- (1.) The Ludhiana Improvement Trust, Ludhiana (hereinafter referred to as 'the Trust') published a notice under Section 36 of the Punjab Town Improvement Act, 1922 (hereinafter called 'the Act') dated March 6, 1961, in the Punjab Government Gazette, dated March 17, 1961, in respect of expansion scheme prepared by the Trust under Section 24 read with Section 28 of the Act for an area measuring approximately 216 acres situated in village Rajpura, tehsil and district Ludhiana. Subsequently, it passed a resolution, dated May 15, 1971, for renotifying a development scheme in respect of land measuring 15 acres in that village. This area had previously been notified for acquisition and was subsequently denotified. Subsequently, it amended the above resolution, dated May 15, 1971, by resolution No. 26 dated July 25, 1972, and increased the area in the development scheme from 15 acres to 100 acres. This scheme was named as "100 acres development scheme on Rajpura Road". A notice under Section 36, dated July 27, 1972 in respect of the aforesaid development scheme was published in the newspaper, dated August 1, 1972. The petitioners filed objections under Section 38(2) of the Act against the said scheme on October 3, 1972. The Trust sent an application under Section 40(2) of the Act to the State of Punjab for sanctioning of the scheme. The State Government issued notification, dated September 18, 1973, under Section 41(1) of the Act and sanctioned the aforesaid development scheme. The land of the petitioners also forms part of the said scheme. A notice under Section 9 of the Land Acquisition Act was served on the petitioners on February 5, 1974. The petitioners have challenged the notice, dated July 27, 1972, and notification, dated September 18, 1972. The writ petition has been contested by respondents 1 and 2.
(2.) The first contention of the learned counsel for the petitioners is that the Trust made an application to the State Government for sanctioning acquisition part of the scheme. The State Government under Section 41(1) of the Act also sanctioned only that part of the scheme by which the land was to be acquisitioned. The learned counsel submits that unless the scheme as a whole was sanctioned, the land of the petitioners could not be acquired by the Trust.
(3.) I have heard the parties at considerable length. Mr. Shiv Singh, Chairman of respondent No. 2, while forwarding the papers under Section 40(1) of the Act, in his letter, dated January 10, 1973 (Annexure GG/1) had stated as follows :- "In accordance with the provisions of Section 40(1) of the Punjab Town Improvement Act, 1922 , I am sending you herewith the above noted scheme through this letter for sanctioning the acquisition part." In the end, the Chairman also mentioned that he trusted sanction to the scheme would be accorded at a very date. The Government vide notification, dated September 18, 1973, sanctioned the scheme regarding acquisition of land only. The relevant portion of the notification is as follows :- "In exercise of the powers conferred by Sub-section (1) of section 41 of the Punjab Town Improvement Act, 1922 , and all other powers enabling him in this behalf, the Governor of Punjab is pleased to sanction the Development Scheme styled as 100 Acres Scheme on Rajpura Road (Acquisition of land only) framed by the Ludhiana Improvement Trust (hereinafter called the Trust) under Section 24 read with Section 23(2) of the said Act for an area measuring approximately 40.46 Hac. (100 acres) within the boundaries of the Municipal Committee, Ludhiana and set forth in the sub-joined Schedule." In Paragraph 9 of the return, the State of Punjab has admitted that respondent No. 2 submitted an application in accordance with the provisions of Section 40(2) of the Act to the State Government for sanction of acquisition part of the development scheme styled as "100 Acres Scheme on Rajpura Road." Again in sub-paragraphs (v) and (vi) of paragraph 13, the (ix) of aforesaid position has been affirmed by it. In sub-paragraph (vii) to the aforesaid paragraph, the State has further stated that the impugned notification, dated September 18, 1973, sanctioning the acquisition part of the development scheme in question has been issued in accordance with law. Thus, it is clear from the notification and the return that the State Government only sanctioned the acquisitioning part of the scheme and not the scheme as a whole. Mr. S.K. Pipat the learned counsel for the State and Mr. R.K. Aggarwal, the learned counsel for the Trust, have vehemently argued that the 'acquisition of land only' in the notification is a surplus age and in fact the State Government had sanctioned the scheme as a whole. I regret my inability to accept this contention of the learned counsel for the respondents. If the notification is read along with the return, it is clear that the scheme was sanctioned regarding the acquisition part only. The letter, dated January 10, 1973 (Annexure GG/1) written by the Chairman of the Trust to the Government further supports my view. The learned counsel for the respondents have referred to Civil Writ No. 3687 of 1973 (Arjan Singh v. State of Punjab and others), decided on March 22, 1974, in which a learned Judge of this Court had held regarding a similar notification that the same could be taken both for according sanction to the expansion scheme as well as for acquisition. The facts of that case are distinguishable from those of the present one. In that case, it appears, the State Government did not admit in the return the facts which have been admitted in the present case. In the circumstances, the observations in that case are not applicable to the present case. A reading of Sections 40, 41 and 42 shows that the Government has to sanction the scheme as a whole. It cannot sanction the acquisition part of the scheme and defer the sanctioning of the scheme for a later date. On the basis of sanction of the acquisitioning part, no requisition can be effected. I, therefore, uphold this contention of the learned counsel for the petitioners. Mr. R.K. Aggarwal then argued that in view of Sub-section (2) of Section 42 of the Act, the petitioners cannot challenge the scheme as a notification under Sub-section (1) in respect of the scheme has been published. Sub-section (2) says that a notification under Sub-section (1) in respect of any scheme shall be conclusive evidence that the scheme has been duly framed and sanctioned. I have examined the contention of the learned counsel for the respondents but do not find any substance in it. In case, the scheme is invalid, it cannot be held that the Court cannot strike down the same. In this view, I am fortified by a judgment of this Court in S. Harcharan Singh and others v. Shri Shashpal Singh and others, 1966 CurLJ 352 wherein it is observed by the learned Bench that if there is no valid scheme, it is certainly open to this Court in exercise of its writ jurisdiction to strike down that merely purports to be a scheme under the Act. Section 42 of the Improvement Act cannot override the constitutional safeguard contained in Article 226.;