Improvement Trust Kapurthala & Another v. Siri Ram Etc.
Date of Decision: October 16, 2015 The Improvement Trust, Kapurthala and another Appellants
Versus
Siri Ram and others
...Respondents
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Present: ' Mr. Samarth Sagar, Advocate for the appellants.
Mr.R.L.Batta, Sr.Advocate with Mr. Naresh Prabhakar, Advocate for the respondents.
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"" $ This intra Court appeal under Clause X of the Letters Patent has been filed against the judgment dated 22.01.1993 whereby the CWP No.3227 of 1989 filed by the respondents 1 to 21 has been allowed and the award Annexure P'6 and the notifications Annexure P'1 and P'3 issued under Sections 36 and 41 of the Punjab Town Improvement Act, 1922 (hereinafter referred to as `the 1922 Act'), whereby, the land of the respondents was acquired, had been quashed.
The relevant facts in brief are that notice (Annexure P'1) under Section 36 of the 1922 Act was issued on 23.2.1984 for acquisition of 42 kanals 7 marlas of land situated on the Mall
Road within the Municipal limits of Kapurthala in pursuance of a development scheme framed by the appellant Trust. The plots of the respondents were situated within that area. They submitted objections within the stipulated time. They also submitted various representations to the authorities including the then Chief Minister against the acquisition but without success. On 20th Feb, 1987 the development scheme was sanctioned under Section 41 of the 1922 Act for an area of 2.38 acres (Annexure P'3). The Collector made the award (Annexure P'6) on 16.2.1989. Thereafter the respondents filed the writ petition impugning the notifications and the award.
The main grounds of challenge to the acquisition as have been recorded by the Ld. Single Judge were as under:'
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% The appellant Trust had raised the issue of delay and laches in filing of the petition and also argued that any technical flaw in the procedure is to be ignored as no injustice had been caused to the respondents.
The Ld. Single Judge taking note of the fact that despite the question of delay having been raised the writ petition had been admitted, that by the time the petition came up for final hearing, it had remained pending for over three years and the dispossession of the respondents had remained stayed, did not accept this ground and proceeded to dispose of the petition on merits.
Ld. Single Judge accepted the contention of the respondents that there was no scheme in existence on the date when the initial notice was published in The Tribune on 23.2.1984.
In support of their contentions that proceedings for acquisition of land by the Trust could be started only after the
scheme is framed, the Ld. Counsel for the respondents had placed reliance on decision of the Hon'ble Supreme Court in
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)*$ + &*, & ' %&$ wherein, it was held that provisions of Section 36(3) of the 1922 Act, regarding the documents to be supplied is mandatory and in case there is non compliance therewith the acquisition proceedings would be illegal.
Placing reliance on the aforesaid decisions, the Ld. Single Judge held that as there was non compliance with the provisions of Section 36(3), the respondents were denied an effective opportunity to file objections. The Ld. Single Judge also held that there was no reason forthcoming on behalf of the State of Punjab as to why when on a earlier occasion sanction for the same scheme was declined, the sanction had been accorded this time. Accordingly the writ petition was allowed. Ld. Counsel for the appellant has argued that the appellant Trust had prepared the scheme before the same was published under Section 36 of the 1922 Act. This fact was mentioned in the notice Annexure P'1. The general map of the locality was also prepared before the publication of the scheme. He stressed that in fact the respondents had filed the objections after inspecting the general map and the scheme. The said objections were duly considered and decided. He thus states
- that the contention of the respondents that there was no scheme prepared and hence they were not able to file objections is devoid of merit. Alternatively, it has been argued that the judgment of the Hon'ble Supreme Court in
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has been overruled by subsequent Larger Bench in .'% &&! / "" -0 and accordingly the view that there can be no acquisition by a Trust before a development scheme is prepared is no longer good law. On the other hand, Ld. Counsel for the respondents supported the judgment of the Ld. Single Judge. Having heard Ld. Counsel for the parties, we are of the view that there is no merit in the appeal and the same deserves to be dismissed.
The contention of the Ld. Counsel for the appellant that the Trust had prepared the scheme before the publication of the notice under Section 36 and that the respondents had proper opportunity to submit objections is belied by the pleadings of the case.
In this context, it would be proper to reproduce the pleadings in the writ petition.
Para 5 of the writ petition:
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The alternative ground pressed on behalf of the appellant is also not sustainable.
In
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's case has been subsequently considered by the Hon'ble Supreme Court in <&
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%'9& #'%9%% =* &! ""// In this case, the Hon'ble Court was considering a challenge to the land acquisition proceedings initiated by the
State of Rajasthan under the Rajasthan Urban Improvement Act, 1959. As per Section 29, the Trust shall on the directions of the Government or on its own initiative or on the representation of the Municipality frame scheme for improvement of Urban areas for which it was constituted. As per Section 52, the State Government could acquire land on a representation from the Trust, or otherwise. The Hon'ble Supreme Court held that this obviously means that the land under Section 52 of the Act can also be acquired when there is no representation from the Trust and as such no scheme under Chapter V in existence. In this context the Hon'ble Supreme Court observed as under: '3
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It is noteworthy that the Hon'ble Supreme Court observed that the framing of the scheme becomes mandatory only when the work is undertaken by the Trust. If the State Government, in any of its departments, decides to develop the urban area under the Act, in that case, it would not be necessary for the Government to frame a scheme before proceeding to acquire land in exercise of power under Section 52 of the Act. In .'% &&! /""-0$ the question before the Hon'ble Supreme Court was whether a final and effective scheme prepared and published under the provisions of the Tamil Nadu State Housing Board Act, 1961 was a precondition to the issuance of a notification under Section 4 of the Land Acquisition Act, 1894.
The Hon'ble Court noticed that as per Sections 35 and 36 of the Housing Board Act, the Housing Board, in addition to executing the housing or improvement schemes framed by it under the Act is also under an obligation to undertake the execution of any such schemes as are transferred to it by the Government, even if such scheme is not provided for under the Act. The Court noted that the as per Section 70 of the Act, the State Government may acquire land for the purposes of the Act, which purposes are not confined only to execution of schemes framed by the Board.
cannot issue a notification under Section 4 of the Land Acquisition Act for acquiring land for execution of schemes by the Housing Board. It was observed: 26
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% Referring to the observations in
's case, the Hon'ble Supreme Court noted that unfortunately the provisions of sub'sections (2) and (3) of Section 35 and 36 wherein the Government may transfer to the Board the execution of any housing or improvement scheme not provided for in the Act or a scheme undertaken by a local authority may be transferred to it, were not brought to the notice of the Bench in that case.
The Hon'ble Court did not approve of the
's case to the extent of holding that in no event land can be acquired for the purpose of the Board unless a final and effective scheme is framed by the Board under the provisions of the Act. It held that such a limitation !
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's case has been approved for the limited cases where the acquisition is undertaken for the purpose of execution of an improvement scheme framed by the Trust/ Board. In the present case, the acquisition is for the purpose of a development scheme framed by the Trust. Thus, the ratio of
A case would fully apply to this case. As is
3 apparent from the pleadings, no effective and final scheme had been prepared at the time of the issuance of Section 36 notification and there was non'compliance of the mandatory provisions of Section 36(3) of the 1922 Act. Thus, these provisions are mandatory as has been held by a Single Judge of this Court in # $%& '%&( )*$+ &*, & ' %& which was affirmed in (% &#@9:'9&' ! &#+ )
=*& ' decided on 24.8.2005.
Accordingly, there is no merit in this appeal and the same is dismissed.
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