1996 JTR(SC) 1388
1996 AIR(SCW) 3975 ; 1996 11 JT 49 ; 1997 1 PLJ 381 ; 1997 1 RCR(Civ) 578 ; 1996 7 Scale 146 ; 1996 11 SCC 644 ; 1996 3 SCJ 285 ; 1996 Supp5 SCR 502 ; 1996 KHC 1451 ; 1996 7 Supreme 402
1996(7) Supreme 402
SUPREME COURT OF INDIA
K. Ramaswamy and Faizan Uddin, JJ.
Smt. Winky Dilawari & Anr. -Appellants
versus
Amritsar Improvement Trust, Amritsar -Respondent
Civil Appeal No. 1526 of 1994
Decided On 3-9-1996
Counsel for the Parties :
For the Appellants : D.V. Sehgal, Sr. Advocate, A.T.M. Sampath, Ms. Monica Gosain, Advocates.
For the Respondent : E.C. Agrawala, Advocate.
IMPORTANT POINT
Reasonable belief, after due enquiry, contemplated u/s 38(l)(i) of Punjab Town Improvement Act would envisage that persons who were reputed to be known as owners of immovable property proposed to be acquired, were the actual owner of property.
Act
Referred
:ANDHRA PRADESH RULES FRAMED UNDER REGISTRATION ACT : S.17
CIVIL PROCEDURE CODE : S.9, O.39 R.1
LAND ACQUISITION ACT : S.9, S.4
PUNJAB TOWN IMPROVEMENT ACT : S.38, S.42(2), S.40, S.36
(A) The appeal pertains to the validity of a land acquisition scheme framed under the Punjab Town Improvement Act, 1922, read with the Land Acquisition Act. Section 36 of the Punjab Town Improvement Act authorized the Trust to frame a Scheme for providing passage to the Guru Nanak Stadium from Madan Mohan Malviya Road. The Scheme was published as required under Section 78, notice was issued to the Municipal Committee and Medical Officer under Section 38(1)(i), and no objections were received. The Scheme was subsequently approved by the Government under Section 40, and by operation of Section 42(2), such approval became conclusive evidence of due sanction. Proceedings for acquisition were then initiated under the Schedule read with Section 59. The contention before the Court revolves around whether the Trusts failure to serve a personal notice on the appellant, who purchased the land after the Scheme was published but before mutation, vitiates the acquisition.
(B) Public authorities are not required to make continuous enquiries in the Sub-Registrars office to identify the owner of property proposed for acquisition. A notice published under Section 36 and served to the Municipality and local authorities is sufficient if the authority has reason to believe, after due enquiry, that the person in possession or known through public records is the owner. The procedure under the Act is directory, and non-compliance does not automatically invalidate the acquisition unless prejudice is proved. The principles of constructive notice and the primacy of public interest over personal occupation were emphasized.
Facts of the case:
The Trust framed a Scheme under Section 36 of the Punjab Town Improvement Act for providing access to Guru Nanak Stadium from Madan Mohan Malviya Road. The Scheme was published in official and local newspapers, and notice was sent to the Municipal Committee and Medical Officer. The appellant purchased a vacant site after publication of the Scheme but before mutation. The Government approved the Scheme under Section 40, and acquisition proceedings were initiated under the Schedule read with Section 59. The appellant was not personally served a notice under Section 38.
Findings of Court:
It was held that the public authorities were not required to track successive transfers or mutations in the Sub-Registrars office. The publication under Section 36 and communication to the Municipality fulfilled the requirements of Sections 38 and 42(2). The failure to serve the appellant did not vitiate the proceedings. The Scheme was not mala fide, as the Municipal body had to withdraw its earlier proposal. The courts below correctly exercised discretion by refusing an injunction, and the suit under Section 9 of the Code of Civil Procedure was held non-maintainable. The appellant was directed to be accommodated in an alternative site of 250 sq. yds at the prevailing reserved price.
Issues:
Whether the Trust was required to serve a personal notice on the appellant who purchased the land after the Scheme was published; whether the failure to do so vitiates the acquisition; whether the acquisition was mala fide; whether the courts below correctly refused an injunction; and whether the suit under Section 9 of the Code of Civil Procedure was maintainable.
Ratio Decidendi:
The Scheme framed under Section 36 and approved under Section 40, with publication under Section 42(2), rendered the acquisition conclusive. Public authorities are not bound to make continuous enquiries in the Sub-Registrars office, and the directory procedure does not vitiate the acquisition in the absence of proven prejudice. Public interest outweighs personal occupation, and alternative accommodation is mandated.
Result:
The appeal is dismissed with the above observations, and no costs are awarded.
(A) The appeal pertains to the validity of a land acquisition scheme framed under the Punjab Town Improvement Act, 1922, read with the Land Acquisition Act. Section 36 of the Punjab Town Improvement Act authorized the Trust to frame a Scheme for providing passage to the Guru Nanak Stadium from Madan Mohan Malviya Road. The Scheme was published as required under Section 78, notice was issued to the Municipal Committee and Medical Officer under Section 38(1)(i), and no objections were received. The Scheme was subsequently approved by the Government under Section 40, and by operation of Section 42(2), such approval became conclusive evidence of due sanction. Proceedings for acquisition were then initiated under the Schedule read with Section 59. The contention before the Court revolves around whether the Trusts failure to serve a personal notice on the appellant, who purchased the land after the Scheme was published but before mutation, vitiates the acquisition.
