Virinder Mohan and Another vs Bhatinda Improvement Trust and Another

A.L. Bahri, J.—By this judgment, Civil Writ Petition Nos. 2713, 6124 and 6125 of 1987; 3l and 9458 of 1988; 91 and 2378 of 1989 are being disposed of. The facts are being taken from C.W.P. No. 9458 of 1988 Vide Annexure P-l, notification u/s 36 of the Punjab Town Improvement Trust Act (for short the Act) was published on 9th September, 1976. The matter was taken to the High Court and the notification was quashed on 3rd December, 1982 as no further action was taken within three years. Subsequently, the Improvement Trust in January, 1983 requested the Municipal Committee not to sanction the plans for buildings as the Notification was still subsisting. This was done vide letter Annexure P-2. Subsequently, a resolution (copy Annexure P-3) was passed by the Improvement Trust of 6th January, 1984 for notifying the earlier scheme. The Deputy Commissioner vide his order dated 30th January, 1984 Annexure P-4 suspended the operation of the resolution passed by the Trust. Despite all that the Improvement Trust issued notice u/s 36 of the Act which was published in the newspaper ''Daily Ajit,. Jalandhar, on 4th February, 1984. Subsequently, in the Government gazette a notice was published on 24th February; 1984. Challenging the acquisition writ petitions were filed. At the time of argument counsel for the respondents has given relevant dates of publication of notice u/s 36 of the Act as under :.-

In Ajit Daily, Jalandhar 4.2.1984; 11.2.1984; 18 2.1984 In The Tribune 10 2.1984; 17.2.1984; 24.2 1984 In Government Gazette 24.2.1984; 2.3.1984; 9.3.1984

The contention of the counsel for the petitioners is that the first notification ought to have been published in the Government gazette and not in the newspaper and on that account acquisition proceedings are liable to be quashed. There is force in this con ention. Provisions of Section 36 (2) and 40 (3) of the Act are mandatory as held by a Full Bench of this Court in Prof. Jodh Singh v. Jalandhar Improvement Trust (1985-2) 88 P. L. R. 308. Subsequently, this decision was considered by a Division Bench in Phagwara Improvement Trust v. The State of Punjab 1985 P. L.R. 254. In that case, notifications u/s 36 of the Act were first published in the Tribune on 9th, 16th and 23rd April; 1976 and thereafter in the Punjab Gazatte on 7th 14th and 21st May, 1976. The question raised was whether the notification published in the Tribune at the first time would amount to substantial compliance of the provisions contained in the Act. It was held that those provisions being mandatory the non-compliance thereof would vitiate the proceedings and such illegality could not be rectified, u/s 101 (1) (d) of the Act. The contention of the counsel for the respondents that in view of the Schedule attached to the Act, the first notification published shall be deemed to be equivalent to notification u/s 4 of the Land Acquisition Act. In my view that will not make any difference. Even under the Land Acquisition Act the provisions of 4 and 6 are almost identical with the provisions of Sections 36 and 40 of the Act. A case under the Land Acquisition Act was under consideration of this Court in Rakha Singh v. State of Haryana 1989 L.A.C. O. 173. There the notification was first published in the newspaper and thereafter in the official gazette and it was held that it could not successfully be argued that the mandatory provisions of Section 6(2) of the Land Acquisition Act were complied with in the matter of acquiring the land.

The Supreme Court in Collector (District Magistrate) Allahabad and Another Vs. Raja Ram Jaiswal, . observed as under :--

"Assuming that a notification in the Official Gazette is a formal expression of the decision of the Government is hardly relevant unless less it takes the concrete shape and form by publication in the Official Gazette. Where a decision of the Government to be effective and valid has to be notified in the Government Gazette, the decision itself does not become effective unless a notification in the Official Gazette follows."

It was further observed as under :-

"Section 4(1) further requires that the Collector shall cause public notice of the substance of such notification to be given at convenient places in the said locality: The expression ''such notification'' m the latter part of Section 4(1) and sequence of events therein enumerated would clearly spell out that first the Government should reach a decision to acquire land, then publish a notification u/s 4(1) ad simultaneously or within a reasonable time from the date of the publication of the notification cause a notice to be published containing substance of such notification meaning thereby, that notification which is published Obviously, therefore, there cannot be a publication in the locality prior the issuance of the notification."

It has been argued on behalf of the Trust that there is inordinate delay by the petitioners in approaching this Court and the writ petition should be dismissed on that ground This contention again cannot be accepted in view of the rule of law laid dwon in Rakha Singh''s case (supra). The delay is of no consequence Furthermore, it may be stated that the present writ petitions were filed even before the announcement of the award and the petitioners have not So far been dispossessed.

Although the resolution passed by the improvement Trust was suspended by the Deputy Commissioner vide Annexure P-4 the matter was taken up for issuing notice u/s 36 of the Act. This is sought to be explained on behalf of the Trust that it was for the State Government to rescined or revoke the order of the Deputy Commissioner suspending the resolution of the Trust and if ultimately the scheme was sanctioned the notices u/s 36 of the Act were ordered to be issued. It would be deemed that the order of suspension of resolution was revoked In my view, there is no force in this contention of counsel for the Trust When any resolution passed by the Trust suspended by the Deputy Commissioner and a report is made to the State Government, the State Government was. required to pass a specific order rescinding such order of the Deputy Commissioner. Nothing of the kind was done in the present case. Be that as if may, acquisition proceedings qua petitioners cannot be sustained under the law. The petitioners were not served with notice u/s 38 of the Act and they all along remained in possession.

The other contention of counsel for the Trust that it was not necessary for the State Government to give notice to the landowner before setting aside order of Deputy Commissioner in view of the decision dated, November 8, 1978 of the Court in Karam Singh v. The State of Punjab and Ors.. (C.W.P. No. 3654 of 1970), a decision u/s 236 of the Punjab Municipal Act, cannot be accepted. As discussed above, no specific order setting aside'' order of the Deputy Commissioner was passed by the State Government.

For the reasons recorded above, the writ petitions are allowed and proceedings for acquiring the land of the petitioners are held to be illegal and are qushed. The petitioners would get the costs. Counsel fee is quantified Rs. 500/- in each case.