Decided on October 10,1990

Phagwara Improvement Trust Appellant

Referred Judgements :-


Cited Judgements :-



- (1.)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 fact out of which these appeals have arisen, are as follows:
The appellant Trust prepared a development scheme under Section 24 read with S. 28 of the Punjab Town Improvement 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 9/04/1976 a notice under S. 36 of the Act was published in daily Tribune inviting objections within 5/05/1976. This notice was published in the three consecutive weeks of the said newspaper dated April 9, April 16 and 23/04/1976. The very notice of the said scheme was also published under S. 36 of the said Act in the Punjab government Gazette on three consecutive weeks i. e. May 7, May 14 and May 21, 1976 inviting objections till 5/05/1976 against the scheme framed. In accordance with the provisions of S. 38 of the said Act the Trust also served notice on every person who was occupier or owner of any immovable 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 S. 36, in order to enable the owners and occupiers of such premises to file objections to such acquisition and to state their reasons in writing within a period of 60 days of service of the notice. After completion of the acquisition formalities, a notification under S. 42 of the said Act was published on 26/03/1979. Respondent 2 and others assailed the appellant's scheme notified under the Act in C. W. P. No. 2561 of 1979 and C. W. P. Nos. 4075, 3615, 3654 of 1981 on the ground that they could not file objections against the scheme in terms of S. 36 of the Act till 5/05/1976 as the notification was published in the Punjab government Gazette on May 7, May 14 and M 21/05/1976. These writ petitions were allowed by order dated 25/02/1982 and the sanctioned scheme notified under S. 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 S. 36 of the said Act and proceed further in the matter in accordance with law. It is against this order the L. P. A. Nos. 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 S. 36 of the Act were mandatory and as it had not been complied with in the present cases, the illegality of noncompliance of the mandatory provisions contained in S. 36 would 756 not stand cured under S. 101 (1 (d) of the Act. Hence the letters patent appeals were dismissed.

(2.)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 respondent 2 and others has very strenuously contended that the provisions of S. 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 statement inviting objections. Though the notice was duly published in the newspaper Tribune for three consecutive weeks on April 9, 16 and 23, 1976 notifying the date for filing objections till 5/05/1976 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. 5/05/1976. 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 Singh v. Jullundur Improvement Trust, Jullundur. This case was decided by the full bench of the High court of Punjab and Haryana as to whether issuance of a notification under Ss. (1 of S. 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 S. 36, 38 and Ss. (1 of S. 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 impliedly necessary to enable him to bring to the notice of the concerned authority his objections against the acquisition of his property. Hence such provisions as provide for notice, raising of objections and personal hearing in support of the objection would be mandatory in character. "

(3.)In that case a notice under S. 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 oversight, 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. 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 Ss. (2 of S. 42 of the Act. It was in that context the above observation was made by the full bench.

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