(B) Public authorities are not required to make continuous enquiries in the Sub-Registrars office to identify the owner of property proposed for acquisition. A notice published under Section 36 and served to the Municipality and local authorities is sufficient if the authority has reason to believe, after due enquiry, that the person in possession or known through public records is the owner. The procedure under the Act is directory, and non-compliance does not automatically invalidate the acquisition unless prejudice is proved. The principles of constructive notice and the primacy of public interest over personal occupation were emphasized.
Facts of the case:
The Trust framed a Scheme under Section 36 of the Punjab Town Improvement Act for providing access to Guru Nanak Stadium from Madan Mohan Malviya Road. The Scheme was published in official and local newspapers, and notice was sent to the Municipal Committee and Medical Officer. The appellant purchased a vacant site after publication of the Scheme but before mutation. The Government approved the Scheme under Section 40, and acquisition proceedings were initiated under the Schedule read with Section 59. The appellant was not personally served a notice under Section 38.
Findings of Court:
It was held that the public authorities were not required to track successive transfers or mutations in the Sub-Registrars office. The publication under Section 36 and communication to the Municipality fulfilled the requirements of Sections 38 and 42(2). The failure to serve the appellant did not vitiate the proceedings. The Scheme was not mala fide, as the Municipal body had to withdraw its earlier proposal. The courts below correctly exercised discretion by refusing an injunction, and the suit under Section 9 of the Code of Civil Procedure was held non-maintainable. The appellant was directed to be accommodated in an alternative site of 250 sq. yds at the prevailing reserved price.
Issues:
Whether the Trust was required to serve a personal notice on the appellant who purchased the land after the Scheme was published; whether the failure to do so vitiates the acquisition; whether the acquisition was mala fide; whether the courts below correctly refused an injunction; and whether the suit under Section 9 of the Code of Civil Procedure was maintainable.
Ratio Decidendi:
The Scheme framed under Section 36 and approved under Section 40, with publication under Section 42(2), rendered the acquisition conclusive. Public authorities are not bound to make continuous enquiries in the Sub-Registrars office, and the directory procedure does not vitiate the acquisition in the absence of proven prejudice. Public interest outweighs personal occupation, and alternative accommodation is mandated.
Result:
The appeal is dismissed with the above observations, and no costs are awarded.
Notice - The judgment referred to this case to note that its ratio is unexceptional but must be applied based on the facts of each case regarding service of notice for acquisition.
Notice - The judgment held that this case did not correctly lay down the law regarding the necessity of personal notice in acquisition proceedings.
ORDER
This appeal by special leave arises from the judgment and order of the learned single Judge of the Punjab & Haryana High Court made in RSA No. 2071/92 on August 2, 1993. The admitted facts are that the respondent-Trust had framed a Scheme for providing passage to Guru Nanak Stadium from the main road, namely, Madan Mohan Malviya Road under Section 36 of the Punjab Town Improvement Act, 1922 (for short, the "Act"). The Scheme in that behalf was framed and notices were issued of the factum of framing of the Scheme; objections were invited and the Scheme was published under Section 78 in the weekly newspaper s for three consecutive weeks and also in the State Official Gazette. It was also published in the newspapers in the locality within the specified period. The notice of the Scheme was sent to the President of the Municipal Committee and to the Medical Officer under subsection 2(b) of Section 36 of the Act. No objections in that behalf came to be made. Thereafter, the Government had approved the Scheme under Section 40 of the Act. By operation of Section 42(2) of the Act, the approval of the Scheme having been published under Section 42(1), it became conclusive evidence that the Scheme had been duly framed and sanctioned. Thereafter, the proceedings under Schedule to the Act read with Section 59 were taken up for acquisition of the land proposed to be acquired under the Scheme. Section 38 of the Act envisages compliance of the notice of the publication in that behalf. It reads as under :
"38. Notice of proposed acquisition of kind :- (1) During the thirty days next following the first day on which any notice is published under section 36 in respect of any Scheme under this Act the trust shall serve a notice on:-
(i) 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.
(ii) the occupier (who need not be named) of such premises as the trust proposes to acquire in executing the Scheme.
(2) Such notice shall :-
(a) state that the trust proposes to acquire such property for the purposes of carrying out a Scheme under this Act, and
(b) require such person, if he objects to such acquisition, to state his reasons in writing within a period of sixty days from the service of the notice.
(3) Every such notice shall be signed by, or by the order of the Chairman."
