Ugar Sain vs State of Punjab etc.

Harbans Lal, J.—This order will dispose of Civil Writ Petition No. 5205 of 1974 Ugar Singh v. The State of Punjab and others and Civil Writ Petition No. 5205 of 1974 Hindu Undivided Family Lala Dhani Ram Mehra and Sons v. The State of Punjab and others) as identical questions of fact and law arise in both the writ petitions and the same notifications have been impugned. For facility of reference, relevant facts in Civil Writ Petition No. 5205 of 1974, will be referred to.

The petitioner is an occupier of a portion of the premises bearing Municipal No. 2575/11--37 and 1504/11-37 (the premises in dispute) belonging to M/s. Ram Lal Ganpat Rai, where he is doing manufacturing business. On June 26, 1962, the Punjab Government, respondent No. 1, declared the entire area within the walled city of Amritsar to be damaged area by a notification u/s 2(d) of the Punjab Development of the Damaged Areas Act (X of 1951) (hereinafter to be called the Act). The premises, in dispute, are covered by the said notification. The Amritsar Town Improvement Trust, respondent No. 2, (hereinafter called the Trust), framed a development scheme u/s 3 of the Act for the development of the area inside Ghee Mandi situated in the walled city of Amritsar. This scheme was published u/s 4 of the Act, but no notice of the same was issued to the petitioner. Under sub-section (3) of section 5 of the Act, the Government of Punjab sanctioned the said scheme for acquisition part only by a notification published in the Punjab Government Gazette dated June 3, 1968, (Annexure P. 1). Thereafter, the Trust sent an application u/s 6(1) of the Act to the Land Acquisition Collector for acquisition of some area referred to in the notification (Annexure P. 1) for immediate delivery of the possession thereof. On this, the Land Acquisition Collector vide his order dated March 13, 1969, (Annexure P. 2), accepted the application of the Trust and ordered delivery of the possession. Regarding the remaining properties which were not included in the application by the Trust, the Land Acquisition Collector ordered as under:--

As regards the remaining properties of the scheme it shall be acquired and taken possession when request for the delivery of the possession is received from the Trust.

Admittedly, the properties of the petitioners in both the writ petitions were not included in the application submitted by the Trust to the Land Acquisition Officer. On November 18, 1974, a notice was issued by the Land Acquisition Officer to the petitioners for taking possession of the premises, in dispute. The copies of those notices are Annexures P. 3 and P. 4. The validity of the notification Annexure P. 1) u/s 5(3) of the Act and the notices (Annexures P. 3 and P. 4) for taking possession of the properties of the petitioners has been challenged in the writ petitions under Articles 226 and 227 of the Constitution on the following grounds :

(1) by the impugned notification (Annexure P. 1), the Punjab Government has sanctioned the scheme sent by the Trust for acquisition part only. This could not be done as the scheme cannot be sanctioned, under the provisions of the Act, partly :

(2) u/s 6 of the Act, the Trust could approach the Land Acquisition Collector for acquisition of the land and for possession only within three months from the final sanction of the scheme by the Government. So far as the premises in dispute are concerned, this was not done and the notices (Annexures P. 3 and P. 4) were issued to the petitioners in this regard in 1974, that is, about six years after the sanction of the scheme by the Government; and

(3) the statement as envisaged u/s 12(2) of the Act could be sent by the Trust to the Government only within three years of the sanction of the scheme. This mandatory provision was not complied with and no such statement has been sent so far. Replies have been filed on behalf of the Trust and the State. The facts are not in dispute. However, it is contended that the impugned notification (Annexure P. 1) and the impugned notices (Annexures P. 3 and P. 4) are valid and in accordance with law.

In order to appreciate the controversy, the scheme of the Act may be broadly taken into consideration. u/s 5, a Trust constituted under the Act, has been conferred the powers to frame a scheme for the development of damaged areas, keeping in view the ingredients of section 28 of the Act. After such a scheme has been framed, notice has to be published in the Government Gazette and two newspapers for inviting objections u/s 4. u/s 5, the Trust is empowered to prove the scheme as was originally framed or with modifications after taking into consideration the objections, if any. The same is to be sent to the State Government for consideration and approval The State Government after according the approval under sub-section (3) of section 5, has to notify the same as a relief of which the scheme is available for acquisition of any damaged area comprised in the scheme and the next step for the Trust to take is to apply to the Collector for acquisition u/s 6(1). But this application must be submitted within three months of the application of the scheme under sub-section (3) of section 5. If that application is accepted by the Collector, he can order delivery of possession free from all encumbrances, but subject to the payment of compensation to be assessed in accordance with other provisions of the Act. However, delivery of possession can be ordered in case of a building only after two weeks notice to the occupier. The proceedings regarding compensation are contemplated under sections 9 to II. After possession of the property has passed into the hands of the Trust, the scheme reaches the stage of execution for which the Trust has been empowered under sub-section (1) of section 12, but before any step in this regard is taken, it is mandatory for the Trust to send an accurate statement containing the details regarding the cost of the scheme, the income estimated and the particulars of the estimated value of the plots to be sold and other details as envisaged under clauses (a) to (d) of sub-section (2) to section 12. This statement has to be sent by the Trust within three years from the date the scheme was sanctioned by the Government under sub-section (3) of section 5. Under sub-section (3), the State Government is required to publish the details of the said statement after scrutiny. Subsequent to its publication, duty has been cast on the Land Acquisition Collector u/s 13 to make an award apportioning compensation. The Trust is entitled to challange the said award u/s 15 read with section 19 of the Act.

