Phagwara Improvement Trust vs State of Punjab

J. M. Tandon, J.

Madan Lal and other (private) respondents are residents of Phagwara and cosharers in the land on Palahi Road, where they have installed tubewells and built houses and shops. The Phagwara Improvement Trust (hereinafter the Trust) prepared a development scheme under section 24 read with section 28 of the Punjab Town Improvement Act, 1922 (hereinafter the Act) in relation to an area of about 60 acres including the property of the respondents. The scheme was published under section 36 of the Act in Punjab Government Gazette dated 7th, 14th and 21st May, 1976 inviting objections till 5th May, 1976. After the completion of requisite formalities, a notification under section 42 of the Act was published on 26th March, 1979. The respondents assailed the sanctioned scheme noticed under section 42 of the Act in C.W.P. No. 3654 of 1981 on the ground that they could not file objections against the scheme in terms of section 36 of the Act till 5th May, 1976 for the reason that it was published in the Gazette on 7th, 14th and 21st May, 1976. The writ petition was allowed vide order dated 25th February, 1982 and the sanctioned scheme notified under section 42 of the Act was quashed. It was left open for the Trust to publish the scheme under section 36 of the Act afresh and then proceed further in the matter according to law. It is against this order that the present Letters Patent Appeal is directed.

The relevant part of section 36 of the Act reads :

"36. (1) When a scheme under this Act has been framed, the Trust shall prepare a notice stating (i) the fact that the scheme has been framed, (ii) the boundaries of the locality, comprised in the scheme, and (iii) the place at which details of the scheme including a statement of the land proposed to be acquired and a general map of the locality comprised in the scheme may be inspected at a reasonable hours.

(2) The Trust shall (a) notwithstanding anything contained in section 78 cause the said notice to be published weekly for three consecutive weeks in the official gazette and in a newspaper of newspapers with a statement of the period within which objections will be received, and (b) .... .... ...... (3) .... ... ....."

In C.W.P. No. 2131 of 1976 (Prof. Jodh Singh etc. v. The Jullundur Improvement Trust, Jullundur etc.), decided by a Full Bench of this Court on 27th April, 1984, the point whether a notice under section 36 of the Act is mandatory or otherwise was considered and in this context the following observations have been made :

"A look at the provisions of section 36, 28 and subsection (1) of Section 40 would reveal that the said provision besides creating a public duty of publication of the notice under section 36 and serving a notice under section 38 upon the owner/occupier of the immoveable property proposed to be acquired and consideration of objection under subsection (1) of section 40, also conferred rights on the inhabitants to file objections to the scheme and to the acquisition of their property and also right of personal hearing in support of their objection.

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 objections would be mandatory in character.

It was further held :

"For the reasons aforementioned, we hold that the provision of section 36, in so far as it provides for publication of the notice as such and not the frequency thereof, is mandatory in character, because the scheme is prepared for the convenience and welfare of the inhabitants. They are vitally interested in knowing as to what the scheme is. Therefore, the publication of the scheme to bring the same to their notice is vitally essential to enable them to bring their view point regarding the scheme to the notice of the concerned authorities."

It is, thus, clear that the publication of a notice under section 36 of the Act is mandatory though the frequency of the publication thereof is not. According to the Trust, the notice under section 36 of the Act was first published in daily Tribune on 9th, 16th, and 23rd April, 1976, inviting objections till 5th May, 1976. This very notice was published in the Punjab Government Gazette on 7th, 14th and 21st May, 1976. In other words, in the notice under section 36 published in the Gazette on 7th, 14th and 21st may, 1976 the objections were invited till 5th May, 1976. It is obvious that the notice under section 36 published in the Gazette is no notice in the eyes of law. The point for consideration is whether the publication of the notice under section 36 in the daily Tribune on 9th, 16th and 23rd April, 1976 would amount to substantial compliance of the provisions contained therein.

The learned counsel for the Trust (appellant) has argued that it is more likely that the respondents read the newspaper and came to know of the scheme framed under section 24 read with section 28 of the Act. In this context the nonpublication of the scheme in the Gazette is not very material or relevant. The respondents, therefore, cannot make a grievance that the notice was not published in the Gazette in terms of section 36(2)(a) of the Act and, more so, when they did file objections in pursuance of the notice to them under section 38, wherein they did not raise objection about the nonpublication of the noticed under section 36 or the framing of the scheme thereunder. The contention is without merit.

