WINKY DILAWARI Vs. AMRITSAR IMPROVEMENT TRUST AMRITSAR

JUDGEMENT

(1.) This appeal by special leave arises from the judgment and order of the learned Single Judge of the Punjab and Haryana High court made in RSA No. 2071 of 1992 on 2/8/1993. 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 (4 of 1922 (for short, "the Act"). The Scheme in that behalf was framed and notices were issued of the factum of framing of thescheme; 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 Ss. 2 (b) of Section 36 of the Act. 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 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:

(2.) 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 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 24/1/1985. The Scheme was approved by the government on 19-3-1985. It would be 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 was 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 to serve the notice on the appellant vitiates the approved Scheme In our view, it does not.

(3.) 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 Act. When suchpresumption 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 contended 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, 1908. But the question is whether the public authorities are expected to go on making enquiries in the Sub-Registrar's office as to who would be the owner of the property Reasonable belief, after due enquiry, contemplated under Section 38 (l) (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 Scheme was approved by the government, are the actual owners of the property. It is now settled law that public functions are to be discharged through its officers and if there is dereliction on their part in the performance thereof and the public inconvenience is enormous, the court always considers the procedure to be directory. It has always considered, by a catena of decisions of this court, such a procedure to be directory- If it were a case where a 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 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 interregnum 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 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.