C.W.P.No.43 of 2008 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision:- 15.12.2010 C.W.P.No.43 of 2008 Dalbir Singh Dhindsa and others ....Petitioner(s) vs. State of Punjab and others ....Respondent(s) C.W.P.No.19615 of 2007 Gurjit Singh and others ....Petitioner(s) vs. State of Punjab and others ....Respondent(s) C.W.P.No.18458 of 2007 Parminder Singh and others ....Petitioner(s) vs. State of Punjab and others ....Respondent(s) C.W.P.No.18281 of 2007 Harbans Kaur and others ....Petitioner(s) vs. State of Punjab and others ....Respondent(s) C.W.P.No.17830 of 2007 Ashwani Kumar and others ....Petitioner(s) vs. State of Punjab and others ....Respondent(s) C.W.P.No.17723 of 2007 Harjit Singh ....Petitioner(s) vs. State of Punjab and others ....Respondent(s) C.W.P.No.43 of 2008 -2- C.W.P.No.7253 of 2007 Gurmeet Singh ....Petitioner(s) vs. State of Punjab and others ....Respondent(s) C.W.P.No.6864 of 2007 Sham Lal and others ....Petitioner(s) vs. State of Punjab and others ....Respondent(s) *** CORAM:- HON'BLE MR.JUSTICE JASBIR SINGH HON'BLE MR.JUSTICE AUGUSTINE GEORGE MASIH *** Present:- Mr.G.S.Grewal, Sr. Advocate with Ms.Tanisha Peshawaria, Advocate Mr.Akshay Bhan, Advocate, Mr.Amit Jain, Advocate, for the petitioners. Ms.Reeta Kohli, Addl.A.G., Punjab None for the Improvement Trust. *** Augustine George Masih, J. By this order, we propose to dispose of C.W.P.Nos.43 of 2008, 19615 of 2007, 18458 of 2007, 18281 of 2007, 17830 of 2007, 17723 of 2007, 7253 of 2007 and 6864 of 2007 as common questions of law and almost similar facts are involved in all these cases. These writ petitions are taken up together primarily because challenge in these writ petitions is to the quashing of the notification issued under Section 36 dated 17.12.2004 (Annexure P-1) and notification under Section 42 dated 21.11.2005 (Annexure P-2) issued under the Punjab Town Improvement Act, 1922 ( hereinafter referred to as PTI Act ) and the award C.W.P.No.43 of 2008 -3- dated 16.3.2007 (Annexure P-3) passed by the Land Acqusition Collector, Gurdaspur Improvement Trust, Gurdaspur on the ground that the permission granted to different authorities to carry out the work of development in Gurdaspur by the State Government is arbitrary and discriminatory, as also on the ground that the jurisdiction to acquire land under the PTI Act for the development work is unconstitutional as it violates the provisions of Articles 243-G, 243-N, 243-Q, 243 ZD, 243 ZF of the Constitution of India which have been incorporated by 73rd and 74th amendment of the Constitution of India. The facts are being taken from C.W.P.No.43 of 2008 titled as Dalbir Singh Dhindsa and others vs. State of Punjab and others. Respondent No.2-Gurdaspur Improvement Trust, Gurdaspur (hereinafter referred to as Trust) has been constituted under the PTI Act. A notification was issued by the Trust under Section 36 of the PTI Act, on 17.12.2004 (Annexure P-1) for acquiring 84.77 acres of land under Scheme No.7 for setting up of residential area, which was framed under Section 24 & 28 of the PTI Act. Objections were invited thereto. Some of the petitioners did file objections which were duly considered by the Trust and thereafter the Scheme was referred to the State Government for its approval. Vide resolution No.20 dated 30.9.2005 passed by the Trust under Section 40(2) of the PTI Act, the Scheme and all relevant documents were sent to the Government, it being the competent Authority to sanction, reject or return the Scheme as per the provisions of Section 41 of the PTI Act. The Government, on consideration of the Scheme, accorded final approval to the Scheme on 11.10.2005. Consequently, final notification dated 21.11.2005 (Annexure P-2) in regard to sanction of the Scheme was C.W.P.No.43 of 2008 -4- issued under Section 42 of the PTI Act by the Government. Thereafter, award (Annexure P-3) was passed by the Collector Land Acquisition, Gurdaspur Improvement Trust, Gurdaspur on 16.3.2007. The present writ petition was filed by the petitioners challenging the above two notifications as also the award. Counsel for the petitioners contends that the petitioners were not served with personal notices as mandated under Section 38 of the PTI Act. He contends that service upon the co-sharers of the property would not amount to proper service as provided under Section 38 of the Act and, therefore, notification issued under Section 42 of the Act is void which has deprived the petitioners of their valuable right to file objections against the Scheme. Some of the petitioners have built houses/commercial establishments and, therefore, are being deprived of their right of shelter and livelihood. His contention is that according to 73rd and 74th amendment of the Constitution of India, the power to formulate the Scheme for the expansion of cities vests with the District Planning Committees. To support this