WRIT PETITION 4932 of 1998 on 7 April 1984

JUDGMENT

SABINA, J.

Vide this order, both the above mentioned writ petitions would be disposed of as in both these petitions the samenotifications have been challenged. The facts are being taken fromCWP No. 4932 of 1988.

The case of the petitioners, as stated in the writ petition,in brief, is that shops No. 1 to 17 as well as buildings behind these shops were owned by the Punjab Public Works Department(Buildings and Roads Branch), Sangur. The petitioners were inpossession out of these shops under Respondent No.2. A Noticeunder Section 36 of the Punjab Town Improvement Act 1922(hereinafter referred to as 'the Act) was published in the PunjabiTribune on 7.4.1984 (Annexure P-2) with regard to 0.76 Acres AreaDevelopment Scheme, known as Old Jail, Patiala Gate, Sangrur.Another notice under Section 40 (3) of the Act was published inPunjabi Tribune on 16.3.1987 (Annexure P-3). No hearing wasafforded to the petitioners before publication of notification underSection 42 (1) of the Act on 26.5.1987. Hence, these writ petitionswere filed for quashing the notice dated 7.4.1984 (Annexure P-2) andthe notification dated 26.5.1987(Annexure P-4).

Notice was issued to respondent No.2 on 20.3.2008.Despite service, no body has appeared on behalf of respondentNo.2.

I have heard learned counsel for the petitioners and havegone through the record available on the file carefully.

Learned counsel for the petitioners has argued that thenotices under Sections 36(1) and 40(3) of the Act were issued on7.4.1984 (Annexure P-2) and 16.3.1987 (Annexure P-3)respectively and, thereafter, notification under Section 42 of theAct was issued on 26.5.1987 (Annexure P-4). Since thenotification under Section 42 of the Act had been issued afterexpiry of three years from the date of first publication of notice under Section 36 of the Act, the same was liable to be quashed.

Section 42 of the Act is reproduced herein below:-

(1) The State Government shall notify the sanction ofevery scheme under this Act, and the trust shall forthwithproceed to execute such scheme, provided that it is not adeferred street scheme, development scheme, orexpansion scheme and provided further that therequirements of Section 27 have been fulfilled.

(2) A notification under sub-section (1) in respect of anyscheme shall be conclusive evidence that the schemehas been duly framed and sanctioned.

(Provided that no notification in respect of sanction of ascheme shall be issued after the expiry of the three yearsfrom the date of first publication of notice relating to thatscheme under Section 36)

As per the proviso to Section 42 of the Act, no notification in respect of sanction of a scheme shall be issued after expiry of thethree years from the date of first publication of notice relating to thatscheme under Section 36 of the Act.

Notice under Section 36 of the Act was published in thenewspaper on 7.4.1984 as is evident from Annexure P-2. Thereafter, notification under Section 42 of the Act was issued on 26.5.1987(Annexure P-4). Thus, the notification under Section 42 of the Actwas issued after the expiry of period of three years from the issuanceof notice under Section 36 of the Act. Notification under Section 42

of the Act corresponds to a notification issued under Section 6 of theLand Acquisition Act. Hon'ble the Supreme Court inAshok Kumarand othersv. State of Haryana and another, (2007) 3 SCC 470has held as under:-

“We have noticed hereinbefore that theproviso appended to sub-section (1) of Section 6 is in thenegative term. It is, therefore, mandatory in nature. Anydeclaration made after the expiry of one year from thedate of the publication of the notification under sub-section (1) of Section 4 would be void and of no effect.An enabling provision has been made by reason of theExplanation appended thereto, but the same was doneonly for the purpose of extending the period of limitationand not for any other purpose. The purport and object ofthe provisions of the Act and in particular the provisowhich had been inserted by Act 68 of 1984 and whichcame into force w.e.f. 24.9.1984 must be given its fulleffect. The said provision was inserted for the benefit ofthe owners of land. Such a statutory benefit, thus, cannotbe taken away by a purported construction of an order ofa Court which, in our opinion, is absolutely clear andexplicit.”

Since in the present case, notification under Section 42 ofthe Act has been issued after the expiry of period of three years fromthe date of issuance of notice under Section 36 of the Act, the same is illegal and does not legally vest the property in the ImprovementTrust. Accordingly, both these writ petitions are allowed. Notificationdated 26.5.1987 (Annexure P-4) and notice dated 7.4.1984(Anenxure P-2 are hereby quashed.

May 05 , 2008anita

(SABINA) JUDGE