Amritsar Improvement Trust Etc. v. Baldeva Inder Singh and Ors. Etc.

Hegde, J. In these appeals by certificates, just one question of law arises for decision and that question is whether the scheme prepared by the Amritsar Improvement Trust und.~r ss. 24, 25 and k8 and sanctioned by the government under s. 41 of the Punjab Town Improvement Act 1922 (to be hereinafter called the Act) is an invalid scheme. The High Court of Punjab and Haryana ha& held in two writ petitions that the scheme in question is an U.valid scheme and has consequently set aside that scheme. Ag-pieved by those. decisions, the Amritsar Improvement Trust as well 118' ilie State government of Punjab have come up in appeal.

The Amritsar Improvement Trust at its meeting held on April P!t, 1962 resolved as follows :

"70: Item Fm' consideration. Framing of a development~um­ housing accommodation scheme for the area· bounded b:ir Circular Road, Fatehgarh Churian Road, Gumtala Drain, Bye-uass Road and Ajnala Road.

RESQLUTION

The Trust resolved to frame a development-cum-liousing accommodation scheme for hie area bounded by €ircufar Road, Fatehgarh Churian Road, Gumtala Jmiain, Bye-pass Road and Ajnala Road uis 24 and 25 read with section 28(2) of the Punjab Town Improve-ment Act, 1922. The Area will be developed as a Com-mercial-cum-residential area and an industrial colony will also be provided. Sites will be ear-marked for the construction of houses for services men and also for fabour and harijan colonies. The scheme should now be notified under s. 36 of the Punjab Town Improvement Act, 1922. for inviting objections."

'.llhat resolu1.\on was amended by the Improvement Trust at i~iueting: held 011 May 1, 1962. The amendment reads thus :

"92' Item.

Reference Trust Resolution No. 70 dated 19-4-1962. For consideration. Re-fixation of boundaries of Dev. Scheme for tile area bounded by Circular Road, Fatehgarh Churian Road, Gumtala Drain, Bye.pass Road and: Ajnala Road.

RESOLUTIQN

It is decided to refix· the boundaries of the Develop-ment scheme as-under :

"Circular Road, Fatehgarh Churian Road, Bye-pass Road and Ajnala Road."

Resolution No. 70 dated 19-4-1962 be and is amend-ed' accordin~y;''

Thereafter on May 4, 1962, it issued! the following notice under s. 36 of the Act.

"The Amritsar Improvement Trust, Amritsar.

Notice under section 36 of the Punjab Town Im-provement Act, 1922.

Notice is hereby given that in accordance with Re-solution No. 70 dated 19-4-1962, as amended by Re-solution No. 92 dated 1-5-1962, passed by the Amritsar Improvement Amritsar, the Trust has framed a develop-ment-cum-Housing accommodation scheme for an area measuring approximately 860 acers, bounded by Cir-cular Road, Fatehgarh Churian Road, By-pass Road and Ajnala Road, within the local area of the Amritsar Improvement Trust, under section 24 and 25 read with section 28(2) of the Punjab Town Improvement Act, 1922. The area will be developed as Commercial-cum-residential area and an industrial colony will also be provided. Sites will be ear-marked for the construction of colonies for service-men and also for labourers and Harijans. The boundaries of the scheme are as under :

NORTH.-Starting from the junction of Ajnala Road and Bye-pass Road along but excluding the land under Bye-pass Road, upto its junction with Fatehgarh Churian Road;

EAST.-Thence by Fatehgarh Churian Road but ex-cluding the lan!l under this Road, upto its junction with Circular Road;

SOUTH.-Thence by Circular Road but excluding the land under the Circular Road, upto its junctions with Ajnala Road :

WEST.-Thence by Ajnala Road but excluding the land under the Ajnala Road, upto its junction with Bye-pass Road, the point of start.

These boundaries are more particularly shown on a map of the locality held by die Chainnan of the Improvement . Trust, Shaheed Bhagat Singh Road, Amritsar.

¶2Details of the Scheme and a statement of the land to be acquired and the general map of the locality comprised in the sc~eme may be inspected at the office of the . Tru~ on Shaheed Bliagat Singh Road, Amritsar, during oftice hours, a~y working day.

¶3Any person having any objection to the scheme should forward the same in writing to the undersigned so as to reach him on or before the 7th July. 1962.

Dated, 4th May, 1962.

