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2014 DIGILAW 910 (PNJ)

Kuldip Singh v. State of Punjab

2014-05-26

LISA GILL, SURYA KANT

body2014
Surya Kant, J. 1. The question that arises for consideration in this case is whether respondent No. 3 - Improvement Trust, Jalandhar has followed the mandatory procedure as contemplated in the Punjab Town Improvement Act, 1922 (hereinafter referred to as the 1922 Act') in the matter of acquisition of petitioners' land situated within the revenue estate of village Lamba Pind, Tehsil and District Jalandhar? Respondent No. 3-Improvement Trust, Jalandhar (hereinafter referred to as the 'Trust') formulated a Development Scheme of 170 Acre' known as 'Surya enclave, G.T. Road Bye Pass near Lamba Pind, Jalandhar' and issued notification under Section 36 of the 1922 Act. The Trust thereafter resolved to acquire the land for development of the abovestated scheme. 2. Section 38 of the 1992 Act contemplates as follows:- "38. Notice of proposed acquisition of land.- (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." 3. The case of the petitioners is that no notice has been served upon them as mandated by Section 38(1)(i) of the 1922 Act, which is equivalent to Section 9 of the Land Acquisition Act, 1894 and as a result thereto they have been deprived of their valuable right to submit objections. 4. On the other hand, the case of the Trust is that the officials of the Trust did come to the factory premises of the petitioners to effect service upon them but they were not found present and the report in this regard was sent by the officials. 5. 4. On the other hand, the case of the Trust is that the officials of the Trust did come to the factory premises of the petitioners to effect service upon them but they were not found present and the report in this regard was sent by the officials. 5. This Court after having heard learned counsel for both the parties and upon noticing the rival submissions, summoned the original records and on perusal thereof, following order was passed on 12.11.2008:- "Original record has been produced before us showing that the notices issued under Section 38 to petitioner Nos. 1 and 2 on 3.9.2004 could not be served as they were not available. However, there is neither any endorsement by the process server/patwari of the Trust nor any individual report in respect of the petitioners. Copies of these notices have been produced before us, which fortify the aforementioned observations. The original file has been produced showing that a number of persons (more than 400) could not be served and there was general order issued by the competent authority of the Trust to serve the un-served owner/occupier by affixation. There is a report dated 28.9.2004 available on the file showing that according to the directions issued by the competent authority, service by affixation has been effected which is duly signed by two witnesses. However, there is nothing on the record to show that individual service by affixation on the petitioners has been effected. Report dated 28.9.2004 is a general report without specifying the individual names. On the basis of the aforementioned facts, circumstances and the report, Mr. Setia, learned Senior counsel for the respondent Nos. 2 and 3 has submitted that inference can be drawn that the petitioners were served. However, taking into the consideration the interpretation of Section 38 of the Punjab Town Improvement Act, 1922 by a Full Bench Judgment of this Court in the case of Prof. Jodh Singh v. Jullundur Improvement Trust, 1984 R.R.R. 36 : 1984 PLJ 413 , it cannot be matter of inference on the basis of surrounding circumstances and the respondents are required to show that notices under Section 38 of the Act were served personally on the petitioner and the service has been effected showing compliance of the requirement of Section 79 of the Act. ... .... .... ...." 6. ... .... .... ...." 6. We have heard learned counsel for the parties and gone through the relevant documents. 7. Relying upon the Full Bench decision in Jodh Singh v. Jullundur Improvement Trust, 1984 R.R.R. 36 : 1985 (2) PLR 308, it is urged by learned counsel for Improvement Trust that since 'a public notice' under Section 38(1)(i) was got published in the newspapers, that was sufficient compliance insofar as the acquisition of petitioners' land is concerned. He also explains that individual notices were sent to the land owners/occupiers and those, like the petitioners, were not found present the were affixed at a public place in the village. 8. We are, however, not convinced with the contention raised by either of the parties. Admittedly, the petitioners are running an industrial unit at the proposed site of acquisition. Even if the petitioners were not physically present at the place of their residence at one point of time, there is no denial to the fact that the industrial unit was in running condition. The officials/workers would have remained present there. No one has certified that affixation of notices were made at the factory premises. Similarly, if an alternative mode of effecting service was to be resorted to then the Trust officials ought to have served/affixed the notices at the factory premises as it could enable the petitioners to know about the proposed acquisition of the land/property. Thirdly, the petitioners' land was earlier also included in the proposed acquisition for a development scheme for which notices under Section 38 of the 1922 Act were sent and they had filed objections and, however, the notification issued under Section 36 of the 1922 Act was allowed to lapse. This would suggest that the petitioners did not deliberately evade the service of notice. 9. The legislative scheme of the 1922 Act is pari materia to the Land Acquisition Act, 1894. It is an expropriatory legislation and the only valuable right given to a land owner/occupier is to submit his/her objections under Section 38 of the 1922 Act. 10. The respondent-Trust is a public authority. It has an obligatory duty to act strictly in accordance with law contemplated under the 1922 Act. The Trust chose to issue individual notices to the land owners/occupiers who were likely to be affected by its scheme. The petitioners are amongst those whose land was proposed to be acquired. 10. The respondent-Trust is a public authority. It has an obligatory duty to act strictly in accordance with law contemplated under the 1922 Act. The Trust chose to issue individual notices to the land owners/occupiers who were likely to be affected by its scheme. The petitioners are amongst those whose land was proposed to be acquired. The Trust did not give any opportunity of hearing to the affected land owners through individual notices. It is too far to run away and take an alternative plea that the notices issued to general public is a 'sufficient' compliance of Section 38(1)(i) of the 1922 Act. The petitioners are entitled to the same treatment, which the Trust resolved to extend to affected land owners. The procedural deviation has resulted into violation of principles of natural and fair justice. Otherwise, the opportunity of hearing which the statute mandates, would not thus stand to the test of equality envisaged in Article 14 of the Constitution of India. The procedure adopted by the Trust in the effecting service upon the petitioners is not consistent with the legislative intent provided under Section 38(1)(i) of the 1922 Act. 11. For the reasons aforementioned, we allow this writ petition and quash the impugned notification issued under Section 42 of the Act insofar it pertains to the petitioners' land. 12. However, this order shall have no bearing on the scheme notified under Section 36 of the 1922 Act or on the notices issued under Section 38 of the 1922 Act. The only effect would be that the petitioners will be deemed to have been served with notices under Section 38 of the 1922 Act and they may submit objections within a period of two weeks from the date of receipt of certified copy of the order. The petitioners shall be at liberty to take up all other contentions in their objections, which shall be considered by the respondent-Trust in accordance with law.