vil Appeal Nos
5036 39 of 1989
From the Judgment and Order dated 22101984 of the Punjab and Haryana High Court in LPA Nos
696695694 and 697 of 1982
GL Sanghi Dhruv Mehta NP Aman Vachher and SK Mehta for the Appellant
VC Mahajan Tapash Ray A Minocha KR Nagaraja and RS Sodhi for the Respondents
The Judgment of the Court was delivered by RAY J
These appeals on special leave are directed against the judgment and order passed by the Division Bench of the High Court of Punjab and Haryana in Letters Patent Appeal Nos
694 to 697 of 1982 dismissing the appeals with costs
The salient facts out of which these appeals have arisen are as follows The appellant Trust prepared a development scheme under section 24 read with section 28 of the Punjab Town Improve ment Trust Act 1922 hereinafter referred to as the Act in relation to an area of about 60 acres of land at Palani Road
The lands of the respondents fell within the said area
On April 9 1976 a notice under Section 36 of the Act was published in daily Tribune inviting objections till 5th May 1976
This notice was published in the three consecu tive weeks of the said newspaper dated 9th April 15th April and 23rd April 1976
The very notice of the said scheme was also published under section 36 of the said Act in the Punjab Government Gazette on three consecutive weeks ie 7th May 14th May and 21st May 1976 inviting objections till May 5 1976 against the scheme framed
In accordance with the provisions of Section 38 of the said Act the Trust also served notice on every person who was occupier or owner of any immoveable property falling within the area proposed to be acquired in executing the scheme within 30 days from the date of publication of the notice under section 36 in order to enable the owners and occupiers of such pre 230 mises to file objections to such acquisition and to state their reasoning in writing within a period of 60 days of service of the notice
After completion of the acquisition formalities a notification under section 42 of the said Act was published on March 26 1979
The respondent No 2 and ors
assailed the appellant s scheme notified under the Act in CWP No 2561 of 1979 and CWP Nos 4075 3615 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 as the notification was published in the Punjab Government Gazette on 7th May 14th May and 21st May 1976
These writ petitions were allowed by order dated 25th February 1982 and the sanctioned scheme notified under section 42 of the Act was quashed
It was also mentioned in the said order that the appellant may however publish the scheme again either amended or unamended under section 36 of the said Act and proceed further in the matter in accordance with law
It is against this order the LFA No 694 to 697 of 1982 were filed
The Division Bench of the High Court affirmed the judgment and order of the learned single Judge and held that the provisions contained in Section 36 of the Act were mandatory and as it had not been complied with in the present cases the illegality of non compliance of the mandatory provisions contained in Section 36 would not stand cured under Section 101 1d of the Act
Hence the Letters Patent Appeals were dismissed
Against this judgment and order the instant appeals on special leave have been filed in this Court
Mr Mahajan learned counsel appearing on behalf of the respondent No 2 and ors
has very strenuously contended that the provisions of Section 36 of the said Act are mandatory inasmuch as it provides for publication of the notice as to the framing of the scheme under the Act in three consecutive weeks in the official Gazette as well as in the newspaper with a state ment inviting objections
Though the notice was duly pub lished in the newspaper Tribune  for three consecutive weeks on 9th 16th and 23rd April 1976 notifying the date for filing objections till 5th May 1976 yet the notification that was published in the Punjab Government Gazette for three consecutive weeks was admittedly after the expiry of period of filing objections ie 5th May 1976
It has therefore been contended by Mr Mahajan that due to non publication of the scheme in the Government Gazette before the expiry of the period of filing objections against the proposed scheme the valuable right of the respondents to file objections against the scheme has been done away with
As such the publication of the scheme was rightly quashed by the courts below as this mandatory requirement had not been complied with by the State
In this connection he has referred to the case of Prof Jodh 231 Singh  Ors
vs Jullundur Improvement Trust Jullundur and Ors
 This case was decided by the full bench of the High Court of Punjab and Haryana as to whether issuance of a notification under sub section 1 of Section 42 of the Punjab Town Improvement Act 1922 would bar a challenge to the validity of the scheme or the govern mental sanction thereto for any reason including the reason that the scheme had been framed and sanctioned without compliance of the mandatory provisions particularly those of Sections 36 38 and sub section 1 of Section 40 of the Act
It was held that 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 im pliedly necessary to enable him to bring to the notice of the concerned authority his objections against the acqui sition of his property
Hence such provisions as provide for notice raising of objections and personal hearing in sup port of the objection would be mandatory in character
 In that case a notice under section 38 of the Act was issued on the petitioner who submitted objections in time
In the return filed on behalf of the Trust it was admitted that due to over sight the petitioners could not be called for hearing along with other objectors as the objections filed by the petitioners had inadvertently got placed in some other file and that for the same reason their objec tions were neither considered by the Trust nor forwarded to the State Government along with the summary of the objec tions submitted at the time of sanction for the said scheme It was contended on behalf of the Trust that the infirmity if any stemming from the non consideration by the Trust of the objections filed by the petitioners and sanction of the scheme by the Government in ignorance of the said fact stood cured by the provisions of sub section 2 of Section 42 of the Act