contention, reliance has been placed on Articles 243-G, 243-N, 243-Q, 243-D, 243ZF of the Constitution. He contends that these Articles envisage that there shall be in every State at district level a District Planning Committee to consolidate the Gram Panchayats and Municipal Committees and then to prepare the draft development of the whole district. These provisions being constitutional, supersede the provisions in ordinary law. A planning, if proposed in an area which is part of a municipality, has to be initiated at the district level through an appropriate committee. The function of the State is only to provide financial assistance to the Municipality or facilitate the creation of other avenues of income. He C.W.P.No.43 of 2008 -5- contends that acquisition of the land under the PTI Act is, thus, not sustainable and the whole acquisition deserves to be quashed. His further contention is that on account of issuance of notification under the PTI Act, the petitioners have been discriminated against as the determination of the amount of compensation under the PTI Act and the Land Acquisition Act, 1894 (hereinafter referred to as LA Act) is based on different principles and the provisions of the PTI Act is against the interest of the land owners whereas the provisions of the LA Act entitle them to better compensation. As the provisions of the LA Act do not apply to the PTI Act, the petitioners have been deprived of their right of equitable compensation as per the market value of their land. Article 14 of the Constitution of India stood violated as had the land been acquired under the LA Act, the petitioners would have been entitled to the protection of the provisions of this Act which would not be applicable to the PTI Act and thus has deprived the petitioners of the said benefit. In support of this contention, counsel for the petitioners relies upon a judgment of the Hon'ble Supreme Court in the case of Nagpur Improvement Trust and another vs. Vithhal Rao and others, 1973 (1) SCC 500 and on this basis, he prays for quashing of the Award dated 16.3.2007 (Annexure P-3). On the other hand, counsel for the respondents submits that most of the petitioners in the writ petitions were duly served with personal notices. He contends that the mandate of Section 38 is not that each individual has to be served individually when there are co-owners to a property. It would be a sufficient notice if the same has been served on one of the co-owners. In support of this contention, counsel relies upon a judgment of the Hon'ble Supreme Court in the case of Teja Singh & others C.W.P.No.43 of 2008 -6- vs. The State of Punjab and another, 1995 PLJ 419. He contends that most of the petitioners had preferred objections to the notice issued under Section 36 of the PTI Act which were duly considered by the competent Authority and rejected. Most of the petitioners have accepted the amount of compensation and have filed references under Section 18 of the LA Act which is pending adjudication before the Tribunal. In cases where the compensation has not been accepted, the same stands deposited with the competent Authority and the petitioners may claim the same. He, thus, contends that the writ petition is not maintainable after the passing of the award in the light of various judgments of the Hon'ble Supreme Court. As regards the contention of the petitioners with regard to the effect of 73rd and 74th amendment of the Constitution of India, he contends that the same would not be applicable to the Trust as the functions of the Trust would not fall within the purview of the District Level Planning Committee. In support of this contention, counsel for the petitioners relies upon a Division Bench judgment of this Court in C.W.P.No.4702 of 2008, Dwarka Dass and others vs. State of Haryana and others decided on 28.5.2010. He, on this basis, prays that the writ petitions deserve to be dismissed being devoid of any merit. On the objection raised by the respondents that the petitioners have approached this Court after the passing of the Award, counsel for the petitioners contends that the compensation amount so offered to the petitioners as per the award, has not been accepted by them and some of them have also not preferred reference under Section 18 of the Land Acquisition Act. Accordingly, he prays that the present writ petitions be allowed and the notifications issued under Sections 36 and 42 (Annexures C.W.P.No.43 of 2008 -7- P-1 & P-2 respectively) of the Act and the Award (Annexure P-3) be quashed. We have heard counsel for the parties and have gone through the records of the case. The first contention which requires to be dealt with is whether the service of notice under Section 38 of the PTI Act on a co-owner or occupier would amount to sufficient service of notice as envisaged under it. This would not detain us for long as the issue stands concluded against the petitioners in the judgment of the Hon'ble Supreme Court in Teja Singh's case (supra) wherein the Hon'ble Supreme Court in paras 6 to 9 held as follows:- “6. The question thus arises whether notices on one co-owner is notice on other co-owners. Indisputably the petitioner Nos.1, 4, 5 and 6 being brothers, are co- owners. Similarly, Vikram Singh and Kartar Singh are brothers and are co-owners. It is stated across the bar by Shri Sharma that the brothers are not on speaking terms. The fact that all of them have jointly filed the appeal in this Court and engaged the same counsel, would clearly indicate that they are sailing together and the professed hostile terms is a pretense. 