Punjab-Haryana High Court
Brij Lal vs Punjab State Through The Secy. To ... on 27 September, 2023
Neutral Citation No:=2023:PHHC:127254-DB
CWP-7090-1998 -1- 2023:PHHC:127254-DB
549/1 IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH.
CWP-7090-1998
Reserved on: 19.09.2023
Pronounced on: 27.09.2023
BRIJ LAL AND OTHERS ......Petitioners
Versus
THE STATE OF PUNJAB AND ORS. ....Respondents
CORAM: HON'BLE MR. JUSTICE SURESHWAR THAKUR
HON'BLE MR. JUSTICE KULDEEP TIWARI
Argued by: Mr. Amit Jain, Senior Advocate with
Mr. Chetan Salathia, Advocate
for the petitioners.
Mr. Maninder Singh, DAG, Punjab.
Mr. Chetan Mittal, Senior Advocate with
Mr. Kunal Mulwani, Advocate
for the respondent-Improvement Trust.
****
SURESHWAR THAKUR, J.
1. Through the instant petition, the petitioner(s) in the writ
petition (supra) claim the hereinafter extracted reliefs.
(i) The award dated 09.02.1998 under the relevant
statute be quashed and set aside, thus on the ground that it
is made beyond the statutorily prescribed period of two
year, since the issuance of the statutory declaration, under
Section 42(1) of the Punjab Town Improvement Act, 1922
(hereinafter for short called as the 'Act of 1922').
(ii) A direction/mandamus be made upon the
respondents restraining them from ousting the petitioner(s)
from the houses which are in their occupation/possession
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and to allot them houses under the relevant re-housing
scheme, thus for ensuring their rehabilitation.
Factual Background
2. That a notification under Section 36 of the 'Act of 1922'
became initially published on 10.02.1995 and whereafter it was re-
published on 17.02.1995, and thereafter it was published for the third
time on 24.02.1995.
3. Respondent No. 1 through exercising powers conferred
under Section 41(1) of the 'Act of 1922' sanctioned the development
scheme of area No. 1, Part 1, Pocket 'C', Pathankot. The said scheme
was framed by Improvement Trust under Section 24 read with Section
28(2) of the 'Act of 1922'. The notification under Section 42(1) was
issued on 16.01.1996.
4. After the issuance of notification(s) (supra), notices were
issued under Section 38 of the 'Act of 1922', thereby inviting
objections, if any. The petitioners raised objections and submitted their
replies towards the said notices.
5. It appears that the said objections became rejected and
ultimately an award became passed on 09.02.1998, assessing thereins
compensation amount(s), in respect of the construction(s) existing upon
the acquired lands.
6. Further, notices were served upon the petitioners to present
their objections with respect to the compensation and the petitioners
filed their replies to the same.
Contentions of the learned counsel for the petitioner(s).
7. (i) The learned counsel for the petitioner(s) contend that
the notification under Section 36 of the 'Act of 1922' was not published
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in the newspapers or in the locality. Therefore, the entire proceedings
are argued to stand vitiated.
(ii) The petitioner(s) claim that there is no necessity for
making acquisition(s) of the lands and if the said acquisition(s) are
made, thereupon they be provided alternative houses. In raising the
above plea the petitioners relied on Sections 26 and 27 of the 'Act of
1922', provisions whereof are extracted hereinafter.
26. Rehousing scheme. - Whenever the trust deems it
necessary that accommodation should be provided for
persons who are displaced by the execution of any scheme
under this Act, or are likely to be displaced by the
execution of any scheme, which it is intended to submit to
the State Government for sanction under this Act it may
frame a rehousing scheme for the construction,
maintenance and management of such and so many
dwellings and shops as ought in the opinion of the trust, to
be provided for such persons.
27. Rehousing of displaced resident house-owners. - Any
resident houseowner who is likely to be displaced by the
execution of any scheme under this Act, may apply to the
trust to be re-housed and no such scheme shall be put into
execution until a re-housing scheme as provided for in
section 26 for the re- housing of such resident house-
owners as may apply under this section has been
completed.
Explanation. - The demolition of a portion of a dwelling
house which renders the remaining portion uninhabitable
shall be deemed to be a displacement of the person or
persons residing in the said dwelling house.
(iii) Moreover, it is also averred in the writ petition, that
the respondents have proceeded to practice invidious discrimination,
inasmuch as, the respondents releasing the acquired lands vis-a-vis
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other similarly situated estate holders, whereas, the respondents yet
proceeding to subject the petition lands to acquisition, through theirs'
making the impugned notification(s), thus succeeded by the impugned
award.