It was in that context the above observation was made by the full bench
Mr Mahajan next contended that though admittedly no tices under section 33 of the said Act were issued on the respondent No 2 and others who are either owners or occupi ers of the lands falling within the improvement scheme of the appellant and the respondent 232 No 2 and others had filed objections against the proposed acquisition of their lands yet on the basis of the said individual notices issued under section 38 of the said Act the respondent No 2 and others are debarred from raising objections against the proposed improvement scheme
It is further submitted that under Section 38 the owners and occupiers of the land affected by the said scheme may merely object to the proposed acquisition of their lands but they cannot file objections against the scheme published
The respondent No 2 and others are therefore deprived of their right to file objections against the scheme as provided in Section 36 of the said Act and so in view of the noncompli ance of the provisions of Section 36 of the said Act by the State Government the development scheme cannot be enforced merely because the State Government notified the sanction of the scheme under section 42 of the Act
The learned counsel appearing on behalf of the appellant on the other hand contended that in compliance of the provisions of Section 36 of the said Act a notice regarding the framing of the development scheme was published in the newspaper Tribune  for three consecutive weeks ie on 9th 16th and 23rd April 1976 inviting objections till 6th May 1976
It is only in the Punjab Government Gazette that the notification was published on 7th 14th and 21st May 1976 inviting objections till 5th May 1976 ie the notification was made in the Punjab Government Gazette after the period for filing objections had expired
It has also been contend ed that individual notices under section 38 of the said Act were served on the owners and occupiers of the immovable property falling under the development scheme intimating them about the acquisition of the land with particulars of the lands failing within the said scheme and inviting their objections to be filed within a period of 60 days from the date of service of the notice
It has also been submitted that the respondent No 2 and others ie the owners of the lands duly submitted their objections against the acquisi tion of the land as well as against the proposed scheme and the same were heard and considered by the prescribed author ity
After the hearing of the objections a notification was made by the State Government sanctioning the said scheme and also that this Trust shall proceed forthwith to execute the said scheme
It has therefore been submitted that in these circumstances the objections raised by the counsel for the respondent No 2 and others are wholly unsustainable being devoid of any merit
It is convenient to mention herein that the award deter mining the compensation was passed in 1980 and the compensa tion to the tune 233 of Rs32 lakhs had already been paid
A sum of Rs23046508 had been spent for the construction of roads and foot paths
Another sum of Rs 1 122 1724 had been spent for lighting of the streets
Another sum of Rs3 lakhs had been paid to the Punjab Water Supply and Sewerage Board for sewerage purposes
Thus a sum of Rs384268235 had already been spent for implementation of the scheme
Several plots had already been sold in open auction
The reference under section 18 of the Act is also pending
In this context we are to consider the contention raised by the learned counsels for the respondent No 2 and others
Under section 24 and 28 of the Punjab Town Improvement Act 1922 the impugned development scheme was prepared by the appellant Trust
The scheme was notified as has been referred herein before in accordance with the provisions of Section 36 of the Act
In so far as the publication of the scheme in the newspaper Tribune  in three consecutive weeks in April 1976 inviting objections thereto till 5th May 1976 is quite in accordance with the provisions of the said section
The Gazette Notification published in three consecutive weeks was however made after expiry of the period of filing objections against this scheme
This has been the bone of contention on behalf of the respondent No 2 and others that this resulted in violation of the provisions of section 36 of the Act as their right to file objections against the scheme was set at naught
This contention in our considered opinion is totally devoid of merit inasmuch as admittedly individual notices under section 38 of the said Act were duly served on all the owners and occupiers of the land falling within the said scheme and purported to be acquired and the respondent No 2 and others admittedly filed objec tions against the proposed acquisition of their land
The said objections were duly considered after hearing the respondent No 2 and others and notice was issued sanction ing the scheme by the State Government
In these circum stances it does not lie in the mouth of respondent No 2 and others to challenge the scheme on the mere plea that the Gazette Notification was not duly published
The legislative intent of provision of section 36 read with section 38 of the said Act is to afford reasonable opportunity to the owners and occupiers affected by the proposed scheme to file objections not only against the scheme but also against the acquisition of their lands falling within the scheme and to achieve this purpose not only notifications in the Govern ment Gazette and newspaper are to be published but also individual notices on each of the person affected are to be served with details of the plots of land failing within the scheme and proposed to be acquired with a view to giving them adequate opportunity to file objections both against the scheme as well as against the proposed acquisition of their lands
