C.W.P.No.17381 of 2010 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P.No.17381 of 2010 Date of Decision:- 27.09.2010 Satnam Singh and others ....Petitioner(s) vs. Phagwara Improvement Trust Phagwara and others ...Respondent(s) *** CORAM:- HON'BLE MR.JUSTICE JASBIR SINGH HON'BLE MR.JUSTICE AUGUSTINE GEORGE MASIH *** Present:- Mr.Arun Jain, Sr. Advocate with Mr.Jaivir Chandel, Advocate, for the petitioners. Mr.S.C.Pathela, Advocate, for caveator-respondents No.1 to 3. *** Augustine George Masih J. Through this writ petition, the petitioners have challenged notices dated 16.12.2005, 23.12.2005, 30.12.2005 (Annexures P-2 to P-4) issued under Section 36 of the Punjab Town Improvement Act, 1922 (hereinafter referred to as 'the PTI Act, 1922) and notification dated 11.12.2006 (Annexure P-10) issued under Section 42 of the PTI Act, 1922 as also the award dated 8.12.2008 (Annexure P-14) passed by the Land Acquisition Collector, Improvement Trust, Phagwara being illegal, ultra vires the provisions of the PTI Act, 1922 and corresponding provisions of Land Acquisition Act, 1894 ( hereinafter referred to as the LA Act, 1894). C.W.P.No.17381 of 2010 -2- Counsel for the petitioners submits that Punjab Improvement Trust, Phagwara-respondent No.1 vide resolution No.59 dated 06.12.2006 (Annexure P-9) prepared a development Scheme under the PTI Act, 1922 for planned development of residential and commercial colony in the area of 15.68 acres named as 'South Avenue'. After preparation of the Scheme, notice was issued to the general public which was published in Punjabi Daily Ajit and English Tribune on 12.12.2005, 19.12.2005 and 26.12.2005. It was also published in the Punjab Government Gazette on 16.12.2005, 23.12.2005 and 30.12.2005 vide Annexures P-2 to P-4. Counsel submits that land of the petitioners was not included in these notices. Therefore, the petitioners had no reason to file objections against the said notices. Notification under Section 42 of 1922 Act was published vide notification dated 11.12.2006 (Annexure P-10). He contends that in pursuance of the said notifications award dated 8.12.2008 (Annexure P-14) was passed by the Land Acquisition Collector, Improvement Trust, Phagwara. He contends that although the award only takes into consideration notices dated 16.12.2005, 23.12.2005 and 30.12.2005 (Annexures P-2 to P-4) but the land of the petitioners, which was not included in these notices, stands acquired and the award was passed merely because notification dated 11.12.2006 (Annexure P-10) issued under Section 42 of the PTI Act, 1922 included their land. He, on this basis, submits that the acquisition proceedings qua the petitioners cannot be sustained being not in accordance with the Statute. He further contends that the right of the petitioners to file objections to the Scheme published under Section 36 of the PTI Act, 1922 stands extinguished by notification issued with regard to the land of the petitioners under Section 42 of the PTI Act without the C.W.P.No.17381 of 2010 -3- land of the petitioners having been included in notices issued under Section 36 of the PTI Act, 1922 and, therefore, the impugned notices and the award deserve to be quashed. His further contention is that the requirement of law is that firstly the government notification should have been issued and only thereafter the publication in the newspapers could have been issued, whereas in the present case, first gazette notification is dated 16.12.2005 whereas the first publication in Punjabi Ajit and English Tribune is dated 12.12.2005 which is in violation of Section 36(2) of the PTI Act, 1922. In any case, counsel submits that the “No Objection Certificate” issued by the Government on 31.10.2008 is conditional one which requires that the Trust will provide 60 feet wide road in the layout plan of the Scheme. Even the award passed by the Land Acquisition Collector refers to this aspect and, therefore, the award itself is conditional one which cannot be said to be in accordance with law. He contends that the Improvement Trust had subsequently, vide resolutions, requested the Government that the Scheme cannot be executed feasibly with 60 feet wide road but the said resolution was not accepted by the Government. The Trust is an autonomous body and the Government cannot impose its decisions upon it. His further contention is that before passing of the Award, the petitioners were not aware that their land is being acquired and, therefore, could not submit their objections to the acquisition and it is only after the passing of the award that the petitioners had submitted their representations. This submission has been made by the counsel for the petitioners on receipt of instructions from petitioner No.1 Satnam Singh, C.W.P.No.17381 of 2010 -4- who is present in Court. In view of these submissions, counsel prays that the present writ petition be allowed and the impugned notices and award be set aside qua the petitioners. Phagwara Improvement Trust, Phagwara is on caveat. Counsel for the caveator was called upon to respond to the submissions made by the counsel for the petitioner who submits that a deliberate attempt has been made on the part of the petitioners to mislead this Court. Counsel for the petitioners has not, during his arguments, brought to the notice of the Court that after the publication of the initial notices Annexures P-2 to P-4 under Section 36 of the Act, a corrigendum was also issued on 16.12.2005 (Annexure P-5) which was published in the official Gazette on 23.12.2005 and 30.12.2005 and in