Hari Swarup, J. - (1.) CERTAIN petitioners have challenged through the present writ petition the validity of the Aliganj Street and City Expansion Scheme, an improvement scheme under the Nagar Mahapalika Adhiniyam. Another petition was filed earlier by some other persons in which the same scheme was challenged on various grounds, Learned counsel for the petitioners has not taken us over again the same grounds. We take it that he has argued those grounds and our judgment on those points is the same as is contained in our judgment in Writ Petition No. 137 of 1974, Mahabir Singh Kotwali v. Nagar Mahapalika LKO.
(2.) THE first contention is that the declaration having not been made within the time limit fixed by S. 4 (2) of the Land Acquisition (Amendment and Validation) Act, 1967, Act No. 13 of 1967, the whole proceedings had become void and the scheme frustrated. Sub-s. (2) of S. 4 reads as under:- "Notwithstanding anything contained in clause (b) of sub-sec. (1), no declaration under S. 6 of the principal Act in respect of any land which has been notified before the commencement of the Land Acquisition (Amendment and Validation) Ordinance, 1967, under sub-s. (1) at S. 4 of the principal Act, shall be made after the expiry of two years from the commencement of the said Ordinance." THE contention of the learned counsel is that in view of this provision, no declaration could be published under S. 6 of the Land Acquisition Act beyond two years from the commencement of the Act viz., 20th January, 1967. THE facts relevant for the purpose are as follows: THE scheme was sanctioned under S. 360 by the Nagar Mahapalika but as it required further sanction by the State Government, it went to the State Government and the final order sanctioning the scheme was passed on 29th May, 1967. THE publication of this declaration under S. 363 of the Nagar Mahapalika Adhiniyam was made on 16th December, 1967. THEre was some error in this notification and accordingly in supersession thereof another notification was published on April 26, 1969. As the amendment Act of 1967 had come into force on 20th January, 1967, this publication was beyond two years of the date of the coming into force of the Act. THE contention of the learned Advocate General, however, is that sub-sec. (2) of S. 4 of the Act No. 13 of 1967 contemplates not the publication but only the declaration to acquire the land under sub-sec. (1) of S.6 of the Land Acquisition Act. Annexure A-2 is the document which shows the declaration that was made by the State Government in pursuance of the requirement of sanction under S. 361 of the Adhiniyam. Section 360 of the Nagar Mahapalika Adhiniyam provides:- "The Mahapalika shall.....take such scheme into consideration together with any objection or representation received or made under Ss. 367 and 358 and the recommendation of the Development Committee under S. 359 and shall either abandon the scheme or sanction the scheme with such modifications, if any, as it may consider necessary; Provided that in the case of a scheme of the estimated cost of over Rs. 10,00,000 the sanction of the State Government shall also be obtained." The scheme is of the estimated cost of much more Rs. 10,00,000. The order of the State Government dated May 29, 1967 reads as under:- "With reference to the correspondence resting with your letter No. T/556/A-C, dated December 16, 1966, on the above subject. I am directed to say that under sub-sec. (1) of S. 361 of the uttar Pradesh Nagar Mahapalika Adhiniyam, 1969 (U. P. Act No. II of 1969), the Governor is pleased to sanction the improvement scheme namely, 'Aliganj Street and City Expansion Scheme of the Nagar Mahapalika, Lucknow at an approximate cost of Rs. 38,86,000.00, as approved by the Chief Engineer, Town and Country Planning Department vide his letter No. 1612/23 (LAD) Tp/66, dated April 7, 1966, addressed to you and copy endorsed to Government. The scheme was notified by the Nagar Mahapalika under S. 357 of the said Adhiniyam in Part VIII of the U. P. Gazette dated March 17, 24 and 31, 1962 respectively. 