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1975 DIGILAW 209 (DEL)

JAI NARAIN v. LAND ACQUISITION COLLECTOR, DELHI

1975-11-17

B.C.MISRA

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B. C. MISRA ( 1 ) THIS writ petition has been filed against the declaration of the Delhi Administration dated 20th September, 1968 published in the Gazette on 28th November, 1968 (Annexure A-III) (hereinafter called as the declaration in dispute) under Section 6 of the Land Acquisition Act (1 of 1894) (hereinafter called as the Act ). The land in dispute is situated in the revenue state of Chandrawal alias Shahdara. The petition has been filed on the ground that after the issue of notification under Section 4 of the Act, a declaration was issued under Section 6 of the Act dated 1st November, 1966 published in the Gazette on 10th November, 1966 (Annexure A-I ). The said declaration related to the land in dispute. Eventually another declaration was issued under Section 6 of the Act dated 20th September,. 1968 published in the Gazette on 28th November, 1968 (Annexure A-II) (which bears precisely the same date as of Annexure III) and by this declaration the land in dispute of the petitioner was deleted from the previous declaration, and some other corrections were made. On the same day another declaration under Section 6 (Annexure III) was issued which covered the lands in dispute belonging to the petitioner besides two other fields which are not in dispute before me. ( 2 ) IN the writ petition two grounds of attack had been laid, one was that the declaration had been made by the Lt. Governor while it ought to have been made by the appropriate Government and secondly, after the deletion of the lands in dispute by Annexure A-II, the notification under Section 4 had been exhausted and the Government did not have any power to re-issue a declaration without a fresh notification under Section 4 of the Act ( 3 ) MR. Dalal has appeared to support the writ petition. So far as the first point is concerned, the matter stands concluded by the decision of this court in Management of M/s. Patiala Iron Works v. Union of India, ILR (1975) 1 Delhi 613 = (1975 Lab 1c 1265) (FB ). It has been held by the said authority that the appropriate Government in the Union Territory of Delhi is the Lt. Governor. This was a case under the Industrial Disputes Act, but the same reasoning will apply to the provisions of the Land Acquisition Act and Mr. It has been held by the said authority that the appropriate Government in the Union Territory of Delhi is the Lt. Governor. This was a case under the Industrial Disputes Act, but the same reasoning will apply to the provisions of the Land Acquisition Act and Mr. Dalal has very fairly conceded that in view of the said authority, he is unable to press this objection. ( 4 ) THE second contention Mr. Dalal has urged with force. The counter- affidavit filed on behalf of the respondents has explained that the declaration Annexure A-I dated 1st November, 1966 had been issued on the basis of a notification dated 24th October, 1961 under Section 4 of the Act but it had been later discovered that the land in dispute was not covered by the said notification but it was covered by the general notification which had been issued on 13th November, 1959. It was, therefore, necessary to rectify the mistake. Consequently the declaration Annexure A-II was issued deleting the land in dispute from the declaration Annexure A-I but simultaneously a correct declaration was issued on the same date Annexure A-III and the same does not suffer from any legal infirmity. ( 5 ) THE scheme of the Act is quite dear. Under Section 4 of the Act the appropriate Government issues a notification to the effect that the land is likely to be needed for any public purpose and objections are invited and disposed of. Finally if the Government is satisfied, a declaration is issued under Section 6 of the Act to the effect that the land is needed for public purposes and such declaration is published in the Gazette and is a conclusive evidence of the land being needed for public purposes. Thereafter the proceedings under the Act are initiated for making of the award and taking possession of the land in accordance with the provisions of the law. ( 6 ) THE power of withdrawal from acquisition is conferred by Section 48 of the Act, relevant portion of which runs as follows: "except in the case provided for in Section 36, the Government shall be at liberty to withdraw from the acquisition of any land of which possession has not been taken. " ( 7 ) THIS power can be exercised by the Government after declaration under Section 6 had been issued but before possession has been taken. " ( 7 ) THIS power can be exercised by the Government after declaration under Section 6 had been issued but before possession has been taken. Should the Government withdraw from the acquisition of any land in exercise of