2. There is no dispute and it cannot be disputed that service of the notice on every person whom the Trust had reason to believe, after due enquiry, to be the owner of the immovable property which the Trust proposes to acquire in execution of the Scheme, or the occupier of such premises, is necessary. It would, therefore, be necessary that the Trust must have reason to believe, after due enquiry, that the person to be affected is the owner of the immovable property proposed to be acquired. In this case, the admitted position is that the disputed property is a vacant site. The appellant had purchased the property on January 24, 1985. The Scheme was approved by the Government on March 19, 1985. It would be obvious that the proposal under Section 36 was widely published in the Gazette, weekly and daily newspapers and notice thereof was also given to the Municipality before the appellants purchased the property. It is not in dispute that after the purchase made by the appellant, his name was not mutated in the records of the Municipality before the approval was granted by the State Government. The question, therefore, is: whether the failure to serve the notice on the appellant vitiates the approved Scheme ? In our view, it does not.
3. It is seen that the Municipality was sent notice of the proposed acquisition as required under Section 36 and also under Section 38 of the Act. When such presumption was made, it would be obvious that the person in possession would be aware of the proceedings proposed for the execution of the Scheme and also acquisition thereof. It is true, as contended by Shri Sehgal, learned senior counsel for the appellants, that registration of a document in the office of the Sub-Registrar is a notice as envisaged under the Registration Act. But the question is: whether the public authorities are expected to go on making enquiries in the Sub-Registrar s office as to who would be the owner of the property? Reasonable belief, after due enquiry, contemplated under Section 38(1) (i) would envisage that the persons who are reputed to be known as owners of the immovable property which was proposed to be acquired after the Scheme was approved by the Government, are the actual owners of the property. It is-now settled law that public functions are to be discharged through its officers and if there is dereliction one their part in the performance thereof and the public inconvenience is enormous, the Court always considers the procedure to be directory. It has always considered, by catena of decisions of this Court, such a procedure to be directory. If it were a case where a reputed owner whose name has already been entered in the Municipal records and has paid the municipal taxes over a period to the municipality or the Gram Panchayat, as the case may be, necessarily there would be scope for the authorities to reasonably believe, after due enquiry, that he would be the owner. If they derelict in making such enquiry or serving the notice, necessarily it may be held that its failure to get the notice served on the owner, who was believed to be the owner of the property, for the proposed acquisition, vitiates the acquisition made under the Schedule read with Section 59 of the Act. But if in a short interregnum there were successive sales and transfer of the land, the public authorities are not expected to go on making enquiries in the Sub-Registrar s office as to who would be the owner of the immovable property proposed to be acquired. The principle that registration is constructive notice has no application to such a situation.
4. The ratio of the full Bench of the High Court of Punjab & Haryana in Jodh Singh v. Jullundhur Improvement Trust1, is unexceptionable, but it has to be considered in the backdrop of the facts in each case. The Division Bench of the High Court in Pt. Ram Parkash & Anr. v. Smt. Kahta Surl2, has not laid the law correctly. We, therefore, hold that the failure to serve personal notice on the appellants does not vitiate the proceedings for acquisition initiated pursuant to the approved Scheme.
5. It is then contended that the acquisition was mala fide since the Municipality itself had, on earlier occasion, proposed for acquisition and had dropped the same. We find no substance in the contention. There are two statutory authorities functioning, one under the Act and the other, the Municipality. When the statutory authority has initiated the action, necessarily the Municipality has to drop the proceedings. Therefore, it cannot be said that the acquisition was mala fide. That apart, there is no finding recorded by the Courts below in that behalf. The High Court also has put out the case on the principle that unless in the circumstances the respondent proves prejudice in his case, discretionary relief for injunction cannot be granted. All the three courts refused to grant injunction to the appellant restraining the authorities from enforcing the Scheme duly framed. The injunction is a matter of discretion. When the authorities have been implementing the Scheme for the benefit of the public of the town, the courts below have rightly refused to exercise discretion to grant injunction and have not committed any manifest error of law for correction by this Court. Moreover, the maintainability of suit under Section 9, Code of Civil Procedure, 1908 is doubtful. It is not necessary to examine the case as it is settled law that such suit is not maintainable.
6. It is next contended that the appellant had purchased the property for his own occupation to construct houses and alternatively gate could be opened from the western side - internal road, without causing any hardship to the appellants. We find no force in the contention: The Scheme proposed to have direct access from the main road, namely, Madan Mohan Malviya Road. The access from the road on the western side of the stadium would create traffic hazards and, therefore, the Scheme was rightly framed for providing entry into the main gate. We have seen the plan. The Scheme has taken the property of minimal dimension rather than the large area in the locality. Under these circumstances, the Scheme was properly framed by the Government for providing access to the Guru Nanak Stadium.
7. It is then contended by Shri Sehgal that the appellant had purchased the property for residential purpose and he is deprived of his right for his residence in the locality. In view of the fact that competing public interest would outweigh the personal interest of the appellant, we think that he could be suitably accommodated in any available housing Schemes taken up by the respondent-Trust. The respondent-Trust, therefore, it directed to provide any suitable site of an extent of 250 sq. yds as per the prevailing reserved price.
8. The appeal is accordingly dismissed with the above observations. No costs.
Appeal dismissed accordingly.
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