It is therefore incomprehensible to contend 234 that non observance of provisions of Section 36 of the said Act by not publishing the notification in the Govern ment Gazette before the expiry of the date for filing the objections renders the publication of the entire development scheme illegal and bad
The above contention in our consid ered opinion is not at all sustainable on the simple ground that the respondent No 2 and others were duly served with the notices under section 38 and they pursuant to that notice duly filed their objections against the acquisition as well as the scheme
The decision of the full bench re ported in Prof Jodh Singh and Ors
vs Jullundur Improvement Trust Jullundur  Ors
supra is not applicable to this case inasmuch as in that case the objections filed under section 38 of the said Act having been misplaced were not at all considered and thereafter the Government issued a noti fication under section 42 of the said Act giving sanction to the scheme itself
In that view of the matter the said decision has no application to the instant case
In these circumstances considering from all aspects we hold that the decision of the courts below is wholly untenable in law and as such they are liable to be set aside
We therefore set aside the decision of the learned single Judge as well as to the Division Bench of the High Court of Punjab and Haryana and allow the appeal setting aside the orders of the courts below
There will however be no order as to costs
GN Appeals allowed


Summary:
In the course of consolidation proceedings under the UP Consolidation of Holdings Act 1953 questions arose amongst the members of a family regarding the title to certain properties
Respondent No 1 filed objections to the original entries in respect of lands in Khata No 72 and 73 on the basis that he was the son of Chhota one Of the sons of Teja the common ancestor
Similarly respondents Nos 2 and 3 filed objections claiming shares in the lands in Khata No 73 on the ground that the said holding was jointly acquired but was recorded in the name of Nanha in a repre sentative character
The appellant contested the claims of respondents Nos 1 2 and 3
The objections were considered by the Consolidation Officer who held that respondent No 1 was the son of Heera alias Chhota brother of Nanha and granted him his share in certain plots of the Khata No 73
The appellant as well as respondents Nos 2 and 3 fried appeals against the said order of the Consolidation Officer
The Assistant Settlement Officer Consolidation allowed the appeal of the appellant and directed that lands in Khata No 73 will be continued in the name of the appellant alone
The respondents went in revision against the order of the Assistant Settlement Officer
The Deputy Director of Consolidation allowed the revision of respondent No 1 in full in respect of share in Khata No 72
As regards plots in Khata No 73 the Deputy Director held that the name of Nanha was entered only in a representative capacity
The appellant filed a writ petition in the High Court to challenge the decision of the Deputy Director of Consolida tion which was dismissed in limine
185 The appellant thereafter filed the civil suit for a declaration that the order of the Deputy Director of Consol idation was without jurisdiction
Contesting the suit respondent No 1 raised a preliminary objection that the suit was barred by section 49 of the Act
The Munsiff decid ed the preliminary objection in favour of respondent No 1
The Additional District and Sessions Judge in appeal af firmed the order of the Munsiff
The second appeal filed by the appellant was dismissed by the High Court in limine
Before this Court it was contended on behalf of the appellant that the bar of section 49 of the Act was not applicable to the suit of the appellant because the orders passed by the consolidation authorities were without juris diction inasmuch as the consolidation authorities could not decide questions as to title to the lands as well as the question relating to the parentage of respondent No 1 which the civil courts alone could decide
Dismissing the appeal this Court HELD 1 The language used in section 49 of the UP Consolidation of Holdings Act 1953 is wide and comprehen sive
Declaration and adjudication of rights of tenure holders in respect of land lying in the area covered by the notification under section 42 of the Act and adjudication of any other right arising out of consolidation proceedings and in regard to which a proceeding could or ought to have been taken under the Act would cover adjudication of ques tions as to title in respect of the said lands
Accordingly the jurisdiction of the civil or revenue courts to entertain any suit or proceeding with respect to rights in such land or with respect to any other matter for which a proceeding could or ought to have been taken under the Act has been taken away
189D E C Suba Singh vs Mahendra Singh and Others  Gorakh Nath Dube vs Hari Narain Singh  referred to
2 In the instant case respondent No 1 was claiming an interest in the land lying in the area covered by the notification issued under section 42 on the basis that he was the son of Chhota brother of Nanha and that the lands were recorded in the name of Nanha in a representative capacity on behalf of himself and his other brothers
This claim which fell within the ambit of section 52 had to be adjudicated by the consolidation authorities under the Act and the jurisdiction of the Civil Court to entertain the suit in respect of the said 186 matter was expressly barred by section 49 of the Act and the suit of the appellant was rightly dismissed on that ground
194C D