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PETITIONER: SMT.WINKY DILAWARI & ANR.

       Vs.

RESPONDENT: AMRITSAR IMPROVEMENT TRUST,AMRITSAR

DATE OF JUDGMENT:       03/09/1996

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. FAIZAN UDDIN (J)

ACT:

HEADNOTE:

JUDGMENT:                THE 3RD DAY OF SEPTEMBER, 1996 Present:           Hon’ble Mr.Justice K.Ramaswamy           Hon’ble Mr.Justice Faizan Uddin D.V.Sehgal, Sr.Adv.A.T.M.Sampath,  Ms.Monica Gosain,  Advs., with him for the appellants. E.C.Agrawala, Adv. for the Respondent                          O R D E R The following order of the Court was delivered: Smt.Winky Dilawari & Anr. V. Amritsar Improvement Trust, Amritsar                          O R D E R      This appeal  by special leave arises from the judgement and order  of the  learned single  Judge  of  the  Punjab  & Haryana High  Court made  in RSA  No. 2071/92  on August  2, 1993. The  admitted facts  are that the respondent-Trust had framed a  Scheme for providing passage to Guru Nanak Stadium from the  main road,  namely, Madan Mohan Malviya Road under Section 36  of the  Punjab Town  Improvement Act,  1922 (for short, the  "Act"]. The Scheme in that behalf was framed and notices were  issued of the factum of framing of the Scheme; objections were  invited and  the Scheme was published under Section 78  in the  weekly newspapers  for three consecutive weeks and  also in  the State  Official Gazette. It was also published in  the newspapers  in  the  locality  within  the specified period.  The notice  of the Scheme was sent to the President of  the Municipal  Committee and  to  the  Medical Officer under  sub-section 2(b) of Section 36 of the Act. No objections in  that behalf  came to be made. Thereafter, the Government had  approved the  Scheme under Section 40 of the Act. By  operation of Section 42(2) of the Act, the approval of the  Scheme having been published under Section 42(1), it became conclusive  evidence that  the Scheme  had been  duly framed and  sanctioned. Thereafter,  the  proceedings  under Schedule to  the Act  read with Section 59 were taken up for acquisition of  the land  proposed to  be acquired under the

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Scheme. Section  38 of  the Act  envisages compliance of the notice of the publication in that behalf. It reads as under:      "38. Notice of proposed acquisition      of land  :- (1)  During the  thirty      days next  following the  first day      on which  any notice  is  published      under section  36 in respect of any      Scheme under  this  Act  the  trust      shall serve a notice on:-      (i) every person whom the trust has      reason to believe after due enquiry      to be  the owner  of any  immovable      property which  it is  proposed  to      acquire in executing the Scheme.      (ii) The  occupier (who need not be      named)  of  such  premises  as  the      trust  proposes   to   acquire   in      executing the Scheme.      2) Such notice shall :-      a) state that the trust proposes to      acquire  such   property  for   the      purposes of  carrying out  a Scheme      under this Act, and      b)  require   such  person,  if  he      objects  to  such  acquisition,  to      state his reasons in writing within      a period  of sixty  days  from  the      service of the notice.      3)  Every   such  notice  shall  be      signed by,  or by  the order of the      Chairman."      There is  no dispute  and it  cannot be  disputed  that service of  the notice  on every  person whom  the Trust had reason to believe, after due enquiry, to be the owner of the immovable property  which the  Trust proposes  to acquire in execution of  the Scheme,  or the occupier of such premises, is necessary.  It would  therefore, be  necessary  that  the Trust must  have reason  to believe, after due enquiry, that the person  to be  affected is  the owner  of the  immovable property proposed to be acquired. In this case, the admitted position is that the disputed property is a vacant site. The appellant had  purchased the  property on  January 24, 1985. The Scheme was approved by the Government on March 19, 1985. It would  be obvious  that the proposal under Section 36 was widely published in the Gazette, weekly and daily newspapers and notice thereof was also given to the Municipality before the appellants  purchased the property. It is not in dispute that after  the purchase made by the appellant, his name was not mutated  in the  records of  the Municipality before the approval was  granted by  the State Government. The question therefore, is:  whether the  failure to  serve the notice on the appellant  vitiates the approved Scheme? In our view, it does not.      It is seen that the Municipality was sent notice of the proposed acquisition  as required  under Section 36 and also under Section 38 of the Act. When such presumption was made, it would  be obvious  that the person in possession would be aware of  the proceedings  proposed for the execution of the Scheme  and   also  acquisition  thereof.  It  is  true,  as contended by  Shri Sehgal,  learned senior  counsel for  the appellants, that registration of a document in the office of the  Sub-Registrar  is  a  notice  as  envisaged  under  the Registration Act.  But the  question is:  whether the public authorities are  expected to  go on  making enquiries in the Sub-Registrar’s office  as to  who would be the owner of the

