Akhara Brahm Buta Amritsar vs State of Punjab

S.S. Sodhi, J.

The controversy here relates to 51 Kanals and 14 Marlas of land belonging to the petitionerAkhara Brahm Buta, Amritsar. This Akhara is said to be a religious and charitable institution of the Udasin sect. The said land was included in the Scheme known as the Ajnala Road Development Scheme, framed by the Improvement Trust, Amritsar under the provisions of the Punjab Town Improvement Act, 1922 (hereinafter referred to as `the Act''). The Punjab Government accorded sanction to this Scheme under section 41 (1) of the Act on February 25, 1964.

On March 26/27, 1965 there was an agreement between the petitioner and the Trust with regard to the said 51 Kanals and 14 Marlas of land whereby the Trust undertook to exempt 12 Kanals out of this land from the purview of the Scheme and for the remaining land, the petitioner agreed to accept compensation at the rate of Rs. 2/ per square yard. This agreement was thereafter given effect to by the Land Acquisition Collector in his award of March 29, 1965.

The Ajnala Road Development Scheme was, however, quashed by this court on January 3, 1966 in Civil Writ Petition No. 2053 of 1965 and this decision was later also upheld in appeal by the Supreme Court on November 17,1971.

The earlier Scheme having been quashed, a fresh Scheme was framed by the Trust, covering an area of 323 acres which, again, included the 51 Kanals and 14 Marlas of land of the petitioner, referred to above. Notice regarding this new Scheme as required by section 36 of the Act was published on January 21, 1972 and on December 18, 1972 the Scheme was notified under section 41 of the Act.

The petitioner raised objections to the acquisition of their land by pressinginaid the agreement of March 26/27, 1965 and claiming thereby the exclusion of 12 Kanals of land from the purview of the Scheme in terms of this agreement. In the alternative, compensation at the rate of Rs. 150/ per square yard was asked for. The Land Acquisition Collector did not, however, accept this objection and by his award of October 3, 1973, (Annexure P.1), proceeded to award compensation for the entire land of the petitioner at the rate of Rs. 8/ per square yard.

The award of the Land Acquisition Collector (Annexure P.1) was challenged by the petitioner in Civil Writ Petition No. 4229 of 1973 and A.S. Bains, J. following the precedent of Atam Nagar Cooperative House Building Society Limited, Ludhiana v. State of punjab and others, 1979 P.L.J 472, directed the Trust by his order of March 7, 1979 (Annexure P.2) to give effect to the undertaking given by it on March 26/27, 1965 and to implement it in accordance with law.

A number of representations are said to have been made by the petitioner thereafter to the Trust, to implement the directions contained in the above order and when no action was taken thereon, a petition, being Contempt Petition No. 150 of 1979 was filed by the petitioner against the Trust.This was disposed of by R.N. Mittal, J., on December 6, 1979 by his order (Annexure P.4) which reads as under:

"Mr. Mattewal has stated that the Trust wants to comply with the order dated 7.3.1979 passed by Bains, J. and it has written a letter to the petitioner to select 12 Kanals of land out of the acquired land and in accordance with the agreement the counsel requests for an adjournment to finalise the matter.Adjourned to 5.2.1980. At this stage, Mr. Palli states that in view of the statement of Mr. Matewal, he does not press the petition. It is consequently dismissed as such".

According to the petitioner again no action by the Trust followed. A representation was then addressed to the State Government, but, that too, did not evoke the necessary action. The petitioner was then constrained to file another petition for contempt, being Contempt Petition No. 68 of 1980, this petition being against the Trust, as also the State of Punjab.

During the hearing of the contempt petition, referred to above, a statement was made by the counsel for the Trust, that papers relating to the exemption of 12 Kanals of land belonging to the petitioner from the purview of the Scheme had been forwarded to the State Government. Later, the Court was, however, informed that, by its order of January 28, 1981, the State Government had decided not to exempt the said 12 Kanals of land from the operation of the Scheme. The contempt petition was thereafter dismissed and the rule discharged by G.C.Mital, J. by his order of January 11, 1982. (Annexure P.8), holding that the Trust had done what it was required to do, both under the agreement of March 26/27, 1965, as also the order of this Court of March 7, 1979 (Annexure P.4) and as regards the State Government, no contempt was found to have been committed by it as no direction or mandate had been issued against the State Government in the matter. In dismissing this petition, it was however, observed "whether the Akhara is entitled to a writ of mandamus against the state for deletion of 12 Kanals of land, that matter cannot be gone into in this contempt petition and can arise only in a writ petition whenever a writ of mandamus is claimed against the State Government.

