PARVEEN KUMAR ETC Vs. STATE OF HARYANA

JUDGEMENT

(1.) THIS judgment disposes of Civil Writ Petitions No. 2153, 1375, 1821 and 1791 of 1986 since common question of law and fact is Involved therein,

(2.) I have all added to the facts from the pleadings in C. W. P. No. 2153 of 1986 for appreciation of the question of law arising for determination :3. Town Improvement Trust, Hansi (for brevity, the Trust) framed a Development Scheme under Section 24 read with Section 28(2) of the Punjab Town Improvement Act, 1922 (for short, the Act) in respect of the disputed land. Notification dated April 11, 1972 under Section 36 the Act was published in the Haryana Government Gazette dated May 30, 1972. It was dropped for some technical defects therein. A fresh notification under. Section 36 of the Act was published in the Haryana Government Gazette dated December 24, 1974. The petitioners filed against the proposed acquisition. These were heard and disposed of after affording personal opportunity of hearing to the petitioners The scheme was submitted to the State Government for approval The same was sanctioned and a notification under sub-section (1) of Section 42 of the Act was published in the Haryana Government Gazette dated October 19, 1976. Notices under Section 9 of the Land Acquisition Act were issued on December 7,1976, but no action was taken pursuant thereto. The scheme was not implemented within the prescribed period of five years. The State Government, in exercise of the powers conferred by the proviso to Section 44 A of the Act extended the period for execution of the scheme from September 27, 1981 to September 26, 1984 vide notification dated July 7, 1981. By another notification dated August 1, 1983, the period for execution of the scheme was extended from September 27, 1983 to September 26, 1986 Challenge to notifications extending the period for execution of the scheme has been made on the ground that extensions were granted arbitrarily without application of mind; no reasons were given for extending the period for execution of the scheme. No opportunity of hearing was granted to the petitioners before granting extension The validity of the award rendered by the Land Acquisition Collector was also challenged. 4. Separate written statements have been filed on behalf of the respondents 5. Respondent No. 1 in the written statement stated that the Land Acquisition Collector rendered the award dated March 6, 1986 fixing compensation for the acquired land at the rate of Rs. 75/per square yard. Additional compensation had also been granted for the super structure. The landowner-claimants dissatisfied with the quantum of compensation awarded by the Land Acquisition Collector filed references under Section 18 of the Land Acquisition Act for enhancement of compensation to the Tribunal. The actual physical possession of the land acquired was taken by respondent No. 2 on March 16, 1986. The scheme could be implemented only after taking over possession of the land acquired for the development scheme The petitioners intentionally delayed the proceedings on one protext or the other. Extensions for execution of the scheme under the proviso to Section 44- A of the Act were rightly granted and the action of the State Government is legal and valid. 6. Identical pleas were taken by respondent No. 2 in the written statement 7. The constitution validity of Section 44 A of the Act and the notifications issued from time to time under the proviso to the said section granting extensions in time for the execution of the scheme came up for consideration in this Court in L.P.A. 394 of 1983 (Municipal Committee, Bhiwani v. Munshi Ram etc. (1989-2) 96 P.L.R. 202) after the case was remanded by the apex Court in Civil Appeals No. 10590-99 of 3983 with the following directions :" We have heard the learned counsel for the parties in all these appeals. We do not agree with the decisions of the High Court that the schemes involved in these cases were liable to be set aside on the basis of the reasons given by the Full Bench of the High Court of Punjab and Haryana in Radhey Sham Gupta and Ors. v. State of Haryana and Ors.-A.I.R. 1982 Punjab and Haryana 519. We, therefore, set aside the judgments against which these appeals, are filed and remand the cases to the High Court to consider only the question relating to the constitutional validity of Section 44-A of the Punjab Town Improvement Act, 1922 as in force in Haryana and the Notifications issued from time to time under the proviso to the said section granting extension of the period for the completion of the schemes in question No other question shall be raised before the High Court by the writ petitioners. It is open to the writ petitioners to file, if they are so advised, additional pleadings confined to the above question. It is also open to the respondents to file additional counter affidavits in the High Court. The High Court shall dispose of the writ petitions within six months. Status quo as on today regarding possession shall be maintained until the High Court disposes of the writ petitions." 