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property? Reasonable belief, after due enquiry, contemplated under Section  38(1)(i) would  envisage that the persons who are reputed  to be known as owners of the immovable property which was  proposed to  be acquired  after  the  Scheme  was approved by  the Government,  are the  actual owners  of the property. It is now settled law that public functions are to be  discharged   through  its   officers  and  if  there  is delectation on their part in the performance thereof and the public inconvenience is enormous, the Court always considers the procedure  to be directory. It has always considered, by catena of  decisions of  this Court,  such a procedure to be directory. It  it were  a case  where a  reputed owner whose name has  already been  entered in the Municipal records and has  paid   the  municipal   taxes  over  a  period  to  the Municipality of  the Gram  Panchayat, as  the case  may  be, necessarily there  would be  scope for  the  authorities  to reasonably believe,  after due enquiry, that he would be the owner. If  they derelict  in making  such enquiry or serving the notice,  necessarily it  may be held that its failure to get the  notice served  on the owner, who was believed to be the owner  of the  property, for  the proposed  acquisition, vitiates the  acquisition made  under the Schedule read with Section 59  of the  Act. But if in a short interregnum there were successive  sales and  transfer of the land, the public authorities are  not expected  to go  on making enquiries in the Sub-Registrar’s  office as  to who would be the owner of the  immovable   property  proposed   to  be  acquired.  The principle that  registration is  constructive notice  has no application to such a situation.      The ratio of the full Bench of the High Court of Punjab & Haryana  in Jodh  Singh Vs.  Jullundhur Improvement  Trust [AIR 1984  (P&H) 398]  is unexceptionable,  but it has to be considered in  the backdrop  of the  facts in each case. The Division Bench  of the  High Court in Pt. Ram Parkash & Anr. Vs. Smt.  Kanta Suri  [1985 PLJ  371] has  not laid  the law correctly. We,  therefore, hold  that the  failure to  serve personal notice  on the  appellants  does  not  vitiate  the proceedings  for   acquisition  initiated  pursuant  to  the approved Scheme.      It is then contended that the acquisition was mala fide since the  Municipality itself  had,  on  earlier  occasion, proposed for  acquisition and  had dropped the same. We find no substance  in the  contention. There  are  two  statutory authorities functioning,  one under  the Act  and the other, the Municipality. When the statutory authority has initiated the action,  necessarily the  Municipality has  to drop  the proceedings.  Therefore,   it  cannot   be  said   that  the acquisition was  mala fide.  That apart, there is no finding recorded by  the courts  below in the behalf. The High Court also has  put out  the case  on the principle that unless in the circumstances  the respondent  proves prejudice  in  his case, discretionary relief for injunction cannot be granted. All the  three courts  refused to  grant injunction  to  the appellant restraining  the authorities  from  enforcing  the Scheme  duly   framed.  The   injunction  is   a  matter  of discretion. When  the authorities have been implementing the Scheme for the benefit of the public of the town, the courts below have  rightly refused  to exercise discretion to grant injunction and  have not committed and manifest error of law for correction  by this Court. Moreover, the maintainability of suit  under Section  9, Code  of Civil Procedure, 1908 is doubtful. It  is not  necessary to examine the case as it is settled law that such suit is not maintainable.      It is  next contended  that the appellant had purchased the property  for his own occupation to construct houses and

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alternatively gate  could be  opened from the western side - internal road,  without causing  hardship to the appellants. We find  no force  in the contention. The Scheme proposed to have direct  access from  the main road, namely, Madan Mohan Malviya Road.  The access  from the road on the western side of the  stadium would create traffic hazards and, therefore, the Scheme  was rightly  framed for providing entry into the main gate.  We have  seen the plan. The Scheme has taken the property of  minimal dimension rather than the large area in the locality.  Under these  circumstances,  the  Scheme  was properly framed  by the  Government for  providing access to the Guru Nanak Stadium.      It is  then contended by Shri Sehgal that the appellant had purchased the property for residential purpose and he is deprived of  his right for his residence in the locality. In view of  the  fact  that  competing  public  interest  would outweigh the  personal interest  of the  appellant, we think that he  could be  suitable accommodated  in  any  available housing  Schemes  taken  up  by  the  respondent-Trust.  The respondent-Trust, therefore,  is  directed  to  provide  any suitable site  of  an  extent  of  250  sq.yds  as  per  the prevailing reserved price.      This appeal  is accordingly  dismissed with  the  above observations. No costs.