(iv) The learned counsel for the petitioners further
contend that, since the award (supra) was made after more than two
years elapsing, since the issuance of notification under Section 42 (1) of
the 'Act of 1922' on 16.01.1996, which corresponds to Section 6 of the
Land Acquisition Act, 1894 (hereinafter for short called as the 'Act of
1894'), inasmuch as, the apposite award being pronounced on
09.02.1998, thereby breach is caused to the mandate enclosed in
Section 11-A of the 'Act of 1894', provisions whereof are extracted
hereinafter, and resultantly the impugned award is vitiated, and, the
same be quashed and set aside. In support of the above argument he
relies upon a judgment passed by this Court in case titled as 'Suresh
Chand and Others Vs. State of Haryana and Another, reported as 2004
(1) PLR 40 : 2003(2) PLJ 306 and upon a judgment rendered by the
Hon'ble Apex Court, reported in AIR 1992 (SC) 2214.
(Provisions of Section 42(1) of the 'Act of 1922')
42. Notification of sanction of scheme. - (1) The State
Government shall notify the sanction of every scheme
under this Act, and the trust shall forthwith proceed to
execute such scheme, provided that it is not a deferred
street scheme, development scheme, or expansion scheme
and provided further that the requirements of section 27
have been fulfilled. (2) A notification under sub-section (1)
in respect of any scheme shall be conclusive evidence that
the scheme has been duly framed and sanctioned.
[Provided that no notification in respect of sanction of a
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scheme shall be issued after the expiry of the three years
from the date of first publication of notice relating to that
scheme under section 36,]1
(Provisions of Section 11-A of the 'Act of 1894')
[11A. Period within which an award shall be made. - The
Collector shall make an award under section 11 within a
period of two years from the date of the publication of the
declaration and if no award is made within that period,
the entire proceeding for the acquisition of the land shall
lapse:
Provided that in a case where the said declaration has
been published before the commencement of the Land
Acquisition (Amendment) Act, 1984 (68 of 1984), the
award shall be made within a period of two years from
such commencement.
Explanation - In computing the period of two years
referred to in this section, the period during which any
action or proceeding to be taken in pursuance of the said
declaration is stayed by an order of a Court shall be
excluded.]
(v) Further, he contends that even if assumingly the
launched acquisition proceedings were lawful, yet the mandatory
provisions, as cast in Section 26 and in Section 27 of the 'Act of 1922'
rather becoming breached, inasmuch as, despite the statutory provision
(supra) making expostulation qua re-housing of the petitioner(s), yet the
benefit of the said statutory provision, rather remaining un-assigned, to
the present petitioner(s).
(vi) In support of the above contention, he submits that a
Division Bench of this Court, in case titled as 'M/s Piara Singh Uttam
Singh and Others Versus State of Punjab and others', reported as 1974-
PLJ-260, has declared therein, that if a case is covered by Section 26 of
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the Act, thereby a resident house-owner, is evidently displaced and if he
has applied to the Improvement Trust to become re-housed, and, in case
his request remains un-acceded to, thereby, the scheme framed by the
Improvement Trust rather cannot be put into execution, thus until a re-
housing scheme for the rehabilitation of such displaced person rather is
framed.
(vii) Moreover, he contends that the houses of the estate
holders existed on the petition lands, but prior to the launching of
acquisition proceedings, thereby, the same be exempted from
acquisition.
For the reasons to be assigned hereinafter the above raised
contentions in the writ petition are bereft of vigor and thereby they
are rejected.
8. The ground in the instant petition relating to a purported
breach being made to the mandate of the verdicts (supra), is grooved in
the factum, that despite the said verdicts (supra) casting, an statutory
injunction, upon, the acquiring authority to within two years of the
making of the relevant declaration, thus make the award, but with the
said award remaining un-rendered, thus within the above period of
time, thereby the award is vitiated, rather is a ground which warrants
rejection.
9. Though the above argument is supported by a judgment
made by the Hon'ble Apex Court in AIR 1992 (SC) 2214, whereins, it
has been expostulated, that the provisions of the 'Act of 1894' as
amended upto date are applicable to the proceedings drawn under the
'Act of 1922'. Therefore, the necessity for the drawing of an award by
the Collector concerned, thus within two years from the date of
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issuance of a declaration, made under Section 42(1) of the 'Act of
1922', as, corresponds to Section 6 of the 'Act of 1894', rather was
required to be complied, thus for validating the award.
10. However, even if assumingly the award is purportedly
made beyond a period of two years, since the issuance of the relevant
declaration, yet the making of the award, thus with more than a period
two years elapsing since the making of the relevant declaration, rather
does not vitiate the award.
11. The reason becomes comprised in the factum that, since in
the reply, on affidavit, furnished to the writ petition, it is mentioned,
that since the approved scheme, was prepared in relation to a larger
expanse of land, whereins, became included also the estate of present
petitioner(s). Moreover, since it has been further detailed in reply, on
affidavit, that one of the land owners Basant Ram, son of Sardha Ram
proceeded to institute CWP No. 11870-1998, before this Court, and
also filed a civil suit, with regard to exemption of the relevant portion
of land, and, whereins an exparte injunction was issued vis-a-vis the
said Basant Ram rather not being dis-possessed, from the suit lands,
except in accordance with law.