It is in this background that the present writ petition came to be filed by the petitioner, seeking to impugn thereby the order of the State Government of January 28, 1981 (Annexure P.7) to the effect that the Government had decided that no land of the petitioner acquired for the Ajnala Road Development Scheme, be exempted. A writ of mandamus was also sought to direct the State Government to exempt 12 Kanals of this land from the operation of the Scheme.

The agreement of March 26/27, 1965, referred to above, constitutes the foundation of the petitioner''s claim for the relief sought. The point canvassed by Mr. Hira Lal Sibal, counsel for the petitioner being that the authority competent to grant the exemption in question, was the Trust and in view of the order of A.S. Bains, J. in Civil Writ 229 of 1979 (Annexure P.2), it was incumbent upon the Trust to give effect to its undertaking contained in the agreement and this order, he contended, was also binding upon the State Government it being a party thereto. Mr. Sibal went further and sought to invoke the principle of promissory estoppel in this behalf. This is indeed an untenable stand and thus of no avail to the petitioner.

The Act clearly provides, by virtue of the provisions of section 41 thereof, that the power to sanction a Scheme, whether with or without modifications vests entirely with the State Government. Indeed, the State Government may refuse to sanction it or may return the scheme for reconsideration.The Trust, on the other hand, is not invested with any such authority. The power conferred upon the Trust by section 40 of the Act, being merely to apply to the State Government for sanction of the Scheme with such modifications, if any, as it may deem appropriate. The Trust, is, however, empowered to abandon the Scheme, but now, after the proviso added to section 40 by Punjab Act 7 of 1974, that too can be done only with the prior approval of the State Government.There can thus be no manner of doubt that the Trust was not competent to exempt any part of the land of the petitioner falling within the scheme from the operation thereof. All that the Trust could do and did in fact do, was, to apply to the State Government to modify the Scheme framed so as to exclude the said 12 kanals of land of the petitioner from operation of the Scheme and in doing so, the Trust also carried out the direction imposed upon it by the order of this Court in Civil Writ 4229 of 1979 (Annexure P.2). It may be mentioned here that even in the Atam Nagar Cooperation House Building Society''s case (supra), it was held that exemption in such cases has to be granted by the State Government and not the Trust.

As regards the State Government, it is pertinent to note, that, it was not a party to the agreement in question and equally relevant here, is the fact that no direction was issued by this Court to the State Government requiring it to do anything in the matter. No question of promissory estoppel can thus arise in such a situation.

The plea that the State Government being a party to Civil Writ 4229 of 1979 was also bound by the directions contained therein, on the principle that even a proforma defendant is bound by the rule of resjudicata, as laid down in Gita Ram Kalsi v. Prithvi Singh and others, 1956 PLR 200, is equally without merit. The direction contained in the order of A.S. Bains, J. (Annexure P.2) was clear and exclusive to the Trust, in no way aimed at or required to be implemented by the State Government. A circumstance which renders inapplicable the authority in Gita Ram''s case (supra) to the present case.

Finally, as a measure of last resort Mr. H.L. Sibal sought the quashing of the Scheme by seeking to invoke the ratio of the decision of the Full Bench of this court in Radhey Sham Gupta v. State of Haryana, 1982 P.L.R. 743. In dealing with delay in the finalisation of proceedings in land acquisition cases, it was observed; " If it can be established beyond cavil that the real motivation behind the acquisition was not any specific public purpose and its expeditious execution but was a mere ruse to peg down the prices by an issuance of notification under section 4 and thus holding the citizens to ransom for years at the whim and caprice of the State to finalise the acquisition proceedings when it chooses (if at all it is so done) is clearly a factor for establishing the colourable exercise of power. It must, therefore, be held that unexplained inordinate delay is certainly a starkly relevant factor if not a conclusive one for determining the colourable exercise of power or otherwise in the context of proceedings under the Act."

The implementation of the Scheme in the present case has no doubt been delayed, but the circumstances in which it occurred clearly do not bring it within the ratio of Radhey Sham Gupta''s case (supra). No colourable exercise of power or lack of bona fides on the part of the respondents can be attributed as the cause for such delay.

For the foregoing reasons, there is no warrant for granting to the petitioner the relief claimed. This writ petition is accordingly hereby dismissed. In the circumstances, however, there will be no order as to costs.