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Maya Singh Vs. State of Punjab and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtPunjab and Haryana High Court
Decided On
Case NumberLetter Patent Appeal No. 784 of 1980
Judge
Reported inAIR1981P& H384
ActsPunjab Town improvement Act, 1922 - Sections 24, 28, 36, 40 and 42; ;Constitution of India - Article 226; Land Acquisition Act, 1894 - Sections 6 and 28; Uttar Pradesh Town Improvement Act, 1919 - Sections 36 and 42
AppellantMaya Singh
RespondentState of Punjab and ors.
Cases ReferredKhadim Hussain v. State of U. P.
Excerpt:
- sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the..........of the land as envisaged under s. 28 of the act. the land is acquired under the provision of the land acquisition act, 1894 as amended by the punjab town improvement act. the various amendments brought about in land acquisition act are contained in the schedule to the improvement act, cl 2 of which reads as under:-- '2(1). the first publication of a notice of any improvement scheme under section 36 of this act shall be substituted for and have the same effect as publication and in the (official gazette) and in the locality of a notification under sub-section (1) of the section 4 of the said act, except where a declaration under section 4 or section 6 of the said act has previously been made and it still in force. (2) subject to the provision of clauses 10 and 11 of this schedule, the.....
Judgment:

S.P. Goyal, J.

1. This judgment will dispose of two appeals--Letter Patent Appeals Nos. 784 and 969 as they involve common question of law and are directed against the common judgment of the learned single Judge.

2. The Amritsar Improvement Trust, Amritsar (hereinafter called the Trust) framed a development scheme under Section 24 read with S. 28 of the Punjab Town improvement Act, 1922(hereinafter referred to as the Act) known as Truck Stand Scheme Which was notified under S. 36 of the Act on May 11, 1974. It was sanctioned by the government under S. 40 of the Act on May 9, 1977 and the sanction was notified under S. 42 of the Act in the Punjab government Gazette dated May 27, 1977. The scheme was challenged under the provision of Art. 226 of the Constitution of India on two grounds, namely that no provision for re-housing the petitioners had been made and that the sanction of the Scheme having been notified under S. 42 of the Act, more than 3 years after the notification under S. 36 no land could be acquired to execute the scheme. Both these grounds were negatived by the learned single Judge vide judgment dated September 30, 1980 and the petition dismissed. Dissatisfied there with the petitioners have come up in these appeals.

3. The development scheme framed under the Act necessarily has to provide for acquisition of the land as envisaged under S. 28 of the Act. The land is acquired under the provision of the Land Acquisition Act, 1894 as amended by the Punjab Town Improvement Act. The various amendments brought about in Land Acquisition Act are contained in the Schedule to the Improvement Act, Cl 2 of which reads as under:--

'2(1). The first publication of a notice of any improvement scheme under Section 36 of this Act shall be substituted for and have the same effect as publication and in the (official Gazette) and in the locality of a notification under sub-section (1) of the Section 4 of the said Act, Except where a declaration under Section 4 or Section 6 of the said Act has previously been made and it still in force.

(2) Subject to the provision of clauses 10 and 11 of this Schedule, the issue of a notice under Sub-section (1) of Section 32 in the case of land acquired under that sub-section and in any other case the publication of a notification under Section 42 shall be substituted for and have the same effect as a declaration by the (state) Government under Section 6 of the said Act, unless a declaration under the last mentioned section has previously been made and is still in force.

From the perusal of the said clause it is clear that publication of notice of any improvement scheme under Section 36 and the publication of notification under the effect of a notification under Sub-section (1) of S. 4 and declaration under S. 6 of the Land Acquisition Act. It is not disputed that the order of the Government dated May 9, 1977 sanctioning the scheme under S. 41 of the Act was with I three years of the notification published under S 36 but the notification published under S. 42 of May 27, 1977 was beyond the said period. The learned singly judge took the view that the order sanctioning the scheme passed by the Government on May, 7, 1977 was equivalent to a declaration under S. 6 of the Land Acquisition Act and reliance for this view was placed on a Supreme Court decision in Khadim Hussain v. State of U. P., AIR 1976 SC 417.

4. The case before the Supreme Court was under the U. P. Act of 1966. Prior to that Act was in force the U. P. Town Improvement Act, 1919 whose Ss. 36 and 42 were pari materia with the same section of the Punjab Act; whereas of 1966 Act Ss. 31 and 32 are equivalent to Ss. 41 and 42 of the Punjab Act. Clause 2 of the schedule in the U. P. Act was in the identical terms as the one in the Schedule of the Punjab Act. The notification under S. 32(1) of the U. P. Act of 1966 was published on May 3, 1969 while under S. 36 of the prior Act on March 13, 1965. It was not brought to the notice of the court as to when the order under S. 31 was passed by the government and the Court presumed that it must have been passed within three years. The order passed under S. 31 was taken to be a declaration under S. 6 of the Land Acquisition Act and the plea of the land owners that the notification under Section 32(1) of the 1966 Act having been published beyond three years no declaration under S. 6 of the Land Acquisition Act could be made on that date was negatived. The present case is therefore, squarely covered by this decision of the Supreme Court. However, Mr. Kuldip Singh, learned counsel for the appellant urged that according to Clause 2 it is not the order sanctioning the scheme which is equated to declaration under S. 6 ad instead it is the notification of the sanction which is so equated. He further argued that the attention of their Lordship of the Supreme Court in Khadim Hussain's case (AIR 1976 Sc. 417)(supra) was not drawn to this aspect and the case was decided on the assumption that the order sanctioning the scheme amounted to a declaration under S. 6 of the Land Acquisition Act. There is some substances in the contention of the learned counsel because according to Clause 2 of the Schedule reproduced above it is the publication of the notification under S. 42 which has the effect of a declaration under S. 6 of the Land acquisition Act and not the order sanctioning the scheme under Section 41 of the Act. But for this reason we are not competent to take a different we are not competent to take a different view of the law as laid down by the Supreme Court. The said clause has, in fact been reproduced in the judgment in paragraph 19. It cannot, therefore, be said that their Lordship of the Supreme Court were not conscious of the provisions of the said clause. In the contrary in spite of its provisions the order sanctioning the scheme under S. 31 of the U. P. Act was taken to be a declaration for the purpose of S. 6 of the Land Acquisition Act. As we are bound to follow the law declared by the Supreme Court, we have no option but to reject the contention of the learned counsel for the appellant.

5. No other point was urged. Consequently these appeals fail and the same are hereby dismissed by without any order as to costs.

S.S. Sandhawalia, C.J.

6. I agree.

7. Appeals dismissed.


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