7. It is true that Section 38(1) provides that every person whom the Trust has reason to believe, after due enquiry, to be the owner of any immovable property which it is proposed to acquire in executing the scheme or the occupier, shall be served with the notice thereof. C.W.P.No.43 of 2008 -8- Section 79(2) of the Act in this behalf lends some clue on the due service of notice on co-owner. It states that every notice other than a public notice and every bill issued under this Act shall, unless it is otherwise expressly provided under this Act, be served or presented when a notice is required or permitted under this Act to be served upon an owner or occupier, as the case may be, of a building or land, it shall not be necessary to name the owner or occupier therein and the service thereof in such cases not otherwise specifically provided for in this Act shall be effected either by giving or tendering the notice, or sending it by post, to the owner or occupier, or if there be “more owners or occupiers than one, to any one of them”. It would thus be clear that the legislature itself being aware of the existence of co-owners or occupiers, authorised the Trust to have the notice given, tendered or served on one owner or occupier and such service of notice is legal and valid notice. Even otherwise on principle of law also, it is common knowledge that every co-owner may not be in occupation of the land or may not be cultivating the land or be in actual possession. He may be residing elsewhere due to educational or pursuit of professional job etc. So, they may not be available for service. Legislature being cognizant to this situation, has taken care to see that if more than one owner or occupier have interest in the land and the land belonging C.W.P.No.43 of 2008 -9- to co-owners or occupiers is sought to be acquired, service on one, is taken as service on all the co-owners. 8. Shri Sharma contends that if the Act would not have provided for any procedure for such service, then only the benefit of Section 79(2)(a) gets attracted and since Section 38 has otherwise provided, the procedure for service of notice, benefit under Section 79(2)(a) is not available. We find no force in the contention. A conjoint reading of these clauses would clearly postulate that when the Act has not otherwise specifically provided the notice served etc. on one is a notice to or on behalf of co-owners and is a valid notice. Section 38 did not expressly state that notice shall be served on all owners if more than one co-owners has interest in the land under acquisition. Reliance on clause (a) of sub-section (1) of Section 38 to contend that that “every person” referred therein would include all co-owners and that, therefore, notice is required to be served on all the co-owners is misconceived. It is to be remembered that clause (a) of sub-section (1) of Section 38 gives power to the Trust to effectuate service of notice on the person whom the Trust has reason to believe, after due enquiry, to be the owner or occupier of the immovable property sought to be acquired for implementing the scheme. The formation of belief of ownership or occupation is distinct and separate from the service of notice on those found to have joint C.W.P.No.43 of 2008 -10- ownership. What clause (a) of sub-section (1) of Section 38 contemplates is only to find out who is believed to be owner or occupier of the land sought to be acquired by the Trust. If this is noted, it would be clear that the aforesaid clause does not deal with service of notice, which has been dealt by Section 79(2)(a). 