newspaper Punjabi Ajit on 18.12.2005 and in English Tribune on 19.12.2005 which was followed by further publications as per the requirement of the Statute. Cornered by this fact, counsel for the petitioners tried to explain that these facts have been duly mentioned in the writ petition itself and, therefore, it was not the intention of the petitioners to mislead this Court. Had it been their intention, the fact itself would not have been mentioned in the writ petition. It was merely by inadvertence that he had missed to bring it to the notice of the Court. He has tried to explain out his position by stating that on the issuance of the corrigendum, 80 per cent changes were brought about by the respondents. About 95 per cent khasra numbers were altered. Some khasra numbers were newly added and/or some khasra numbers were changed. He, however, admits that in this corrigendum which was issued, land of the petitioners was included in the acquisition. He further admitted that no objections were filed by the C.W.P.No.17381 of 2010 -5- petitioners to the said notices. This explanation of the counsel for the petitioners is totally unacceptable in the light of the earlier submission which they had made before this Court that the land of the petitioners was not included in the notices under Section 36 of the PTI Act, 1922 and, therefore, they could not file their objections to the said notices and their valuable rights have been extinguished. We are not commenting further on this aspect except that in the light of the fact that the petitioners have failed to file objections under Section 36 of the PTI Act 1922, they cannot, at this stage, challenge the said notices and the petition qua that challenge is not maintainable in the light of ratio of the judgments of the Hon'ble Supreme Court in the cases of Talson Real Estate Pvt.Ltd. vs. State of Maharashtra and others, (2007) 13 SCC 186 and Delhi Administration vs. Gurdip Singh Uban and others, (2000) 7 SCC 296. Strangely but co-incidentally one of the grounds which has been raised for challenging the Notices (Annexures P-2 to P-4) is that the same should have first been published in the Official Gazette and thereafter only could be published in the newspapers. This further shows that the petitioners were aware about their land being included in the notices and, therefore, were aggrieved by the process of publication of the notices as mandated under Section 36 (2) (a) of the PTI Act, 1922. Section 36 of the PTI Act, 1922 reads as follows:- “36. Preparation, publication and transmission of notice as to improvement schemes, and supply of C.W.P.No.17381 of 2010 -6- documents to applicants.- (1) When a scheme under this Act has been framed, the trust shall prepare a notice stating- (i) the fact that the scheme has been framed, (ii) the boundaries of the locality comprised in the scheme, and (iii) the place at which details of the scheme including a statement of the land proposed to be acquired and a general map of the locality comprised in the scheme may be inspected at reasonable hours. (2) The trust shall- (a) notwithstanding anything contained in section 78 cause the said notice to be published weekly for three consecutive weeks in the Official Gazette and in a newspaper or newspapers with a statement of the period within which objections will be received, and (b) send a copy of the notice to the president of the municipal committee, and to the medical officer of health. (3) The chairman shall cause copies of all documents referred to in clause (iii) of sub-section (1) to be delivered to any applicant on payment of such fees as may be prescribed by rule under section 74.” As per sub-section (1) of Section 36, after the Scheme under C.W.P.No.17381 of 2010 -7- the Act has been framed, the Trust is mandated to prepare a notice which must state the factum of the Scheme having been framed, the boundaries of the locality comprising the Scheme and the place at which details of the Scheme which would include a statement of the land proposed to be acquired and a general map of the locality comprising the scheme may be inspected at reasonable hours. Sub-section (2) provides for the manner and mode of publication of the notice weekly, i.e. in the Official Gazette and in a newspaper or newspapers for three consecutive weeks, with a statement of the period within which objections will be received. Here, it needs to be emphasized that there is no requirement of issuance of notification in the Official Gazette as mandated under Section 4 (1) of the LA Act, 1894 on which reliance was made by the counsel for the petitioners stating it to be pari materia with Section 36 of the PTI Act, 1922. As a matter of fact, Section 36 could be termed as pari materia with Section 6 of the LA Act, 1894 where also sub-clause (2) provides for publication of the declaration in the Official Gazette and two daily newspapers circulated in the locality in which the land is situated. Since no notification in the Official Gazette is mandated under Section 36 of the PTI Act, 1922, and the publication in the Official Gazette and the newspaper(s) is the mode prescribed for such publication, it does not make a difference as to whether the notice was issued first in the newspaper or in the Official Gazette. The requirement is publication of the notice in the Official Gazette and in newspaper or newspapers. It no where indicates that the publication in the Official Gazette should precede publication in the newspaper or newspapers. It has not been disputed that the publications otherwise have been