2. I am to request you to take prompt action under sub-sec. (1) of S. 363 of the said Adhiniyam for notifying this fact in the official Gazette under intimation to Government." Thereafter as required by Section 363 of the Adhiniyam and sub-section (2) of Sec. 6 of the Land Acquisition Act the notification was published. This is Annexure A-4. It contains some obvious clerical errors. The revised notification published on 26-4-1969 is Annexure 2. The emphasis by the learned counsel for the petitioners is on the last paragraph of this notification which is as under:- "This notice is in supersession of previous notice under S. 363 (1) of Nagar Mahapalika Adhiniyam, 1969, in respect of the Scheme published in the Uttar Pradesh Gazette and if in other papers." The learned counsel for the petitioners has relied upon sub-paragraph (2) of paragraph 2 of Schedule II of the Adhiniyam which runs as under:- "Subject to the provisions of paragraphs 10 and 11 of this Schedule......... the publication of a notification under S. 363 of this Act in the case of land acquired under any other improvement scheme under this Act shall be substituted for and have the same effect as a declaration by the State Government under S. 6 of the said Act, unless a declaration under the last mentioned section has previously been made and is still in force." In view of this the contention of the learned counsel is that the declaration contained in S. 6 can be only through publication of the notification. We are unable to accept this contention in view of the wordings of Ss. 360 and 363 of the Adhiniyam and sub-secs. (1) and (2) of S. 6 of the Land Acquisition Act. Section 360 of the Adhiniyam is a provision which requires the sanction of the scheme which really means sanctioning the acquisition of land for the purposes of the scheme. This is the intention also of sub-sec. (1) of S. 6 of the Land Acquisition Act. Sub-section (2) of S. 6 of the Land Acquisition Act provides for the publication of the declaration made under S. 360. This is equivalent to S. 363 of the Adhiniyam which provides for publication of the sanction granted under S. 360 (2) of the Adhiniyam. Section 363 reads as under:- "Whenever a scheme is sanctioned whether by the Mahapalika on its own authority or with the sanction of the State Government under the proviso to sub-sec. (1) of S. 360, the fact shall be announced by notification in the official gazette and it shall be incumbent on the Mahapalika, when it sanctions the scheme under its own authority, immediately to inform the State Government and to submit for the information of the State Government the details required by sub-sec. (2) of S. 360." The reference under sub-sec. (2) of S. 4 of Act No. 13 of 1967, in our opinion, is only to the notification under S. 363 and not to S. 360 of the Adhiniyam. In other words it refers only to the notification under sub-sec. (2) of S. 6 and not to the declaration under sub-sec. (1) of S. 6 of the Land Acquisition Act. In Khadim Husain v. State of U. P. (AIR 1976 SC 417) the Supreme Court had the occasion to consider this sub-section and it was held:- "A look at the amendment introduced by S. 4 (2) of the Land Acquisition (Amendment and Validation) Act, 1967, shows that it is the declaration which has to take place within two years of the expiry of the commencement of the Ordinance which came into force on 20th Jan. 1967. In fact, S. 4 (2) of the Amendment Act of 1967, set out above, itself makes a distinction between 'declaration' under S. 6 and its 'notification' under S. 4 of the principal Act. It does not my that no notification under S. 6 of the principal Act can take place beyond the time fixed. The prohibition is confined to declarations made beyond the specified period." We have thus to see if the declaration which was made under sub-sec. (1) of S. 6 which was equivalent to S. 360 or 361 of the Adhiniyam was superseded by the notification issued on April 26, 1969. The quotation which we have given from Annexure 2 shows that what was superseded was only the publication of the declaration of the sanction and not the sanction itself. The earlier part of the notification also does not show that a fresh declaration had been made. The whole document shows that the declaration or the sanctioning of the scheme had remained the same, only the notification or publication thereof was being made afresh. It thus only superseded the publication of the declaration made on 16-12-1967 and not the declaration made under S. 360 (1) of the Adhiniyam. In this view therefore sub-s. (2) of S. 4 of Act 13 of 1967 has no applicability. The scheme cannot thus be held to have been hit by that notification or to have become invalid because of it.
