Sarup Chand and others vs The State of Haryana and others

R.N. Mittal, J.—This judgment will dispose of Civil Writ Petition Nos. 1691 and 2663 of 1975, which involve common questions of law and fact. In this judgment the facts are being given from Civil Writ No. 691 of 1975.

The case of the Petitioners is that they were the owners of certain plots in Civil Lines, Jagadhn All of them, except Petitioner No. 1. have constructed houses on those plots. The Jagadhri improvement Trust (hereinafter referred to as the Trust, Respondent No. 2, thought of framing a development scheme u/s 24 of the Punjab Town Improvement Act, 1922 (hereinafter referred to as the Act), for an area measuring about 21 Acres of land situated in Civil Lines, Jagadhri, including the above said plots of the Petitioners. On October 12, 1970, the Trust passed a resolution (copy Annexure ''P-2'' to the petition) to develop that piece of land and directed the framing of a development scheme, in the Trust Office, u/s 24, read with Sections 38(2) (i), (ii), (iii), (iv), (v). (vi), (vii), (viii), (ix), (x) and (xi) of the Act. It published notice dated October 19, 1970 (copy Annexure ''P-3'') on October 11, 1970 and November 3, 1970, respectively, u/s 36 of the Act and also served notices u/s 38 (Annexure''P-4'') on the Petitioners. They filed objections against the scheme. The Trust, after disposing of the objections, applied to the State Government for sanctioning the scheme, which the Government sanctioned on October 10, 1973, and published in the Gazette on the same day u/s 42 of the Act. A copy of the notification is Annexure ''P-6'' to the petition. The Petitioners have challenged the notices Annexures''P-3'' and "P-4''. The writ petition has been contested by the Respondents.

It is contended by the Learned Counsel for the Petitioners that before the publication of a notice u/s 36 of the Act, it is obligatory that there must be in existence a development scheme validly framed A development scheme has to provide inter alia for the lay out of the locality to be developed, the purposes for which particular portions of such locality and to be uilised, the prescribed street alignment, the building line on each side of the streets proposed in such locality, etc. No scheme including the aforesaid requirements or the requirements mentioned in Section 28 was ever framed by the Trust before the publication of the notice u/s 36. It is further contended by the Learned Counsel that without complying with the provisions of Section 36, the resolution u/s 40 for applying to the State Government to sanction the alleged scheme is meaningless and the section of the scheme by the State is illegal and void and without jurisdiction. It is also contended that the issuance of notices to the Petitioners u/s 38 was only a formality in as much as no hearing had been given to them and their objections had not been considered and disposed of in accordance with law. On the other hand, the Learned Counsel for the Respondents has vehemently argued that all the formalities had been completed by the Trust and in case some of them had not been done, the State Government had sanctioned and notified the scheme. According to him, if the scheme had been sanctioned and notified by the Government, it was the conclusive evidence that the same had been duly framed and sanctioned u/s 42(2) of the Act.

I have heard the Learned Counsel for the parties and have given thoughtful consideration to the matter. The controversy raised by Mr. Saini is that certain formalities which were required to be completed before forwarding the scheme for sanction and approval of the Government, were not done. I shall first refer to the relevant provisions of the Act.

Chapter IV of the Act relates to the schemes under it. It starts with Section 22 and ends with Section 44. Sections 22 to 28 deal with different types of schemes. Section 24 relates to development schemes; Section 28, to matters which may be provided for in the scheme; Section 35, to matters to be considered when framing improvement schemes ; Section 36, to preparation, publication and transmission of notice as to improvement coffees and supply of documents to applicants ; Section 37, to transmission of objections by Committee as to the scheme to the Trust ; Section 38, to notice of proposed acquisition of land ; Section 40, to abandonment of scheme, or application to the State Government to sanction it: Section 41, to power of the Government to sanction, reject or return the scheme and Section 42, to notification of sanction of scheme. A perusal of the sections shows that a procedure has been prescribed for framing, publishing and finalising the schemes. After a scheme has been framed under the Act, it is to be published in accordance with the provisions of Section 36. Its notice is required to be served on the Municipal Committee, the Medical Officer of Health and every person who is owner of any immoveable property which is to be acquired for the execution of the scheme. The Municipal Committee, the Medical Officer of Health and the persons concerned can file objections regarding it within a specified period. The Trust, after examining the objections, can abandon it or apply to the State Government for sanctioning it with such modifications as it deems necessary. The State Government has the power to sanction, reject or return the scheme. If the State Government accepts the scheme, it shall notify it u/s 42 of the Act. From the above provisions, it is sufficiently clear that the scheme is passed after giving every opportunity to the persons concerned to raise objections. In case some formality before filing the objections is not completed, it should be brought to the notice of the Trust by the concerned persons. If they fail to do so, they cannot be allowed to raise objections when the scheme has been finalised and published u/s 42 of the Act.