the said power, it is obvious that Section 4 notification on the basis of which the land was being acquired has exhausted itself and if the Government considers it fit again to acquire the land, it shall have to act in accordance with the provisions of Sections 4 to 8 of the Act. Thus in this view of the matter the contention of Mr. Dalal appears to be plausible. ( 8 ) HOWEVER, from the facts of the instant case it is clear that it is not a withdrawal under Section 48 of the Act that the Government has effected. In this case there was a clear error and rather a clerical error had occurred. The first declaration Annexure A-I had been issued on the basis of Section 4 notification dated 24th October, 1961 while the notification under Section 4, relevant to the acquisition of the land in dispute was dated 13th November, 1959. The Government was really entitled to correct the error. In fact, it was its duty to do so in public interests. Consequently the Government acted properly in deleting the land in dispute from the first declaration Annexure A-I and A-II. It is manifest that the Government had no intention to withdraw from acquisition or abandon the acquisition and so it properly issued the declaration in dispute (Annexure A-III) simultaneously on the same date by which it included the land in dispute. This was, as pointed out by the respondent No. 1, based on the notification under Section 4- of the Act dated 13th November, 1959. ( 9 ) SO far as the propriety of the action taken is concerned there can be no doubt about the same. Mr. Dalal has, however, challenged the legality of the action of the Government. This was, as pointed out by the respondent No. 1, based on the notification under Section 4- of the Act dated 13th November, 1959. ( 9 ) SO far as the propriety of the action taken is concerned there can be no doubt about the same. Mr. Dalal has, however, challenged the legality of the action of the Government. Answer to the objection of the learned counsel is found in Section 21 of the General Clauses Act, 1897 which provides that where by any Central Act or Regulation, a power to issue notifications, orders, rules or bye- laws is conferred, then that power includes a power, exercisable in the like manner and subject to the like sanction and conditions, if any, to add to, amend, vary or rescind any notification, orders, rules or bye-laws so issued. This power can be exercised by the Government from time to time and so it had every jurisdiction and power to amend, vary or rescind the previous declaration and issue a fresh declaration under Section 6 of the Act. The question however, stands concluded by two decisions of the Supreme Court. In Girdbarilal Amratlal Shodan v. State of Gujarat, AIR 1966 SC 1408 , the court observed that the cancellation was in recognition of the invalidity of the earlier notification and there was nothing in Section 48 which precluded the Government from treating the earlier invalid notification as ineffective and issuing in its place an effective notification under Section 6. Again in State of Madhya Pradesh v. Vishnu Prasad Sharma, AIR 1966 SC 1593 , the court observed in para 19 that Section 48 of the Act was not the only method by which the Government can withdraw from the acquisition and that Government can always cancel the notifications under Sections 4 and 6 by virtue of its power under Section 21 of the General Clauses Act and this power can be exercised before the Government directs the Collector to take action. The court further observed that Section 48 (1) is a special provision for those eases where proceedings for acquisition have gone beyond the stage of the issue of notice under Section 9 (1) and it provides for payment of compensation under Sections 48 (2) and 48 (3 ). The court expressly rejected the argument that without an order under Section 48 the notification under Section 4 must remain outstanding. The court expressly rejected the argument that without an order under Section 48 the notification under Section 4 must remain outstanding. The Court observed that the same can be cancelled at any time by Government under Section 21 of the General Clauses Act. ( 10 ) IN view of the aforesaid authorities I have no doubt about the legality or validity of the order of the Delhi Administration in issuing the declaration in dispute Annexure A-III. ( 11 ) COUNSEL for the parties have drawn my attention to a decision of Division Bench of this Court in Brahma Kumari Prakash Mani v. Union of India, L. P. A. 91 of 1970 decided on 21st May, 1975. (Reported in 1975 Rajdhani LR 431 (Delhi ). That decision is based on the facts of its own case and there is nothing in the said decision which warrants a view contrary to the view that I have taken in this case. ( 12 ) AS a result the writ petition has no force and the same is hereby dismissed but in the circumstances of the case the parties are left to bear their own costs.