Back
1996 Supreme(P&H) 923
PUNJAB & HARYANA HIGH COURT
R.S.Mongia and K.K.Srivastava JJ.
Harbans Singh And Ors.
Versus
State Of Punjab
Civil Writ Petition No. 11993 of 1995,
Decided On : MAY 31, 1996
The publication of the notification under Section 36(2)(a) of the Punjab Town Improvement Act, 1922, in the newspapers and in the Official Gazette is mandatory, but its frequency is not.
Headnote:
PUNJAB TOWN IMPROVEMENT ACT, 1922 - SECTIONS 36, 38, 40 - NOTIFICATION - PUBLICATION - SERVICE OF NOTICE - COMPLIANCE - ACQUISITION OF LAND - SCHEME - SANCTION - VALIDITY - CHALLENGE - WRIT PETITION - DISMISSAL.
Fact of the Case:
The petitioners challenged the notifications issued by the Phagwara Improvement Trust for the acquisition of land for a developmental scheme, alleging non-compliance with the provisions of the Punjab Town Improvement Act, 1922, and arbitrariness and mala fides in the acquisition process.
Finding of the Court:
The Court held that the publication of the notification under Section 36(2)(a) of the Act in the newspapers and in the Official Gazette is mandatory but its frequency is not. The Court also held that the provisions of Section 38 of the Act are mandatory and that the respondent-Trust had complied with the said provision by issuing a registered notice to petitioner No. 2 Surjit Singh at his address in England. The Court further held that there was no material on record to show that the petitioners of C. W. P. No. 11994 of 1995 were the owners of the land sought to be acquired under Scheme No. 7 and that, therefore, no notice was necessary to be issued to them. The Court also held that the respondent-Trust had obtained a No Objection Certificate from the State Level Land Acquisition Board and that the action of the respondent-Trust was strictly in accordance with the provisions of the Act and was fair and not arbitrary or discriminatory.
Issues: 1. Whether the publication of the notification under Section 36(2)(a) of the Act in the newspapers and in the Official Gazette is mandatory and whether its frequency is also mandatory. 2. Whether the provisions of Section 38 of the Act are mandatory and whether the respondent-Trust had complied with the said provision by issuing a registered notice to petitioner No. 2 Surjit Singh at his address in England. 3. Whether there was material on record to show that the petitioners of C. W. P. No. 11994 of 1995 were the owners of the land sought to be acquired under Scheme No. 7 and whether, therefore, a notice was necessary to be issued to them. 4. Whether the respondent-Trust had obtained a No Objection Certificate from the State Level Land Acquisition Board. 5. Whether the action of the respondent-Trust was strictly in accordance with the provisions of the Act and whether it was fair and not arbitrary or discriminatory.
Ratio Decidendi: 1. The publication of the notification under Section 36(2)(a) of the Act in the newspapers and in the Official Gazette is mandatory but its frequency is not. 2. The provisions of Section 38 of the Act are mandatory and the respondent-Trust had complied with the said provision by issuing a registered notice to petitioner No. 2 Surjit Singh at his address in England. 3. There was no material on record to show that the petitioners of C. W. P. No. 11994 of 1995 were the owners of the land sought to be acquired under Scheme No. 7 and, therefore, no notice was necessary to be issued to them. 4. The respondent-Trust had obtained a No Objection Certificate from the State Level Land Acquisition Board. 5. The action of the respondent-Trust was strictly in accordance with the provisions of the Act and was fair and not arbitrary or discriminatory.
Final Decision: Both the writ petitions were dismissed.
K.K.Srivastava, J.
1. This order of ours will dispose of Civil Writ Petitions No. 11993 and 11994 of 1995. In both the writ petitions the notifications (annexures P1 to P8) issued by respondent No. 2 - Phagwara Improvement Trust, Phagwara are sought to be quashed and along with the Residential Housing Scheme (annexure P9) is also sought to be quashed as being illegal, unjust, cryptic, arbitrary, an act of colourable exercise of power, mala fide and ultra vires the provisions of Punjab Town Improvement Act, 1922 (for short, to be referred as the Act of 1922).
2. The facts common to both the writ petitions may be noticed as under. The Phagwara Improvement Trust Phagwara-respondent No. 2 passed a resolution to develop a Developmental Scheme No. 7. The total area which was proposed to be acquired, was 166 Kanals 6 Marlas (13.80 Acres). A notification under Section 36 of the Act 1922, which is equivalent to a notification under Section 4 of the Land Acquisition Act, 1894 (for short the Act 1894) was published in the Daily Newspaper Nawan Zamana on 21.6.1993 (annexure PI), 28.6.1993 (annexure P2) and 5.7.1993 (annexure P3). The notification was also published in the Official Gazette on 2.7.1993 (annexure P4), 9.7.1993 (annexure P5) and 16.7.1993 (annexure P6). These notifications were published in the newspaper and Official Gazette as per requirement of Section 36(2)(a) of the Act 1922. Thereafter, notices as per requirement of Section 38 of the Act 1922 were served on the persons referred therein. The respondent proceeded with the scheme and issued notification under Section 40 Sub-section (3) of the Act 1922 in the Punjab Government Official Gazette that an application had been submitted to the State Government under Section 40(1) of the Act for the grant of approval for land acquisition. This notification was issued on 17.6.1994 vide annexure P7. The State Government vide notification dated 17.6.1994 accorded sanction to the developmental scheme of respondent No. 2 under Section 24 read with Section 28(2) Sub-sections (1), (2), (3), (4), (5), (6), (7), (8), (9), (10), (11) and (12) of the said Act for an area measuring approximately 15 acres. The relevant notification was issued in pursuance of the provisions of Section 42(1) of the said Act (a copy of the same has been annexed as Annexure P8). By a notice dated 1.3.1995 published in the daily newspaper The Tribune the respondent-Phagwara Improvement Trust (Annexure P8). By a notice dated 1.3.1995 published in the daily newspaper The Tribune the respondent-Phagwara Improvement Trust, Phagwara invited applications for residential plots under the aforesaid new developmental scheme No. 7 Tagore Nagar for three sizes of plots measuring 250 Sq. Yds., 200 Sq. Yds. and 100 Sq. Yds. and prescribed annual income limits against each categories of size of the plots and also the advance amount to be deposited.
3. The petitioners have challenged the notifications, referred to above, on the following grounds:
(1) Section 36 of the Act makes it incumbent upon the respondent-Trust to publish the notification for three consecutive weeks in the Punjab Government Gazette as well as in the newspaper. As per the requirement scheme can only be initiated after the publication of the notification in the Government Gazette. The publication in the newspaper is required to be made after the publication of the notification in the Government Gazette whereas in the present case the publication in the newspaper was made prior to the publication in the Government Gazette i.e. on 21.6.1993, 28.6.1993 and 5.7.1993 in the daily newspaper Nawan Zamana and the notifications in the Official Gazette were published on 2.7.1993, 9.7.1993 and 16.7.1993 which is in total violation of the mandatory requirements of Section 36 of the Act. The acquisition proceedings cannot be sustained on this ground alone.
(2) As per Section 38 of the Act a duty has been cast upon the Trust to serve the notice of the proposed acquis