Sdl-Shashpal Singh, Chairman, Amritsar Improvement Trust, Amritsar. In response to that notice several interested persons submitted their objections. One of the objectors pleaded that the Improve-ment Trust had no competence to include in "a development scheme" areas outside the municipality. The Improvement Trust rejected all the objections and approved the prepared scheme. Thereafter the same was submitted to the· government and the government sanctioned the same.

There is no dispute that the impugned scheme includes both areas inside the Amritsar municipality as well as areas outside that municipality. It is also seen from the resolutions passed by the Improvement Trust as well as the notice issued by it under s. 36 of the Act that the Improvement Trust purported to frame "a development" cum "housing accommodation scheme". It did not purport to frame "an expansion scheme''.

The High Court has come to the- ~onclusion that the Improve-ment Trust had no power ito include in "a development scheme" areas outside the municipal limits for the purpose of development.

From the resolutions passed by the Improvement Trust, in particular the resolution passed by it on May l, 1962, it is seen that thei areas bounded by "Circular Road, Fatehgarh Churian Road, Bye-pass· Road and Ajna!a Road" were included for the purpose of development. It is conceded that the area included within those boundaries partly lies within the municipal limits and partly outside the municipal limits. It is urged on behalf of the writ petitioners that the areas outside the municipal limits can be taken over either under "an expansion scheme" or under "a housing accommodation scheme". They cannot be taken over for "a development scheme". There is force in this contention.

Let us now read the relevant provisions. Section 24 of the Act provides :

"(1) The trust may, for the purpose of development of any locality within the municipal limits contained in its local area, prepare "a development scheme", and

(2) Such trust may, if it is of opinion that it is ex-pedient and for the public advantage to promote and control the development of and to provide for the expan-sion of a municipality in any locality adjacent thereto. within the local ~rca of such trust prepare "an expansion scheme".

ll "A development scheme" or "an expansion

(3) scheme;' may provide for the lay-out of the locality to be developed, the purposes for which particular. portions of such locality are to be utilised, the prescribed street alignment and the building line on each side of the streets proposed in such locality, -the drainage of insanitary localities and such other details as may appear desirable." Section 24(1) deals with preparation of "a development scheme". Section 24(2) deal; with the preparation of "an expan-sion scheme". Section 24(3) pre.scribes what all things could be included in "a development scheme" or "an expansion scheme". Section 25 reads thus :

"If the trust is of opinion that it is expedient and for the public advantage to provide housing accommodation for any class of the inhabitants within its local area such trust may. frame "a housing accommodation scheme" for the purpose aforesaid ...... "

(Proviso omitted).

Section 28( 1) provides that the scheme under Ihe Act may combine one or more Iypes of schem•J or any special featur~< thereof.

It is clear from s. 24(1) that "a development scheme" cannot include areas outside the municipal limits. Therefore if a scheme includes hoth areas outside municiMl limits and inside its limits. such a scheme cannot be prepared under s. 24(1 ). As seen ear-lier. from the resolutions of the Tmnrovement Trust. it is clear that it purported to prepare "a development scheme" cum "housing accommodation scheme'' It did not purport to prepare "~x­ pansion scheme"

The legislature has given specific nallles to the various sche-mes to be prepared by the Improvement Trust. Hence when the Improvement Trust says that it has prepared "a development scheme'', it is not possible to hold that in fact it has prepared "an expansion scheme." The power conferred on the Improvement Trust is not a plenary power. It is a po"Cer that has to be exer-cised in accordance with the conditions laid down in the Act. If the Improvement Trust desired to prepare "an expansion scheme", it should have formed an opinion "that it is expedient and for the public advantage to promote and control the development of wid to provide for the expansion of a municipality in a locality adjacent thereto within the local area of such trust".

From the resolutions passed by the Improvement Trust, it does not appear thaL It nad ro1med any such opinion. Under these circumstances, it is no~ possible to accept toe ~ontcnuun of the appellants that as the resolutions of the Improvement Trust refer to s. 24, we may conclude that the scheme prepared is "an expan-sion scheme". The resolutions of th~ Improvement Trust do not merely refer to s. 24. They also say that scheme prepared is "a development are scheme" cum "housing scheme". If these resolutions

read as a whole, it is clear that the Improvement Trust pur-ported to act under its power under s.' 24(1) and 25 and not under s. 24(2).

a It iw.as llf~ on behalf of the appellants that if the exercise of

p<;>we;r ~an be traced to a valid power, .the fact that the power is purported to have been exercised under non-existing power, does nof invalidate the exercise of that power· In that connection re-liance was placed on the decisions of this Court in L. Hazari Mal /(uthiala v. Income-tax Officer, Special Circle Ambala Gantt. a~d anr.( 1) and Huk.umchand Mills Ltd. v. State of Madhya Pradesh an.d anr.(").