9. Thus we hold that service of notice on one of the co-owners, when more than one have interest in the acquired land, would be sufficient service of notice on other co-owners. Therefore, non-service of notice on the petitioners No.1, 4 and 6 and Bikram Singh does not invalidate the scheme framed by the Trust. So it is a valid scheme.” The second contention of the counsel for the petitioners with regard to the non-applicability of the provisions of the PTI Act for the work of development in view of 73rd and 74th amendment of the Constitution of India with special reference to the provisions as contained in Articles 243-G, 243-N, 243-Q, 243-ZD & 243 ZF, the same is no more res integra in the light of the Division Bench Judgment of this Court in Dwarka Dass's (supra) wherein it has been held as follows:- “It is argued that the State of Haryana has not constituted the Regional Development Committee even though a period of one year has elapsed and, thus, the present acquisition is ex- facie illegal. It must be kept in mind that Article 243ZD of the Constitution deals with a subject which essentially falls within C.W.P.No.43 of 2008 -11- the State list at entry No.6 and that is why it stipulates a discretion in the State to legislate for the purposes mentioned therein. In Shanti G. Patel and others vs State of Maharashtra and others, (2006) 2 SCC 505, the Hon'ble Supreme Court held as follows :- “ 9. Article 243-W whereupon great emphasis has been laid by the petitioners herein provides for an enabling clause so as to enable the State to endow by law the municipality with such powers and authority, as may be necessary, to enable the State to make, by law, by endowing the municipalities to function as institutions of self-government which may contain provisions for the devolution of powers and responsibilities subject to the conditions which may be specified in the Twelfth Schedule. The Twelfth Schedule of the Constitution referable to Article 243-W, inter alia, provides for urban planning including town planning, regulation of land- use and construction of buildings. Thus, Article 243-W contains merely an enabling provision, and it does not mean that the State is obligated to provide for such a statute. The Constitution (Seventy-fourth Amendment) Act, in any event, does not envisage that the existing laws would become non-operative or a vacuum would be created in the matter of enforcement of existing laws relating to urban planning and/or regulation of land-use and construction of buildings, etc.” C.W.P.No.43 of 2008 -12- In yet another later decision in Bondu Ramaswamy v. Bangalore Development Authority and others, Civil Appeal No.4097 of 2010 decided on 5.5.2010, the Hon'ble Supreme Court was considering the question of acquisition of certain land on the ground that it was invalid with reference to Parts IX and IXA of the Constitution. The Hon'ble Supreme Court held as follows :- “ 12. Part IX and IX-A of the Constitution, relating to Panchayats and Municipalities were inserted by the Constitution (Seventy- third Amendment) Act, 1992 and Constitution (Seventy-fourth Amendment) Act, 1992. Part IX and IX-A came into force on 24.4.1993 and 1.6.1993 respectively. The object of Part-IX was to introduce the Panchayat system at grass root revel. As Panchayat systems were based on State legislations and their functioning was unsatisfactory, the amendment to the Constitution sought to strengthen the Panchayat system by giving a uniform constitutional base so that the Panchayats become vibrant units of administration in the rural area by establishing strong, effective and democratic local administration so that there can be rapid implementation of rural C.W.P.No.43 of 2008 -13- development programmes. The object of Part-IX as stated in the Statement of Objects and Reasons is extracted below :- ` In many States, local bodies have become weak and ineffective on account of variety of reasons, including the failure to hold regular elections, prolonged supersessions and inadequate devolution of powers and functions. As a result, urban local bodies are not able to perform effectively as vibrant democratic units of self-Government. Having regard to these inadequacies, it is considered necessary that provisions relating to urban local bodies are incorporated in the Constitution, particularly for- (i) putting on a firmer footing the relationship between the State Government and the Urban Local Bodies with respect to :- (a) the functions and taxation powers, and (b) arrangements for revenue sharing. C.W.P.No.43 of 2008 -14- (ii) ensuring regular conduct of elections. (iii) ensuring timely elections in the case of supersession; and (iv) providing adequate representation for the weaker sections like Scheduled Castes, Scheduled Tribes and women.' xx xx xx xx 22. To enable the municipalities (that is municipal corporations, municipal councils and Nagar Panchayats) to function as institutions of self-government, Article 243W authorizes the legislature of a State to endow to the municipalities, such powers and authority as may be necessary, by law. Such law made by the State legislature may contain provision for the devolution of powers and responsibilities upon municipalities, with respect to the following : (i) The preparation of plans for economic development and social justice; and (ii) The performance of functions and implementation of schemes as C.W.P.No.43 of 2008 -15- may be entrusted to them including those in relation to the following matters (earmarked in the twelfth schedule) : 1. Urban planning including town planning. 