(3.) THE other argument raised by the learned counsel for the petitioners is based on S. 350 (1-A) of the U. P. Nagar Mahapalika Adhniyam which reads as under:- "THE said resolution shall specify the time-limit for the execution of the schemes, which may be extended by the Development Committee by resolution from time to time: provided that in the case of a scheme notified before the commencement of the U. P. Nagar Mahapalika (Amendment) Act, 1972 such time-limit, if not already specified, shall be specified by a fresh resolution of the Development Committee not later than one year after the commencement of the said Act: "Provided further that such time-limit, including extensions, if any, shall in no case exceed twenty years from the date of notification of the scheme under S. 363." THE contention is that because the Development Committee had not passed any resolution fixing a time-limit, as contemplated by sub-sec. (1-A) of S. 350, the scheme must be deemed to have become dead. It as been stated as a matter of fact in the counter-affidavit that the time-limit had been fixed by the State Government's order dated September 9, 1969 (Annexure A-10). THE relevant portion whereof runs as under:- "....., it should be ensured that awards in respect of the entire land falling in the scheme are declared latest by April 25, 1974." This is contained in the letter of the State Government written to the Collector of the District. THE subsequent consequent order is to the following effect: "Necessary details of the Nazul land and other land falling in the scheme should be obtained from the Mukhya Nagar Adhikari, Mahapalika, Lucknow at once, and it should be ensured that awards in respect of the entire land falling in the scheme are declared latest by April 25, 1974." In view of these orders which have been passed, it cannot be held that no time-limit has been fixed for the execution of the scheme. THE scheme had under the Adhiniyam to be finally sanctioned by the State Government and it had in fact sanctioned it, the fixation of time limit by it cannot therefore be held to be illegal. Even if there may be technical defect that the resolution by the Development Committee had not been passed, the same, in our opinion, cannot be enough to frustrate the scheme or to make it dead. The provisions of S. 350 (1) are only directory and not mandatory in character. It is obviously so because no penalty has been provided for not passing the resolution. In Remington Rand of India Ltd. v. The Workmen (AIR 1968 SC 224). The following passage from State of Uttar Pradesh v. Babu Ram Upadhya, (AIR 1961 SC 751 at p. 765) was reiterated: "For ascertaining the real intention of the Legislature the court may consider, inter alia, the nature and the design of the statute, and the consequences which would follow from construing it one way or the other, the impact of other provisions whereby the necessity of complying with the provisions in question is avoided, the circumstances, namely, that the statute provides for a contingency of the non- compliance with the provisions, the fact that the non-compliance with the provisions is or is not visited by some penalty, the serious or trivial consequences that flow therefrom, and, above all, whether the object of the legislation will be defeated or furthered." Under the Adhiniyam the Land Development Committee has been assigned, the functions only for the furtherance of the scheme. It has not been given any power to nullify, frustrate or abandon the scheme. The power of abandoning the scheme has been reserved for the Nagar Mahapalika. Under S. 5 of the Adhiniyam the Mahapalika and the Development Committee are separate authorities. The Development Committee is only a committee of the Mahapalika and it could not be the intention of the Legislature to give power to the Land Development Committee to frustrate a scheme by its inaction as the improvement schemes are framed for the benefit of the people. The provision must, therefore, be held to be only directory and not mandatory. Further, the title of the petitioner is lost by the acquisition of land by the sanctioning of the scheme under S. 360 of the Adhiniyam and publication thereof under S. 363 of the Adhiniyam. The rights cannot come back to the petitioners thereafter unless the scheme is abandoned under S. 367-A of the Adhiniyam. In these circumstances the omission of the Land Development Committee in passing the resolution cannot be deemed to be fatal to the scheme. We cannot, therefore, hold that the petitioners have a subsisting right in the land so as to entitle them to get the writ of a mandamus for the return of their land.;