8. This Court in Municipal Committee, Bhiwani v. Munshi Ram, etc, A. I. R. 1982 Punj. and Hry. 519, upheld the vires of Section 44-A of the Act and the various notifications issued under the proviso to the said section and held thus:" After the scheme has been duly sanctioned and notified, it is to be executed within the period prescribed If in event, the Trust could not execute the scheme within the period prescribed the State Government can extend the period for its execution Extension is granted only on satisfaction that it was beyond the control of the Trust that it could not execute the scheme within the period prescribed under Section 44 of the Act or within the extended period. A landowner or the person affected has no right to be afforded an opportunity of hearing before the State Government extends the period within which the scheme has to be executed by the Trust. The matter is purely between the State Government and the Trust. XX XXX XX XX XX XX XX After the scheme has been notified, it assumes finality and before the Government notifies the scheme, it ensures that the mandatory provisions of the statute relating to the framing of the scheme have been duly complied with. A statute has to pass the test of reasonable classification, but legislative or executive actions could be declared bad if these were arbitrary. There is no arbitrariness in the provision under challenge. The State Government can extend the period for execution of the scheme if it is satisfied on material that the Trust could not execute the scheme within the period prescribed for the reasons beyond its control." In Municipal Committee, Bhiwani's case (supra), this Court held that after the notification under. Section 36 of the Act is published, the landowner whose land is sought to be acquired has a right to file objections against the proposed acquisition to the Trust and can also ask for an opportunity of personal hearing. The Trust has to dispose of the objections in accordance with the statutory provisions Thereafter the scheme with all its appendices is submitted to the State Government and if it is approved, a notification under sub-section (1) of Section 42 of the Act is issued. Sub section (2) of Section 42 of the Act imparts a degree of conclusiveness to the notification issued under sub-section (1) of Section 42 of the Act. If the scheme is not executed within the time prescribed, the State Government can extend the period for the execution of the scheme under proviso to Section 44-A of the Act The question regarding grant of exetersion of period for the execution of the scheme is purely between the State Government and the Trust and the landowner has no right to claim an opportunity of hearing by the State Government before exercising the power under the proviso to Section 44 A of the Act. 9. The learned counsel for the petitioners, who was also one of the counsel for the writ petitioners landowners in Municipal Committee, Bhiwani's case (supra), reiterated practically the same submissions and referred to the same rulings at the Bar which were referred to in that case and were duly discussed. We have not thought it fit to refer to those rulings over again. Suffice it to say that this Court has authoritatively ruled that a landowner is not entitled to an opportunity of hearing by the State Government before granting extension for the execution of the scheme under the proviso to Section 44-A of the Act, and we find no ground to differ from the view taken therein. The Trust took, possession of the land in dispute on March 16, 1986 and the writ petition was filed in this Court on April 29, 1986. After the possession of the acquired land has been taken over, by the Trust, it becomes the owner of the land and the same vests in it free of any encumbrances. The petitioners have no subsisting interest in the land except the right to compensation or for enhanced compensation under the Act. The petitioners cannot otherwise be said to be the persons aggrieved by the extensions granted under the proviso to Section 44 A of the Act and for this reason also, they cannot question the action of the State Government extending the period for execution of the scheme. 