Now I advert to the facts of this case, the main objections of the Learned Counsel for the Petitioners are that feasibility certificate relating to the development scheme was not received by the Trust before passing the resolution on October 12, 1970, that no development scheme was available in the office of the Trust, that no hearing was given to the Petitioners regarding objections, and that all the requisite documents were not sent to the State Government along with the application u/s 40 of the Act. The first three objections relate to the time before filing the objections by the Petitioners u/s 38 of the Act. The notices under the aforesaid section were duly served upon them and they filed objections on January 15, 1971. A specimen copy of the objections is annexed with the petition as Annexure ''P-5''. A careful perusal of the objection petition shows that no such objections as have been referred to by the Learned Counsel for the Petitioners, above, were taken in it. The main objection taken by them in the objection petition was that the colony was and had been sanctioned and approved by the Municipal Committee, Jagadhri, and there was no reessity of making any further development in it. They further stated that the intention of the Trust was to acquire the property at nominal price and to sell the same at fancy price. The objections were disposed of by the Trust under section; 40 of the Act after hearing the Petitioners. In case the Petitioners were feeling handicapped in any way by non-performance of the aforesaid acts by the Trust, they should have taken an objection is the objection petition so that the Trust could have performed the necessary formalities at that stage. After the scheme has been sanctioned, it is too late to raise such objections. The Trust, in the return, has also denied the aforesaid allegations of the Petitioners It states that feasibility certificate is not required under the Act. It is by reason of Government instructions dated June 24, 1966, that such a certificate is obtained from the Divisional Town Planner. It is further stated that in the meeting held on September 21. 1970, by the Chairmen of the Trust with the Divisional Town Planner and Executive Engineer, Public Health Branch, Ambala, the development scheme in question was considered. The Town Planner and the Executive Engineer were taken round the area in respect of which the development scheme was contemplated. Thereafter final boundary lire of the scheme in red pencil was fixed on the survey plan by them. According to them, the feasibility/suitabilit of the area for the purpose of development scheme had been approved by the Divisional Town Planner in the said meeting held on September 21, 1970. It is further alleged that the feasibility certificate was also obtained in writing by the Divisional Town Planner oh October 16, 1970. Regarding the second objection, it has been stated that the development scheme was in existence when the notice u/s 36 of the Act was published for the second time in the Haryana Government Gazette on November 10, 1970. On the third objection, it is stated that the Petitioners were given a hearing before deciding their objections and none of them produced any evidence. It is further stated that the objections were considered and were found without any substance It is an established principle of law that this Court is loath to decide controversial questions of fact. The objections taken by the Learned Counsel for the Petitioners are controversial questions of fact In view of the aforesaid circumstances, I do not find any substance in the said objections.

Another objection that has been taken by the Petitioners is that all the requisite documents were not sent to the State Government alongwith the application u/s of the Act He has especially referred to letter dated February 17, 1973, from the Divisional Town Planner, Ambala Division, to the Chairman, Town Improvement Trust, Jagadhri (Annexure ''P-11''), stating that the approved layout plan from the senior Town Planner was being sent to him for further action. The Respondent, in his reply, has deposed that the layout plan finally prepared by the Divisional Town, Planner, with the approval of the Senior Town banner, was sent to the Trust by the Divisional Town Planner with his letter dated July 11, 1972 (copy Annexure ''P3''). In the aforesaid letter it is stated that the layout of Development Scheme No. 11, in duplicate, is enclosed for further necessary action. Again there is dispute about the facts on this matter. As already observed above this Court is reluctant to go into controversial facts in writ proceedings, If there is controversy regarding the facts, the petition may be dismissed or that ground. Even if it is assumed that certain documents were not sent by the Trust to the State Government along with its application u/s 40, it was for the State Government to raise objections regarding that. In case even after such objection the Trust failed to comply with the request of the Government, it could reject the proposal of the Trust. In my view the Petitioners have no locus standi to ralse such an objection and especially when a notification u/s 42(2) of the Act has been published by the Government. I shall deal with the matter as to what is the effect of the notification under the said section in the following paragraphs. I, therefore, also do not find any substance in this objection.

At this stage I may refer to some other formal objections raised by the Learned Counsel. He has argued that it was not specifically stated in the resolution of the Trust for what purpose the particular portion of the locality was to be used, that the scheme did not contain the prescribed street alignment, the building line on each side of the streets proposed in such locality etc. In a nutshell, the argument is that some formalities of providing details in the scheme were not complied with. All the facts are controverter by the Respondents. In any way, even if the formalities are not observed, the matter cannot be agitated after the notification u/s 42(2) has been published

Now I shall deal with Section 42(2) of the Act. In the said section, it is stated that notification in respect of any scheme u/s 42(1) shall be conclusive evidence that the scheme had been duly framed and sanctioned. Section 42 is as follows:

(1) The State Government shall notify the sanction of every scheme under this Act, and the Trust shall forthwith proceed to execute such scheme, provided that it is not a deferred street scheme, development scheme, or expansion scheme and provided further that the requirements of Section 27 have been fulfilled.

(2) A notification under Sub-section (1) in respect of any scheme shall be conclusive evidence that the scheme has been duly framed and sanctioned.

