, 1993.   During this period, notifications under section 4  and 6 of the Land Acquisition Act pertaining to  Pockets No.1-6 and Pocket No.9-11 were issued.   The record pertaining to the publication (original  information) and entries in the Rapat Roznamchas  remains with the revenue Patwari.

10.     That as submitted above, the only record  pertaining to this acquisition is in the shape of file  mentioned above.  The report dated 15.1.1990  clearly shows that the objections were heard by the  then Land Acquisition Officer and opportunity of  personal hearing was given on 9.1.1990.  The  original objections filed by the Petitioner is also on  the record of this file at page No.272-285.  The  affidavit of Shri D.V. Bhatia also shows that an  opportunity of personal hearing had been given to  the Petitioners.  On the very file at page 286, a  notice dated 2.1.1990 is there, wherein the  Petitioner Ram Krishan Mahajan has been asked to  appear before the Land Acquisition Officer on  9.1.1990 at 11.00 a.m. in the Estate Office  Building, Sector 17, Chandigarh for personal  hearing.  Photocopy of the notice dated 2.1.1990 is  annexed as Annexure ’V’.

11.     That the award files pertaining to the Pocket  No.1-6 and 9-11 which are subject matter of the  case and connected cases except the file pertaining  to Pocket No.3 are available.

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12.     That in respect of Pocket No.1, the available  record includes the award file and the report by the  then Land Acquisition Officer dated 22.8.1989 in  respect to the objections under section 5-A of the  Land Acquisition Act, 1894 on Page 75 of the file  received from the office of the Finance Secretary,  UT, Chandigarh.  The record pertaining to the  publication in the official gazettee and publication  in the newspapers is also available in this file".

18.     The High Court has taken notice of the fact that the  relevant files were missing when the matter came up for hearing  before the Court.  The High Court however, found that no case for  interference was made out by the appellants.  It recorded its  conclusion in the following words :-  "       However, dispute in the present case is, whether the  substance of the notification under Section 4 of the Act  was published in the locality and, whether such  publication satisfies the requirement of Section 4 of 1894  Act? The counsel for the petitioners have relied upon  noting sheet dated 1.6.1989 whereby Secretary, Notified  Area Committee, Mani Majra had directed Sanitary  Inspector to cause wide publicity of the notification in the  locality through beat of drum on 1.6.1989. The Sanitary  inspector has endorsed that wide publicity in respect of  notification had been given through beat of drum by  Banarsi Dass, Catsman on 3.6.1989 & 4.6,1989. The said  noting sheet has been seen by the Secretary Notification  Area Committee and placed to file. The grievance to such  manner of publication is that there is no valid  authorisation by the Collector to cause the substance of  the notification published through Secretary, Notified  Area Committee, Mani Majra or by Sanitary Inspector.  Still further, the publication is allegedly made by a  Cartsman who is neither a public servant nor shown to be  competent to carry out the requirement of the publication  by beat of drum.  The reliance of the counsel for the petitioners on  the provisions of Section 4 of 1894 Act that "the Collector  shall cause public notice of the substance or said  notification to be given at the convenient places of the  locality" is not tenable. The Collector contemplated under  Section 9 of 1894 Act is one defined under Section 3(c) of  1894 Act which means that the Collector of the District  and includes the Deputy Commissioner and any officer  specially appointed by the Appropriate Government to  perform the functions of the Collector under the said Act.  The Collector is the agent of the State Government  competent to acquire land for the State Government. One  or other official can cause the publication of the substance  of the notification in the locality. It is not necessary that  the Collector has to personally authorise the publication  by beat of drum. It is the publication of the substance in  the locality which is a material factor so as to invite the  attention of the interested persons towards the intention of  the Government to acquire the land. No rule, provision or  instructions were brought to our notice that the procedure  of beat of drum has to be carried out only by a public  servant. As a matter of fact, such ministerial functions can  be performed by any one authorised by the competent  authority. The beat of drum is not a process requiring  special skill and, thus, the arguments raised by the  counsel for the petitioners are misconceived, in any case,  the defects pointed out by the petitioners can at best be

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called an irregularity which does not vitiate the  publication of the notification.  Thus, we are of the opinion that the substance of  the notification was published in the locality in  accordance with the provisions of Section 4 of 1894 Act.  In CWP No. 2126 of 1983, Partap Chand’s case (supra) an  argument was raised on the basis of the affidavit filed by  Dayal Singh who, as per the State, carried out the process  of beat of drum. Dayal Singh having denied any such  process by way of filing affidavit, the Court negatived the  contentions of the writ petitioners on the ground that it  was the positive stand of the petitioners that notifications  under Section 4 & 6 of 1894 Act had not been published  in the newspaper."