made and issued as per the C.W.P.No.17381 of 2010 -8- provisions of Section 36 of the PTI Act, 1922. It is only that first publication in the newspaper has preceded the first publication in the Official Gazette. By this, no prejudice has been caused to the petitioners as despite the publication of the notice, no objections have been preferred by them. Conduct of the petitioners is further reflected in the next submission which was put-forth by the counsel for the caveator that in response to notice under Section 38 of the PTI Act, 1922, petitioner No.1 had filed his objections which had been duly considered and rejected by the Trust vide its resolution No.20 dated 20.3.2006 (Annexure P-6). Records of the said consideration have been produced by the counsel for the respondents in Court which have been perused by us. Petitioner No.1, who is present in Court, at this stage has admitted this fact. Even while passing the award, the Land Acquisition Collector while dealing with the representation submitted by the petitioners which was filed in response to notice issued under Section 9 of the LA Act, 1894, has considered the same which further fortifies the fact that petitioner No.1 was aware of his land being acquired and had, as a matter of fact, filed objections. It further shows that petitioner No.1 falsely stated before this Court that he was not aware that his land was being acquired and, therefore, could not file any objection/representation to the respondents against the acquisition before passing of the Award. Counsel for the petitioners felt really embarrassed at the conduct of the petitioners and has shown his helplessness. With this factual position, the basic plank on which the counsel for the petitioners had placed reliance praying for quashing of the notifications that petitioner No.1 was not aware of his land being C.W.P.No.17381 of 2010 -9- acquired and had, therefore, not filed any objections to the respondent-Trust before the passing of the Award, falls flat on the ground. This is a deliberate attempt on the part of the petitioners to mislead and misguide the Court and we could have taken very serious note of it but exercising our judicial restraint, we prefer not to initiate contempt proceedings against the petitioners for which this case is fit for. The petitioners are, thus, not entitled to any relief in equity and especially when they have not approached this Court with clean hands and have made an effort to over-reach the Court. As regards the contention of the counsel for the petitioners that “No Objection Certificate” issued by the Government is conditional one and the said conditions find mentioned in the award itself and, therefore, the award is also conditional, suffice it to say that it is not a condition precedent but a requirement which has been mandated by the Government under its jurisdiction and the Authority, which requirement has been accepted by the respondent-Improvement Trust as is apparent from the impugned Award wherein it has been observed as follows:- “The Trust has informed vide Memo No.723 dated 11.11.2008 to the undersigned that the Religious place falling in the scheme will be adjusted in the layout plan of the scheme and the possession of which will not be taken, so this land is excluded from the Award. Further in this letter Trust has also informed that change of land use from Green Buffer Zone to Residential has been permitted by the Deputy District Town Planner Kapurthala vide his letter No.523/DTP (K) GLK dated C.W.P.No.17381 of 2010 -10- 31.05.2007. As regard provision of 60' wide road which is to be provided in the Layout plan of the scheme for which the Trust has clarified that necessary change in the layout plan under Section 43 of Punjab Town Improvement Act, 1922 will be made before the execution of the scheme.” The Trust is, thus, not objecting to the conditions as imposed by the Government and has rather accepted the same, therefore, this contention of the counsel for the petitioner cannot be accepted, as also his contention that the Government has imposed and thrusted the Scheme upon the Trust which is an autonomous body and not permissible in law when the respondent-Trust has itself accepted the condition imposed by the Government. There is no question of the Government imposing its decision upon the Trust. Otherwise also, the present writ petition has been filed at a belated stage challenging the award dated 8.12.2008 i.e. after more than one year and nine months on the grounds which were available to them before the passing of the award but they had chosen not to avail the said opportunity at that stage and therefore, now at this belated stage after the passing of the award, they are estopped from doing so. Accordingly, the present writ petition is not maintainable in the light of the law laid down by the Hon'ble Supreme Court in the cases of Municipal Corporation of Greater Bombay vs. Industrial Development and Investment Company (P) Limited, (1996) 11 SCC 501; Municipal Council, Ahmednagar vs. Shah Hyder Beig, (2000) 2 SCC 48; C.Padma vs. Deputy Secretary to the Government of Tamil Nadu, (1997) 2 SCC C.W.P.No.17381 of 2010 -11- 627; Star Wire (India) Ltd. vs. State of Haryana, (1996) 11 SCC 698; M/s Swaika Properties Pvt. Ltd. vs. State of Rajasthan, JT 2008 (2) SC 280 and Sawaran Lata, etc. vs. State of Haryana & others, AIR 2010 Supreme Court 1664. In view of above, the present writ petition is dismissed. ( JASBIR SINGH ) ( AUGUSTINE GEORGE MASIH ) JUDGE JUDGE September 22, 2010 poonam Whether referred to reporters? Yes/No.