The former .case considered the validity of a transfer of an income-tax proceeding ordered by the· Commissioner of Income-tax, Punjab. ·He purported to make the order in question under s. 5(5) and 7(A) of the Indi.a.n Income-tax Act, 1922 instead of making that orqer under s. 5(5) -O'f the Patiala Income-tax .Act. Un~r both tl).ose provisions, he had sinJilar powers. This Court help th.at once jt is established -t,hat the Commissioner' had power to transfer the proc~ing, the fact that he purported to exercise t'1at power under a wrong provision of Jaw would not vitiate his order. The exercise of that power would be referable to a jurisdic-tion which conferred validity upon it and not to a jurisdiction un.!fer w/li~h jt wo1Jld be l)ugatory.

Jn Hukumchand Mills .case{') this Co1Jrt again ruled that it ~ well established t/1,at wrong referenc!l to the power under which action was tl)ken bY tb.e Jiovemmero would not per se vitiate that action if it could be i!Js!iJjed under some other power under which the government could lawfully qo that act : and therefore, even though the notification dated December 28, 1949, by which amend-m.ents were made to (he Indore ll)dustri11l Tax Rules, 1927, w.as purported liO be made under rule 17 of those rules, the amend-ments were valid because the government had power to make the amendments under s. 5(1) and (3) of Act I of 1948. Failure to refer to s. 5 did not invalidate the notification.

The legal principle enunciated in those decisions ii a well estab-lished principle· H an authority has a valid power to do a parti-cular act, the fact that it purported to do that act under a provision of law which did not confer power to do that act, would not £- validate the Act. But that rule is inapplicable to the facts of the present case.

Before taking action under s. 24(2), the Improvement Trust had to form a particular opinion. The form.atiq_n of iliat opinion is a condition precedent. Until the Improvement Trust forms that opinion, it is incompetent to take action under that section. The Act has not conferred any blanket power on the Improvement Trust, to frame any scheme which it thought fit. That being so, it is not possible to uphold the contention of the appellants that the impugned scheme can be traced to a valid power.

There is yet another difficulty in the way of the appellants. The schemes framed by Improvement Trusts do not come into force automatically. They have to be sanctioned by the govern-ment· The governrnen. may accept them. It may reject them. It may amend them and it may even send them back to the Im-provement Trusts for reconsideration. Hence, it is necessary for the government to know before sanctioning the scheme as to what the scheme is, so tha•t it may examine whether that scheme is neces-sary or feasible. Unless the government is informed as to the nature of the scheme, it would not be possible for the government JI to consider whether the scheme should be sanctioned or not. In

the present case, th~ government was informed that the scheme in question was "a development cum housing accommodation scheme". It has approved that scheme. We do not know whether it would have sanctioned "an expansion scheme".

Mr. V. C. Mahajan learned counsel for the State of Punjab contends that the government must be presumed to have known the true facts before sanctioning the scheme and the government has no objection for the scheme in question. Even if we accept that contention that does not alter the legal position. We should not mix' up the facts of this case with the scope of the relevant pro~;sions in the Act. We cannot confine our attention to the facts of a particular case. Our conclusion that the power conferred on the Improvement Trust is a limited power ls reached on the basis of the nature of the power conferred and not on the basis of the facts of this case. The fact that the government is prepared to bless a particular scheme does not change the nature of the power.

The scheme before us is one and indivisible. It is not possible to hold that it is partly valid and partly invalid. It has to stand or fall as a whole.

For the reasons mentioned above, these appeals are dismissed with costs-hearing fee one set.

CIVIL APPELLATE JURISDICTION : Civil Appeals No. 1418. 1419 and 1662 of 1968.

Appeals from the judgments and orders dated July 29, 1966 and January 3, 1966 of he Punjab High Court in Civil Writ Nos. 2052 and 2053 of 1965.

S. K. Mehta, K. L. Mehta and K. R. Nagaraja, for the appel-lant (in C.As.Nos. 1418 and 1419 of 198).

V. C. Mahajan and R. N. Sachthey, for the appellant (in C.A. No. 1662 of 1968).

Bishan Narain, 0. P. Sharma, B. Datta, and /. B. Dadacha11i. for respondents Nos. I to 5 (in C.As. Nos. 1418 nd !662 of 1968).

Frank Anthony and E. C. Agrmrn/a, for respondent No. ( in C.A. No. 1419 of 1968).