19.     It will thus appear that the finding recorded by the  High Court is based on the documents relied upon by the appellants  themselves.  The note sheet dated June 1, 1989 clearly stated that  the Sanitary Inspector had been directed to cause wide publicity of  the Notification by beat of drums on June 1, 1989 and had later  endorsed that wide publicity had been given by Banarsi Dass,  cartsman on June 3, 1989 and June 4, 1989.  The High Court rightly  rejected the submission that there was no valid authorization since  the cartsman was not a public servant.  The High Court has rightly  observed that the fact that the cartsman was not a public servant  was not relevant.  What was relevant was that due publicity had  been given in the locality by beat of drums on two dates, namely on  3rd June and 4th June, 1989.  There is no reason for us to doubt the  notings in the file made contemporaneously many years ago.  We,  therefore, affirm the finding of the High Court that the substance of  the Notification issued under Section 4 of the Land Acquisition Act  had been duly published in the locality in accordance with the  provisions of the Act.          20.     The next submission urged on behalf of the appellants  before the High Court was with regard to their not being given an  opportunity to file their objections under Section 5-A of the Land  Acquisition Act and/or failure to give an opportunity to the parties  who had filed objections to represent their cases before the  competent authority.  The High Court has considered in detail the  facts of each case.  We have also heard the parties at length only to  satisfy ourselves about the reasonableness of the findings of fact  recorded by the High Court on consideration of the evidence on  record.  We find ourselves in agreement with the High Court that  the grounds urged on behalf of the appellants are untenable.  The  High Court has noticed the fact that the material on record did  indicate that in many cases notices were given to the parties  concerned, objections were filed and heard and awards declared.  The report of the Land Acquisition Collector in some cases is also  on record.  The objections filed by some of the appellants were also  before the High Court.  Ms. Kamini Jaiswal appearing on behalf of  the Union Territory of Chandigarh and the Notified Area  Committee also took us to the evidence on record and we are  satisfied that this is not a case which requires interference by this  Court on a pure question of fact.  The High Court has elaborately  dealt with the submissions urged before it, has critically scrutinized  the evidence on record and recorded its findings.  Having heard  counsel for the parties at length, we are satisfied that no  interference is called for by this Court.   21.     It was urged by the appellant in Civil Appeal No.2567  of 2004 that the High Court failed to consider the question raised  by him in the special facts of his case.  He submitted that the State  had not notified for acquisition lands over which buildings had  been erected and, therefore, in accordance with the said policy his  land should also have been kept out of acquisition.   21.     In the writ petition the petitioners (there were three

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petitioners before the High Court) averred that they were the  owners in possession of the land in question.  They were running  their business of lime and limestone on the said land for the last  more than 25 years.  Sales tax number, telephone connection and  house number had been allotted to them.   It was also averred that  some similar shops which had been constructed on Khasra Nos.  100/29/30/31/32/34 were left out of acquisition, which showed that  a pick and choose method had been adopted by the Government.   According to the petitioners those shops were like that of the  petitioners and similarly situated.   22.     In the objections filed under Section 5\026A of the Act  the appellant had stated that he had constructed a house and a  building in which he was running a business of lime and limestone  and that the structure on the land had been given a number by the  N.A.C., namely No.1989.  It does, therefore, appear from the  averments made in the writ petition read with the objections under  Section 5-A of the Act that over the land in question the appellant  had been carrying on lime and limestone business.  His grievance is  that some other similar shops located on similar land were not  acquired.   23.     In the reply filed on behalf of the respondents before  the High Court it was denied that any pick and choose method had  been adopted.  It was asserted that on Khasra Numbers in question  construction had been raised prior to the issuance of Notifications  under Sections 4 and 6 of the Act.  In fact those constructions  existed even prior to the formation of the Notified Area Committee,  Mani Majra.  The constructions were raised after getting building  plans sanctioned from the erstwhile Panchayat Committee.  It was  in these circumstances that those Khasra Numbers were kept out of  acquisition.  24.     We find that the respondents had good reasons for not  acquiring lands over which there stood permanent structures which  had been raised after getting building plans sanctioned from the  concerned authority.   The appellant has no where averred that he  had raised the structure after getting a building plan duly sanctioned  by the concerned authority.  The mere fact that the shop was given  a number is not at all relevant in the facts of the case. 25.     Learned counsel then argued that some lands which  had been earlier notified for acquisition have been released by the  Government as late as  on 9th January, 2004 exercising its powers  under Section 48 of the Act.  This fact by itself does not justify the  conclusion that there was discrimination in the matter of acquisition  of land.  It appears from the Notification produced before us that  some of the lands in Darshani Bagh had to be released in the  peculiar facts of the case.  It appears that the Notification for  acquisition had been earlier quashed by the High Court on August  11, 1997 but on a review petition being filed by the Chandigarh  Administration, the earlier order allowing the writ petition was  recalled on January 31, 2003 and thereafter an award was  pronounced by the Land Acquisition Officer on March 5, 2003.     During the interregnum of about 10 years from the date of issuance  of Notification under Section 4 of the Act many constructions had  come up on a portion of the acquired land.  It was under these  circumstances that those lands were exempted from acquisition in  exercise of powers conferred by Section 48 of the Act.   26.     We have considered the facts of the case and the  material placed before us, since the issue raised before us was not  argued before the High Court in the manner it was argued before  us. That is why we find no categoric finding of the High Court on  this issue.  However, after considering the material on record we  are satisfied that the appellant’s plea that in the facts and  circumstances his land should also have been exempted from  acquisition has no merit.  27.     We, therefore, find no merit in these appeals and they  are accordingly dismissed.  There shall be no order as to costs.     

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       28.     I.A. Nos.2 and 3 in Civil Appeal No.2567 of 2004 are  dismissed.  I.A. No.4 in Civil Appeal No.2569 of 2004 is rejected  but without prejudice to the right of the applicant to seek remedy, if  any, in accordance with law before the appropriate forum.