From the reading of Section 42, it is evident that the Legislature wanted to give finality to the scheme sanctioned by the Government so that thereafter objections regarding the non-fulfilment of certain formalities may not be raised. The purpose in enacting this section appears to be that if the landowners, etc., go on filing objections even after notification, the Trust may not be able to carry out the scheme which are finally sanctioned by the Government. Such provisions in other Acts have been judicially interpreted. In the C.P. and Berar Municipalities Act, a provision was made to the effect that if any proposal for taxation had been sanctioned the Provincial Government may, by notification, direct the imposition of the tax. It was further provided that a notification of the imposition of tax under this section would be conclusive evidence that the tax had been imposed in accordance with the provisions of the Act. Octopi was imposed by the Municipal Committee, Shegaon and not fiction was issued thereafter by the State Government. The notification was challenged on the ground that the provisions of the Act had not been complied with and, therefore, the same was illegal. The matter came up before the Supreme Court in Berar Swadeshi Vanaspatht and Ors. v. Municipal Committee Shegaon AIR 1952 SC 420, and it was observed by their Lordships that the imposition of octroi having been notified in the Gazette, was conclusive evidence of the tax having been imposed in accordance with the provisions of the Act and it (sic)...(sic) matter under the Madhya Pradesh Town improvement Trust Act also came up before the Supreme Court in Laxmichand Vs. Indore Improvement Trust, Indore and Another, The provisions of the Madaya Pradesh Town Improvement Act are pari materia with the provisions of the Act. Section (sic)2, inter provides that the publication of a notification under Sub-section (1) in respect of any schemes shall be a conclusive evidence that the scheme had been duly framed and sanctioned. In that case also certain objections were taken to the effect that certain formalities which were essential had not been compiled with. Goswami J., while speaking for the Court, observed as follows:

Section 45 requires certain matters specified in (a) to (c) therein to be considered when framing an improvement scheme. The specified matters touch on the inherent utility, efficiency and adequacy of the scheme and the objections and representations of the persons effected Will be directed to negative such assumptions.

Indeed without actuary taking into consideration the various matters specified in Section 45 it may not possible to frame a scheme an i finally to obtain sanction of the Government in the teeth of objections and representations against the same. Where factual satisfaction is evident formal recitals being omitted may not matter. At any rate Section 52(2) puts a final seal of imprimatur on the scheme after publication of the sanction of the Government.

It is clear from the aforesaid observations that after the publication of the notification, objections regarding certain formalities are meaning less and the schemes cannot be quashed on that ground.

The Learned Counsel for the Petitioners has nude a reference to S. Harcha(sic)n Singh and Ors. v. Shri Shashpal Singh 1966 Cur. LJ (P&h.) 352, wherein a development scheme had been framed for certain areas which were outside the Municipal Committee. The scheme was challenged on the ground that the improvement Trust could not frame a development scheme u/s 24 of the Act regarding such area. It was contended that it could frame an expansion scheme tor that area under the aforesaid section. It was observed by a Division Bench of this Court that as there was no valid schemes the same could be challenged under Article 226 of the Constitution of India. It is further contended by the Learned Counsel that the view was aforesaid affirmed by the Supreme Court in The The Amritsar Improvement Trust Vs. Baldeva Inder Singh and Others, . A perusal of the facts shows that the said case was distinguishable on facts u/s 24, the Trust had no jurisdiction to frame a development scheme for the areas situated outside the municipality. The act of the Trust was without jurisdiction. In my view, the Petitioners cannot derive any benefit from the aforesaid decisions Reference has also been made by him to Naruta Ram and Ors. v. The State of Punjab 1975 PLJ 185. In that case the acquisition of land was being made without sanctioning of the full scheme. The notification for acquisition was struck down on that ground. The facts of the said case are also different from those of the present case and the observations therein will not be of any assistance to the Learned Counsel for the Petitioners.

The Learned Counsel has further referred to Munshi Singh and Others Vs. Union of India (UOI), That case is under the Land Acquisition Act. The matter (sic) before their Lordships was different. The observations in the said case do not apply to this case.

The Learned Counsel for the Petitioners then sought to argue that the objections riled by the Petitioners were not dealt with by the Trust in a quasi judicial manner. He says that a speaking order should have been passed by the Trust as it was acting as a quasi-judicial Tribunal. The Trust has denied that it was acting as a quasi judicial Tribunal. I need not go into this matter as to whether the Tribunal acts in a quasi-judicial manner and is required to write a speaking order. It is sufficient to say that in view of Section 42(2) of the Act, such objections cannot be raised after the scheme has been sanctioned are notified under the said section,

In all fairness to the Learned Counsel for the Respondents, it may be mentioned that he has raised a preliminary objection that the writ petition ii highly belated and is liable to be dismissed on this ground. It is not necessary to go into this matter as I am dismissing the writ petition on merits.

No other point was raised in both the writ petitions.

For the reasons recorded above, these writ petitions fail and the same are dismissed. In the circumstances of these cases I, however, make no order as to costs.