10. The Act was amended by the State of Haryana by tie Punjab Town Improvement (Haryana Amendment and Validation) Act, 1985 (Haryana Act No. 12 of 1985). Section 44-A of the Principal Act was renumbered and the amended section reads thus : "( 2) Notwithstanding anything contained in sub-section (1), the State Government, in case of scheme which has not been executed within the period specified or extended under sub section (1), if it is satisfied that it was beyond the control of the trust to execute the scheme within the aforesaid period, may, with one year from the date of commencement of the Punjab Town Improvement (Haryana Amendment and Validation) Act 1985, shall extend the period for its execution upto three years. Explanation-For the purpose of this section a scheme shall be deemed to have been executed if the trust had disposed of fifty per cent of the plots or buildings constructed thereon where the scheme is for carving out of plots or for constructs buildings thereon and where the scheme is for development and provision of necessary public facilities after acquiring land." 11. State Government vide Notification dated August 26, 1986 extended the period for the execution of the scheme for a period of two years, i.e. from September 27, 1986 to September 26, 1988 and it reads thus :" No. 14/4/81-3CI: Whereas the State Government having fully considered all the facts and circumstances is satisfied that it was beyond the control of the dissolved Improvement Trust, Hansi to execute the development scheme No. 8 'Lajpat Rai Market' sanctioned vide Haryana Government Notification No. 9966-3C1- 76/3306, dated 27th September, 1976 within the prescribed period of five years and last extended upto 26th September, 1986 vide Haryana Government Notification No. 14/4/81-3CI, dated 1st August, 1983. Now, therefore, in exercise of the powers conferred by proviso to Section 44-A of the Punjab Town Improvement Act. 1922 and all other powers enabling him in this behalf, the Governor of Haryana hereby extends the period for execution of the said scheme for a period of two years from 27th September, 1986 to 26th September, 1988." 12. Similarly, vide Notification dated July 7, 1988, the period for execution of the scheme was further extended for two years i e. from September 27, 1988 to September 26, 1990 and the Notification reads thus :" No. 14/4/81-3CI :-Whereas the State Government on having fully considered all the facts and circumstances is satisfied that it is beyond the control of the dissolved Improvement Trust, Hansi to execute the Development Scheme No. (sic) 'Lajpat Rai Market' sanctioned vide Haryana Government notification No. 9966-3CI- 76/3306, dated 27th September. I976 within the prescribed period of five years and last extended upto 26th September, 1988 vide Haryana Government notification No, 14/4/81-3C1, dated 26-8-1986. Now, therefore, in exercise of the powers conferred by proviso to Section 44-A(l) of the Punjab Town Improvement Act, 1972 and all other powers enabling him in this behalf, the Governor or Haryana hereby extends the period for execution of the said scheme for a period of two years, from 27th September, 1988 to 26th September, 1990." 13. The State Government, on the basis of the material on record, came to the conclusion that the Trust could not execute the Development Scheme within the prescribed period, or extended period and further extended period for execution of the scheme. The action of the State Government cannot be said to be unjustified. The same is legal and valid 14. The learned counsel for the petitioners highlighted that the scheme sanctioned under sub-section (2) of Section 42 of the Act has to be executed within five years from the date of the notification' issued under sub section (1) of Section 42 ibid, The extension for execution of the scheme granted under the proviso to Section 44-A of the Act or sub section (2) of Section 44 A of the amended Act cannot be granted beyond the period mentioned in sub-section (1) of Section 44-A as amended by Haryana Act No. 12 of 1985. No plea to this effect was raised in the writ petition. In para 15(ii) of the writ petition, it was only stated that the failure of the authorities to implement the scheme within five years itself showed lack of bona fide. A plea which is not raised in the pleadings cannot be allowed to be raised at the time of arguments. In the instant case, the factual foundation for the plea having not been made in the pleadings, it cannot be allowed to be urged as an abstract question of law at the arguments stage. If a proper plea had been raised in the writ petition, the State could have the opportunity to effectively meet it and justify the action factually and legally. The submission is thus rejected. 15. The learned counsel referred to some judgments at the Far in support of his submission that while attacking the validity of the notifications issued by the State Government under the proviso to Section 44-A of the Act extending the period for execution of the scheme, he can also challenge the acquisition, need not be dealt with in this case particularly for the reason that the petitioners have no subsisting interest in the land since before they moved this Court, possession had already been taken over. 16. Thus for the aforesaid reasons, these writ petitions are devoid of any merit. The same are dismissed but without any order as to costs.