SMT. WINKY DILAWARI AND ANR.versusAMRITSAR IMPROVEMENT TRUST, AMRITSAR

A                       SMT. WINKY DILAWARI AND ANR.
                                           v.
                 AMRITSAR IMPROVEMENT TRUST, AMRITSAR

                                 SEPTEMBER 3, 1996

B                   [K. RAMASWAMY AND FAIZAN UDDIN, .JJ.]

               Punjab Town Improvement Act, 1922:

           Ss.36, 38-Notice for acquisition of land for proposed passage to
C   stadium-Failure to serve personal notice on appellants-Held, does not
    vitiate the proceedings for acquisition initiated pursuant to the approved
    scl1eme-Wl1en authorities implementing the scheme for the benefit of public
    Cowts below rightly refused to exercise discretion to grant injwzction-Scheme
    was rightly framed for providing entry into the main gate to the
    stadium-Appellant's light of residence in the locality-Held, competing
D   public interest would out-weigh the personal interest of the appellant--How-
    ever he could be suitably accommodated in any available housing scheme
    taken up by respondent-Tmst-Respondent- Trnst directed to provide suitable
    site of an extent of 250 sq. yards as per prevailing reserved price.

               Jodh Singh v. Jullundhur Improvement Trnst, AIR (1984) P&H 398,
E approved.
           I

       / Pt. Ram Parkash & Anr. v. Smt. Kanta Suri, (1985) PLJ 371,
      sf
    di pproved.

      ( CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1526 of
F   1994.

         From the Judgment and Order dated 2.8.93 of the Punjab & Haryana
    High Court in RS.A. No. 2071 of 1992.

               D.V. Sehgal, A.T.M. Sampath and Ms. Monica Gosain for the
G Appellants.
               E.C. Agrawala for the Respondent.

               The following Order of the Court was delivered :

H              This appeal by special leave arises from the judgment and order of
                                            502
       WINKY DILA WARI v. AMRITSAR IMPROVEMENT TRUST                   503

the learned single Judge of the Punjab & Haryana High Court made in A
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
                                                                               B
of the factum of framing of the Scheme; objections were invited and the
Scheme was published under Section 78 in the weekly newspapers 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 sub-section 2(b) of Section 36 of the Act. C
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 D
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 land : (1) During the thirty   E
        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         F
        proposed to acquire in executing the Scheme.

        (ii) the occupier (who need not be named) of such premises as
        that trust proposes to acquire in executing the Scheme.
                                                                              G
        (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 H
    504                   SUPREME COURT REPORTS [1996] SUPP. 5 S.C.R.
                                                                                     . !

A            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."

B       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
C 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
D 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
E to serve the notice on the appellant vitiates the approved Scheme? In our
  view, it does not.

          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
F   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 con~
    tended 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
G   public authorities are expected to go on making enquiries in 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
H   Scheme was approved by the Government, are the actual owners of the
       WINKY DILAWARI v. AMRITSAR IMPROVEMENT'I1WST                    505

property. It is now settled law that public functions are to be discharged A
through its officers and if there is dereliction on their part in the perfor-
mance thereof and the public inconvenience is enormous, the Court always
considers the procedure to be directory. It has always considers the pro-
cedure 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 B
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 C
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 interragnum 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 D
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.

      The ratio of the full Bench of the High Court of Punjab & Haryana
in Jodh Singh v. Jullundhur Improve111e11t Trust, AIR (1984) (P&H) 398 is     E
unexeceptionable, 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. Kanta Swi, (1985) PU 371 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    p
approved Scheme.

       It is then contended that the acquisition was ma/a 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 G
Municipality. When the statutory authority has initiated action, necessarily
the Municipality has to drop the proceedings. Therefore, it cannot be said
that the acquisition was ma la 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 . H
    506                     SUPREME COURT REPORTS (1996] SUPP. 5 S.C.R.,

A   proves prejudice in his case, discretionary relief for injunction cannot be
    granted. All the three courts refusal 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 im-
    plementing the Scheme for the benefit of the public of the town, the courts
    below have rightly refused to exercise discretion to grant injunction and
B   have not committed any manifest error of law for correction by this Court.
    Moreover, the maintainability of suit under Section 9, Code of Civil Pro-
    cedure, 1908 is doubtful. It is not necessary to examine the case as it is
    settled law that such suit is not maintainable.

c           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
D    Malviya Road. The access from the road on the western side of the stadium
     would create traffic hazard~ 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 Schern l was properly framed
     by the Government for providing access to the Guru Nanak Stadium.
E

           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. Jn view of the fact that competing public interest
     would outweigh the personal interest of the appellant, we think that he
F    could be suitably accommodated in any available housing Schemes taken
     up by the respondent-Trust. The respondent-Trust, therefore, is directed
     to provide any suitable site of an extent of 250 sq. yds. as per the prevailing
     reserved price.

G
              The appeal is accordingly dismissed with the above observations. No
     costs.


     G.N.                                                       Appeal dismissed.      I
H