From the above, it is evident that the scheme as framed by the Trust and submitted to the Government has to be sanctioned under sub-section (3) of section 5 as a whole after taking into consideration the objections which may have been filed by the persons likely to be affected. In the present case, the impugned scheme was published in the Government Gazette on June 3, 1968, vide notification (Annexure P. 1). Its perusal shows that the scheme was sanctioned under subsection (3) of section 5 "for acquisition part only." According to the learned counsel for the petitioners, the State Government had no jurisdiction to sanction the scheme in part as has been done in this case. Reliance has been placed in this behalf on a Division Bench judgment of this Court in Arjan Singh v. State of Punjab and others 1977 P.L.J. 323, in which a scheme had been framed under the Punjab Town Improvement Act (hereinafter called the Improvement Act) and sanction had been accorded by the Government u/s 42(2) of the Improvement Act. I was also a party to the said judgment. The various provisions of the said Act regarding the framing of the scheme, inviting of the objections and the final sanction by the State Government, are analogous to the provisions of the Act. In that case also, the impugned notification had been issued by the State Government thereby sanctioning the acquisition part only. It was held that the Government had no jurisdiction to sanction only the acquisition part u/s 41(1) of the Improvement Act, but after perusing the notification issued by the Government and taking into consideration all other circumstances of the case, we came to the conclusion that the scheme had been sanctioned wholly and not only for acquisition part. This decision was relied upon by both the sides. According to the learned counsel for the respondents, the working of the impugned notification in the present case, is absolutely identical to the language used in the notification issued in the said case and, therefore, the impugned notification in the present case, should also be held valid and interpreted as if the scheme had been sanctioned wholly and not partly. On the other hand, the learned counsel for the petitioners, relied upon the document annexed by the respondent Trust to the reply (R. 5). This notification was also issued under sub-section (3) of section 5 of the Act and published or, January 8, 1971, that is, about three years after the publication of the notification (Annexure P. 1) according to which the same scheme relating to the same property was sanctioned by the Government to the extent of "acquisition part only". The argument is that if the two notifications (Annexure P. 1 and R. 5) are read together, it becomes absolutely clear that the previous notification decidedly had a reference to the sanction of the scheme only for the purpose of acquisition and not as a whole because if by notification (Annexure P. 1), the scheme had been sanctioned as a whole, the question of issuing second notification (R. 5) could not arise. There is considerable weight in this contention. Thus, it has to be held that by the impugned notification, (Annexure P. 1), the State Government sanctioned the scheme submitted by the Trust only partly. This was not permissible to the State Government in view of the ratio of the decision in Arjan Singh''s case (supra).

It is then contended that so far as the property of the petitioners in both the writ petitions is concerned, request was not made by the Trust to the Collector within three months of the publication of the scheme under sub-section (3) of section 5 as required u/s 6. It is clear from the order of the Land Acquisition Collector dated March 13, 1969, (Annexure P. 2) that the Trust had requested the Collector regarding the acquisition and taking the possession of some of the property comprised in the scheme and the said request did include the property, in dispute. Regarding the remaining property, the Land Acquisition Collector held in the said order as under:

As regards the remaining properties of the scheme it shall be acquired and taken possession when request for the delivery of the possession is received from the Trust.

It is admitted by the learned counsel for the Trust that the request for acquiring the property, in dispute, was made to the Land Acquisition Collector as late as 1974. u/s 6, the Trust has the jurisdiction to approach the Collector for acquisition and delivery of possession of any property comprised in the scheme only within three months. A perusal of this provision shows that the same is mandatory and the time limit was fixed with a purpose lest after framing the scheme, and sanction by the Government, the Trust may lose all interest in the implementation of the scheme and still keep the sword hanging on the owners or occupiers of the property for indefinite period. The learned counsel for the respondent has not been able to rebut this contention except making a bald statement that the provisions were not mandatory and the Trust had the discretion to approach the Collector for acquisition of a particular part of property under the scheme even beyond the period of three months. The same cannot be agreed to as this interpretation is not warranted by the plain language of the section.

Lastly, it was contended by the learned counsel for the petitioners that the third mandatory requirement of section 12(2) of the Act was also not complied with by the Trust inasmuch as the statement relating to the cost and income and other particulars of the scheme as required u/s 12(2) of the Act was not submitted to the Government by the Trust within three years from the date of the sanction of the scheme. According to the learned counsel, such a statement has not been submitted even upto now though more than nine years since the sanction of the scheme have elapsed. This factual position has not been denied by the learned counsel for the Trust. This question specifically fell for determination in Kishan Chand v. The Jullundur Improvement Trust and others ILR (1970) P&H. 645, wherein Sarkaria, J., (as he then was) after perusing the various provisions of the Act interpreted section 12(2) as mandatory and held:--

The Trust has to make up its mind for taking over possession of the land comprised in Scheme within 3 years from the date of the sanction of the scheme, and, after the expiry of that period it can neither take possession nor proceed with the execution of the scheme.

I am entirely in agreement with the ratio of that decision. The various time limits were provided in sections 6 and 12 of the Act with the clear purpose of protecting the interests of the owners and occupiers of the properties which were sought to be acquired by the Trust for the alleged purposes and their development. If the Trust did not think it fit to submit the statement u/s 12(2) to the Government within three years of the sanction of the scheme, it was a clear pointer that the Trust was not interested in developing the area, may be for any reason. That being so it was but proper that the owners of the property should not remain in suspense so that they could deal with their property in the best manner they liked.

In view of the above discussion, the impugned notification (Annexure P. 1) which is the same in both the writ petitions and the notices (Annexures P. 3 and P. 4) issued by the Land Acquisition Officer to take possession of the property, in dispute, from the petitioners have to be quashed as they are not clothed with the legal sanction. Both the writ petitions are, therefore, allowed with costs and the impugned notification (Annexure P. 1) and the impugned notices (Annexures P. 3 and P. 4), are quashed. Counsel fee in each case is fixed at Rs. 100/-.