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PUNJAB & HARYANA HIGH COURT
D.S.Tewatia, K.S.Tiwana and S.S.Sodhi JJ.
Prof.Jodh Singh
Versus
Jullundur Improvement Trust, Jullundur
Civil Writ Petition No. 2131 of 1976,
Decided On : APRIL 27, 1984
Whether issuance of a notification under sub-section (1) of Section 42 of the Punjab Town Improvement Act, 1922 (hereinafter referred to as the Act) would bar a challenge to the validity of the scheme or the governmental 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.
Fact of the Case:
The Trust prepared a street scheme the validity whereof is under attack relating to an area measuring approximately 2.5 acres for the Bastian Road near Adda Guzan, Jullundur. Land measuring 1 kanal 10 Marlas belonging to the petitioners on which 8 shops have been constructed by them has been included in the said scheme. Originally, a street scheme in respect of that very land had been prepared by the Trust in 1969, which, however, was dropped in 1971. The petitioners thereafter sought permission to construct 8 shops on their said land and in that regard submitted their plan of construction to the Municipal Committee, Jullundur on 3rd May, 1972. Their application was forwarded by the Municipal Committee to the Trust, the Chairman whereof returned the papers to the Municipal Committee on 25th May, 1972 with the remarks, "Returned. Since the site does not fall in any of the Trust Schemes, the plan may be dealt with in accordance with the bye-laws." On receipt on the said report the Municipal Committee vide its resolution dated 31st January, 1973, granted permission to the petitioners to construct 8 shops in question and thereafter petitioners constructed those shops.
Finding of the Court:
The Court held that the provisions of sub-section (2) of Section 42 of the Act, which declares that a notification under sub-section (1) of Section 42 in respect of any scheme shall be conclusive evidence that the scheme had been duly framed and sanctioned, does not bar a challenge to the validity of the scheme or the governmental 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. The Court further held that the provisions of sub-section (2) of Section 42 of the Act cannot override the constitutional safeguard contained in Article 226 of the Constitution.
Issues: Whether the 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 governmental 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.
Ratio Decidendi: The Court held that the provisions of sub-section (2) of Section 42 of the Act, which declares that a notification under sub-section (1) of Section 42 in respect of any scheme shall be conclusive evidence that the scheme had been duly framed and sanctioned, does not bar a challenge to the validity of the scheme or the governmental 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. The Court further held that the provisions of sub-section (2) of Section 42 of the Act cannot override the constitutional safeguard contained in Article 226 of the Constitution.
Final Decision: The writ petition is remitted back to be placed before the appropriate Bench for decision on merits in the light of the law laid down in this judgment.
D.S.TEWATIA, J.
1. . This petition is before us on a reference made by one of us (Sodhi, J.) raising a significant question of law as to whether issuance of a notification under sub-section (1) of Section 42 of the Punjab Town Improvement Act, 1922 , (hereinafter referred to as the Act) would bar a challenge to the validity of the scheme or the governmental 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.
2. Though in view of the prestinely legalistic nature of the question posed, it would hardly be necessary to bring within the focus the facts of this case, yet we feel that the real import of the legal question can only be viewed in correct perspective against the background of the facts. Hence these few facts:
The Trust prepared a street scheme the validity whereof is under attack relating to an area measuring approximately 2.5 acres for the Bastian Road near Adda Guzan, Jullundur. Land measuring 1 kanal 10 Marlas belonging to the petitioners on which 8 shops have been constructed by them has been included in the said scheme. Originally, a street scheme in respect of that very land had been prepared by the Trust in 1969, which, however, was dropped in 1971. The petitioners thereafter sought permission to construct 8 shops on their said land and in that regard submitted their plan of construction to the Municipal Committee, Jullundur on 3rd May, 1972. Their application was forwarded by the Municipal Committee to the Trust, the Chairman whereof returned the papers to the Municipal Committee on 25th May, 1972 with the remarks, "Returned. Since the site does not fall in any of the Trust Schemes, the plan may be dealt with in accordance with the bye-laws." On receipt on the said report the Municipal Committee vide its resolution dated 31st January, 1973, granted permission to the petitioners to construct 8 shops in question and thereafter petitioners constructed those shops.
3. The respondent-Trust on 11th Mar., 1974 adopted policy resolution for the framing of the street scheme in question and issued notice under Section 36 of the Act on 20th March, 1974. In that notice reference was to the map prepared in 1968 for the scheme framed in 1969. That to obviously did not reflect any changes map had taken place during the intervening period from 1968 to 1974.
4. Later, a notice under Section 38 of the Act was issued on 8th April, 1974. The petitioners responding to the said notice submitted objections on April 10, 1974. In the return filed on behalf of the Trust it has been 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 objections were neither considered by the Trust nor forwarded to the State Government along with the summary of the objections submitted at the time of sanction for the said scheme.
5. 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. Support for the above contention was sought from Supreme Court decision in Laxmi Chand V/s. Indore-Improvement Trust, Indore, AIR 1975 SC 1303, Division Bench decision rendered in Civil Writ Petn. No. 882 of 1977, on 9th March, 1977 (Bhupindra Flour Mills V/s. State of Punjab) and Harjinder Kaur V/s. State of Punjab, 1983 Rev LR 131. On behalf of the petitioners contention advanced on behalf of Trust was considered to be untenable and they sought support for the above submission from decision rendered by single Judge in Civil Writ Petn. No. 6008 of 1975 (Sarwan
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