2. Regulation of land-use and construction of buildings. 3. Planning for economic and social development. 4. Roads and bridges. 5. Water supply for domestic, industrial and commercial purposes. 6. Public health, sanitation conservancy and solid waste management. 7. Fire services. 8. Urban forestry, protection of the environment and promotion of ecological aspects. 9. Safeguarding the interests of weaker sections of society, including the handicapped and mentally retarded. 10. Slum improvement and upgradation. C.W.P.No.43 of 2008 -16- 11. Urban poverty alleviation. 12. Provision of urban amenities and facilities such as parks, gardens, playgrounds. 13. Promotion of cultural, educational and aesthetic aspects. 14. Burials and burial grounds; cremations, cremation grounds; and electric crematoriums. 15. Cattle pounds; prevention of cruelty to animals. 16. Vital statistics including registration of births and deaths. 17. Public amenities including street lighting, parking lots, bus stops and public conveniences. 18. Regulation of slaughter houses and tanneries. The aforesaid powers and authority (enumerated in the twelfth Schedule) may also be endowed to the Ward Committees which are required to be constituted, by Article 243S xx xx xx xx xx. 23. On the other hand, the purpose and object of the BDA is to act as a development authority for the development of the city of C.W.P.No.43 of 2008 -17- Bangalore and areas adjacent thereto. The Preamble of BDA Act describes it as `an Act to provide for the establishment of a Development Authority for the development of the city of Bangalore and areas adjacent thereto and for matters connected therewith. The development contemplated by the BDA Act is “carrying out of building, engineering or other operations in or over or under land or the making of any material change in any building or land and includes redevelopment” (vide Section 2(j) of BDA Act). Therefore, the purpose is to make lay outs, construct buildings or carry out other operations in regard to land. Municipalities are not concerned with nor entrusted with functions similar to those entrusted to BDA under the BDA Act, that is building, engineering or other operations by forming layout of plots with all amenities, construction of houses and apartments, as a part of any scheme to develop a city. Municipalities are concerned with the overall economic development providing social justice (urban poverty alleviation and slum improvement) regulating land use and C.W.P.No.43 of 2008 -18- constructions, providing amenities (roads, bridges, water supply, fire services, street lighting, parking, bus stops, public conveniences), promoting education and culture etc. Neither urban town planning nor regulation of land use and construction, is similar to the `development' as contemplated in BDA Act, that is carrying out building, engineering operations in or over or under land. It would thus be seen that the object and functions of a Municipal Corporation are completely different from the object and purpose of a development authority like BDA, BDA is not a municipality. Therefore, it cannot be said that mere existence of Municipal Corporations Act, duly amended to bring it in conformity with Part IX-A of the Constitution, will nullify or render redundant, the BDA Act. Xx xx xx xx 26. The appellants submitted that the powers, authority and responsibilities to be endowed by the State Legislature upon the Municipalities are enumerated in Article 243W read with Twelfth Schedule; that Articles 243ZD and 243ZE require the State C.W.P.No.43 of 2008 -19- government to constitute a District Planning Committee at District Level and a Metropolitan Planning Committee for every Metropolitan Area; that such Metropolitan Planning Committee is required to prepare a draft development plan for the Metropolitan Area as a whole. It was contended that the BDA Act was a Legislation which related to some of the responsibilities and functions of Municipalities, enumerated in the Twelfth Schedule to the Constitution read with Article 243W and that its provisions, in particular, sections 15 to 19 were inconsistent with the provisions of Part IXA of the Constitution; that no law can entrust powers and responsibilities referred to in Article 243W including those relating to matters listed in Twelfth Schedule to an authority other than an authority having popular mandate; and that therefore the BDA Act entrusting such powers and responsibilities to a non-elected authority ceases to be in force. 27. While it is true that BDA is not an elected body like the municipality, it has several elected representatives as members. C.W.P.No.43 of 2008 -20- Section 3 relates to the Constitution of the Authority and provides that the Authority shall consist of 22 members and made up as