12. In addition, since through an order made on 31.10.1996,
the aforesaid injunction was made absolute. Consequently, it is
contended that since subsequently the said Basant Ram filed another
suit, on 04.11.1996, with regard to his acquired lands, and on a contest
being made by the Improvement Trust, the learned trial Court refused to
grant an injunction. Resultantly the relevant parcels of the lands of the
said Basant Ram, became subjected to lawful acquisition(s).
13. Consequently, it is contended that since for the above
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period of time, the disputed lands remained under litigation, thereby,
since the respondents became restrained from assuming possession over
the acquired lands. Resultantly, when the said period, thus spent in
litigation, is required to be excluded, and/or thereby, the respondent
concerned rather became tenably precluded, to within a period of two
years, since the making of the relevant declaration, thus make an award.
14. The above made argument by the learned counsel for the
respondent is a validly made argument. The reason being that since
within a period of two years, as mandated in the relevant statute, the
disputed lands remained under litigation, thereby, when the said spent
period in litigation, is thus, required to be excluded or condoned, from
the period of two years, as mandated in the relevant statute, rather for
making an award, since the issuance of the apposite declaration.
15. Consequently the non makings of an award within
statutorily mandated period of two years, since the issuance of the
apposite declaration, thus is condonable and/or is not required to be
construed, as the relevant computing factor, nor thereby the award can
be termed to be vitiated nor the award can be quashed and set aside.
16. Further, the argument with regard to non publication of the
notification in daily newspapers and in the locality, is merit-less, as its
is stated in the reply, on affidavit, to the petition, that the notification(s)
(supra) became duly published in two newspapers 'Indian Express' and
in 'Jansata' respectively on 17.01.1995, 24.01.1995 and on 31.01.1995,
thereby, thus the relevant mandatory statutory provisions of the 'Act of
1922', thus become not breached.
17. The learned counsel for the petitioners also argued that
there was necessity in terms of Section 27 of the 'Act of 1922', to make
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provisions for re-housing of the present petitioners, as the assigning of
the benefit of the statutory provision (supra), is argued to be mandatory,
thus in terms of Section 42(1) of the 'Act of 1922'. However, the
learned counsel for the petitioners cannot well espouse even the above
contention.
18. The reason becomes grooved in the factum, that in the
reply, on affidavit, it has been mentioned that no request or application
was submitted by the petitioners rather for the formulation of a re-
housing scheme. Therefore, when a request for the said purpose was
required to be made before the authorities concerned, whereas, the said
request not becoming made, thereby, the petitioners are deemed to
waive or abandon the said claim. Resultantly they are estopped to
argue, that there was any violation of Section 27 of the 'Act of 1922.
19. The argument (supra) with regard to exemption, from
acquisition vis-a-vis houses existing on the acquired lands thus prior to
acquisition is also amenable for rejection. The reason becomes
comprised in the factum, that from a reading of Annexure R1/1 as
appended with the paper book, it is revealed, that the Trust, shall
observe the hereinafter extracted conditions rather for recommending
exemptions of properties.
(i) No vacant plot shall be exempted.
(ii) Exemption of built up properties shall be allowed on
conditions given below:
a) Provided the building was constructed before
the preliminary notification of the scheme.
b) Subject to its fitting in the overall layout of the
scheme, and;
c) The standard of construction should be 'A'
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Class.
20. Consequently, since the exemption(s) were accordable only
to class 'A' construction(s), whereas, on a perusal of the reply, on
affidavit, it becomes revealed, that the structures/construction(s)
belonging to the petitioners, are merely D-Class construction(s), and ,
when they also fall, within the alignment of the road, thus sought to be
constructed, rather for an efficacious implementation of the scheme.
21. Therefore, also the relevant declining(s), vis-a-vis, the
construction(s) existing on the petition lands rather are well founded,
upon, the relevant instruction(s). Thus, the petitioner(s) also cannot
seek exemption(s) on the above plank.
22. However, if yet in terms of the reply dated 28.05.2011,
furnished to the writ petition by the respondent, there is yet lawful
availability to the petitioner(s) to secure re-housing, thereupon,
respondents may proceed to lawfully consider the said claim.
Final order of this Court.
23. In aftermath, this Court finds no merit in the writ petition,
the same being completely frivolous, thus is required to be dismissed
with costs. Therefore, the same is dismissed with costs of Rs. 50,000/-
upon each of the petitioners to be forthwith deposited by them with the
Treasurer of the "Punjab and Haryana High Court Employees
Welfare Association".
24. The impugned notification(s) and the consequent thereto
award are maintained and affirmed.
25. Since the main case itself has been decided, thus, all the
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pending application(s), if any, also stand(s) disposed of.
(SURESHWAR THAKUR)
JUDGE
(KULDEEP TIWARI)
27.09.2023 JUDGE
kavneet singh
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
Neutral Citation No:=2023:PHHC:127254-DB
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