Section 36(2) of the Act specifically provides the mode of publication of the notice. It is obligatory for the authorities to publish the notice under section 36 in the Gazette as also in the newspaper. The publication of the notice under section 36 in the newspaper alone cannot by any stretch of imagination be treated as substantial compliance of the provisions contained therein. No presumption can be raised against the respondents that as a result of the publication of the notice under section 36 in a newspaper they came to know about it. In the absence of the publication of the notice under section 36 in the Gazette it has rightly been held that the mandatory provision contained therein has not been complied with.

The petitioners did not file objections against the scheme under section 36. They admittedly did not assail the framing of the scheme in objections filed under section 38. They could only objection to the proposed acquisition of their property in pursuance for the notice under section 38 and not to the very framing of the scheme under section 36.

The learned counsel for the appellant has argued that assuming that the notice under section 36 of the Act has not been issued, the respondents cannot assail the scheme notified under section 42 of the Act in view of the provision contained in section 101(1)(d) of the Act. Reliance has been placed on The Bangalore Woollen, Cotton and Silk Mills Co. Ltd. Bangalore etc. v. The Corporation of the City of Bangalore by its Commissioner, Bangalore City, AIR 1962 S.C. 562.

The relevant part of section 101 of the Act reads :

"101. (1) No act done or proceeding taken under this Act shall be questioned on the ground merely of (a), (b) and (c) ... ... ...

(d) the failure to serve a notice on any person where no substantial injustice has resulted from such failure, or

(e) any omission, defect, or irregularity not affecting the merits of the case. (2) ... ... ... "

In the Bangalore Woollen, Cotton and Silk Mills Co. Ltd. case (supra), their Lordships examined section 38(1)(b) of the City of Bangalore Municipal Corporation Act, 1949, which reads :

"S. 38. (1) No act done, or proceeding taken under this Act shall be questioned merely on the ground (a) ... ..., (b) of any defect or irregularity in such act or proceeding, not affecting the merits of the case."

It was held that the language of section 38(1)(b) is unambiguous and clear and it validates any defect in any act done or proceedings taken under the Act and makes it immune from being questioned on the ground of any defect or irregularity in such act or proceedings not affecting the merits of the case. Hence where a resolution intending to impose a tax passed by the Municipal Corporation is published in newspapers and is also communicated to those affected by it, the mere failure to notify the final resolution of the imposition of the tax in the Government Gazette as required by section 98(2) is not fatal to the legality of the imposition and is cured by section 38(1)(b),

The ratio of the Bangalore Woollen, Cotton and Silk Mills Co. Ltd. case (supra) cannot be justifiably pressed by the learned counsel for the appellant in support of his argument. The facts of The Bangalore Woollen Cotton and Silk Mills Co. Ltd case (supra) are materially different from the facts of the case under consideration.

The implications of section 101(1)(d) of the Act were examined by the Full Bench in Prof Jodh Singh''s case (supra), decided on 27th April, 1984 and it was held :

" As regards the provisions of section 101 of the Act it may be observed that the said provisions are general provisions providing for the validation of acts and proceedings taken under the Act which would cure any irregularity and defect where the same are covered by clause (d) if no substantial injustice had resulted from the given failure to serve a notice or if the given matter falls under clause (e) if the omission, defect or irregularity does not affect the merits of the given case. The provisions of subsection (2) of section 42, on the other hand, is a specific provision dealing with defect and irregularities in the framing and sanctioning of the scheme.

One of the well known principles of statutory construction is that a provision providing for a specific matter would exclude the application to that specific matter of a general provision .. ... .. What is more in view of the following view of the Division Bench in Bodh Raj v. Improvement Trust, 1982 PLJ 310, with which we, with respect, entirely agree, the provisions of section 101 would in any case were not intended by the Legislature to provide a cover to the noncompliance of mandatory provisions and therefore if the provisions of section 36, 38 and 40 were intended by the Legislature to be mandatory which we would presently examine, then it must be understood, that it was not the provision of section 101 which was intended to cure the irregularity of noncompliance of the mandatory provisions and, therefore, the provision of section 101 are not relevant for the purpose in question."

The ratio of the Full Bench decision in Prof. Jodh Singh''s case (supra) in relation to the application of section 101(1)(d) of the Act is squarely applicable to the instant case. It has already been held above, that the provision contain in section 36 of the Act is mandatory and that it has not been complied with in the present case. The illegality as a result of non compliance of the mandatory provision contained in section 36 will not stand cured under section 101(1)(d) of the Act.

In the result, the letters patent appeal fails and is dismissed with no order as to costs.