N. D. Ojha, J. - (1.) THIS special appeal has been filed against the judgment of a learned Single Judge dismissing a writ petition filed by the appellants chal lenging acquisition of their plots and the assessment of compensation. The Im provement Trust of Allahabad framed a scheme under the U. P. Town Improvement Act. 1919 (hereinafter referred to as the Act). The scheme was known as South Housing Scheme, Part II. The re levant notification under Sections 36 and 42 of the Act were published on 23-6- 1928 and 8-7-1936 respectively. The scheme was being executed in part from time to time and notice under Section 9 of the Land Acquisition Act was issued on 30-8-1961, in so far as the plots be longing to the appellants are concerned. An award was given on 25-9-1961 and a reference in regard to the amount of compensation made to the Nagar Maha palika Tribunal is said to be still pend ing. The compensation, however, was awarded on the basis of the market value of the land in 1928 when the notification under Section 36 was issued. The writ petition was pressed on various grounds. None of them, however, found favour with the learned Single Judge and the writ petition was dismissed. The points urged before the learned Single Judge have been reiterated before us.
(2.) THE first submission made by the counsel for the appellant was that since no action was taken in regard to issue of notice under Section 9 in res pect of the appellants' land from 1936 when the notification sanctioning the scheme was published under Section 42, till the year 1961. the proceedings ini tiated in 1961 were illegal in view of the provisions of sub-section (4) of Sec tion 365 of the U. P. Nagar Mahapalika Adhiniyam, 1959 (hereinafter referred to as the Adhiniyam). It may be mentioned that on the coming into force of the Adhiniyam the proceedings for acquisi tion started under the Act were conti nued under the Adhiniyam by virtue of the provisions contained in Section 577 of the Adhiniyam. Sub-section (4) of Section 365 of the Adhiniyam on which reliance was placed by the learned coun sel before its amendment by the U. P. Nagar Mahapalika (Amendment) Act, 1972 read as follows:- "All acquisition of land and interest in land for an improvement scheme au thorised under this Chapter shall be completed at least up to the stage of making of awards within a period of five years from the date of the notifi cation of the scheme under Section 363 and any land in respect of which the acquisition is not so completed and the owner and occupier thereof shall, cease to be subject to any liabilities under this chapter: Provided that the State Government may in any particular case before the expiry of such period and for reasons to be recorded in writing, extend the period by one year : Provided further that in relation to any improvement scheme notified under Section 42 of the U P, Town Improve ment Act. 1919. or Section 60 of the Kanpur Urban Area Development Act, 1945. this section shall be 20 construed as if for the words "within a period of five years from the date of the notifi cation of the scheme under Section 363", the words "on or before the 31st day of December of 1967" were substituted.'' The aforesaid sub-section (4) was am ended by Section 7 of the U. P. Nagar Mahapalika (Amendment) Act. 1972. The said Section 7 provides: "In Section 365 of the Principal Act in sub-section (4)- (i) After the words 'an improve ment scheme authorised under this chap ter' the words 'other than a bhavi sarak yojana or a riagar prasar yojana' shall be inserted and be deemed always to have been inserted; (ii) For the provisos thereto the following provisos shall be substituted and be deemed always to have been sub stituted namely, (a) In relation to any improvement scheme (other than a deferred street scheme or a town expansion scheme) notified under Section 42 of the United Provinces Town Improvement Act. 1919, or Section 60 of the Cawnpore Urban Area Development Act. 1945, which by virtue of clause (c) of Section 577 may be continued and if it had been initiat ed under this Act. this sub-section shall be so construed as if for the words and figures 'within a period of five years from the date of the notification of the scheme under Section 363' the words and figures, 'on or before the 31st day of December 1973" were substituted: (b) In relation to any improvement scheme notified under Section 363 be fore the commencement of the Uttar Pradesh Nagar Mahapalika (Amendment) Act. 1972 this sub-section shall be so construed as if for the words 'five years' the words 'ten years' were substituted: Provided further that the State Government by general or special order made before the expiry of the said .period of five years, or of ten years, or as the case may be the said period pending on the 31st day of December. 1973 may for reasons to be recorded in writing extend the said period by one year." In the instant case, the award was given on 25-9-1961 and the proceed ings for acquisition cannot, therefore be held to be invalid.
(3.) IT was then urged that the im provement scheme, in so far as the ap pellants' land is concerned was aban doned and, at any rate, should be deem ed to have been abandoned on account of no action having been taken from 1936 to 1961 in furtherance of the said scheme. In this connection reliance was placed upon a letter from the Collector, Allahabad to the Administrator, Im provement Trust, Allahabad, dated 27-5-1955, a true copy of which was filed a? Annexure "AAA" with the supplemen tary affidavit. The relevant portion of the said letter reads: "With reference to your D. O. No 17/111-C dated 19-5-55 I am to inform you that the acquisition proceedings in respect of the properties mentioned in your letter No. 3937/11 (1)W, dated 31-10-53 and letter No. 3033/111 AC, dated Sept. 1, 1953 were started and you were requested to meet the cost of acquisition but neither any reply was received nor any fund was allotted hence the acqui sition proceedings were stopped and the files were consigned on 15-9-54. How ever, the files have now been taken out from Record Room and necessary action for the acquisition is being taken." ;