BHIKHABHAI HARMANBHAI PATEL v. STATE — 1994 DIGILAW 199 (GUJ)

A. N. DIVECHA, SUSANTA CHATTERJI, J. ( 1 ) ). The petitioners have moved this petition under Article 226 of the Constitution of India for questioning the validity of the acquisition proceedings inter alia with respect to their one parcel of land bearing Survey No. 1082/1 admeasuring 38 RA 45 square metres (equivalent to 3845 square metres) situated at village Karamsad taluka Anand district Kaira (the disputed land for convenience ). ( 2 ) ). The facts giving rise to this petition move in a narrow compass. The notification under Section 4 of the Land Acquisition Act 1894 (the Act for brief) was issued on 26th July 1963 and it was published in the Gujarat Government Gazette on 1st August 1963. It was followed by the declaration under Section 6 thereof on 26th October 1964. It appears that Special Civil Application No. 903 of 1964 was moved before this Court for questioning the validity of the aforesaid declaration under Section 6 of the Act. It appears that this Court upheld the challenge and quashed the aforesaid declaration under Section 6 of the Act. It may be mentioned at this stage that pursuant to the aforesaid declaration under Section 6 of the Act an award of compensation for the acquired lands came to be made on 28th March 1968. Since this High Court quashed the aforesaid declaration under Section 6 of the Act the award made on 28th March 1968 also came to be non est. Thereafter a fresh declaration under Section 6 of the Act was issued on 18th January 1969 and it was published in the Gujarat Government Gazette on 19th January 1969. It appears that respondents Nos. 1 and 2 were in the meantime trying to pursuade the affected land owners to agree for consent awards with respect to the compensation to be awarded for their acquired lands. As transpiring from the affidavit-in-reply filed on behalf of respondents Nos. 1 and 2 consent awards in respect of as many as 108 parcels of land came to be passed. So far as the petitioners are concerned they appear not to have agreed to any consent award. In their case the award of compensation for the disputed land came to be passed on 23rd September 1986. The petitioners were aggrieved by such delayed action on the part of respondents Nos. So far as the petitioners are concerned they appear not to have agreed to any consent award. In their case the award of compensation for the disputed land came to be passed on 23rd September 1986. The petitioners were aggrieved by such delayed action on the part of respondents Nos. 1 and 2 and have therefore moved this Court by means of this petition under Article 226 of the Constitution of India for questioning the validity of the acquisition proceedings. ( 3 ) THE main ground on which the validity of the acquisition proceedings is challenged before us is to the effect that the award under Section 11 of the Act came to be passed nearly 17 years after the declaration under Section 6 of the Act was made on 18th January 1969 inter alia with respect to the disputed land. It has been urged that since the power to make the award within a reasonable time from the date of the declaration is under Section 6 of the Act was not exercised the acquisition proceedings lapsed. It has also been urged that by not initiating the action for making of the award inter alia with respect to the 20 disputed land under Section 11 of the Act there was a clear indication on the part of respondents Nos. 1 and 2 to abandon the acquisition proceedings. The validity of the acquisition proceedings has as also been challenged on the ground that the compensation awarded for the disputed land would be illusory inasmuch as though the notification under Section of the Act was issued as back as on 26th July 1963 the award of compensation was made nearly 23 years thereafter on 23rd September 1986. According to the petitioners the prices of realties have during the intervening period soared spiralled and sky-rocketed. One more challange to the acquisition proceedings is made on the ground of non-service of the notice under Section 9 (3) of the Act to the petitioners. The respondents have on the other hand tried to support the acquisition proceedings by taking recourse to Section 11-A of the Act as has come to be introduced by the Land Acquisition (Amendment) Act 1984 (the Amending Act for brief ). The respondents have on the other hand tried to support the acquisition proceedings by taking recourse to Section 11-A of the Act as has come to be introduced by the Land Acquisition (Amendment) Act 1984 (the Amending Act for brief ). The respondents have also urged that the notice under Section 9 (3) of the Act has come to be served to the petitioners before making of the award on 23rd September 1986. ( 4 ) AS pointed out hereinabove Section 11-A of the Act has come to be brought on the statute book by the Amending Act with effect from 24th September 1984 It has prescribed the time-limit of two years for making of the award from the date of the publication of the declaration under Section 6 thereof. It has further been stipulated therein that if no such award is made within the prescribed time-limit it would result into lapsing of the acquisition proceedings. However with a view to salvaging the pending acquisition proceedings the proviso has also been made for making of the award within two years from the date of commencement of the Amending Act in respect of the declarations under Section of the Act made prior to commencement of the Amending Act. This proviso to Section 11-A of the Act has been resorted to by and on behalf of the respondents in support of the validity of the acquisition proceedings. ( 5 ) ). It is not in dispute that the declaration under Section 6 of the Act in the present case was made on 18th January 1969. It was certainly prior to commencement of the Amending Act. No award was made in respect of the disputed land prior to coming into force of the Amending Act. It was thus a pending case before commencement thereof. In that view of the matter the case would fall within the purview of the proviso to Section 11-A of the Act. The time-limit for declaration of the award was statutorily fixed. thereunder till the expiry of two years from the date of commencement thereof that is the Amending Act. The award of compensation for the disputed land was required to be made on or before 23rd September 1986 in terms of the aforesaid proviso to Section 11-A of the Act. The time-limit for declaration of the award was statutorily fixed. thereunder till the expiry of two years from the date of commencement thereof that is the Amending Act. The award of compensation for the disputed land was required to be made on or before 23rd September 1986 in terms of the aforesaid proviso to Section 11-A of the Act. It is not in dispute that the award of compensation for the disputed land has come to be made on 23rd September 1986. This was certainly done within the stipulated time-limit. In that view of the matter the challenge to the acquisition proceedings on the ground of delay-in making the award cannot be upheld. ( 6 ) ). We are fortified in our view by the binding ruling of the Supreme Court in the case of Kaliyappan v. State of Kerala reported in AIR 1989 Supreme Court 239: In that case the notification under Section 3 (1) of the Kerala Land Acquisition Acts (a provision similar to Section 4 of the Act) was issued on 24th February 1981 and the declaration under Section 6 thereof was made on 19 January 1984 and the award of compensation for the land acquired in that case was made incidentally on 23rd September 1986. The challenge to the acquisition proceedings in that case was turned down by the Supreme Court in view of the proviso to Section 11-A of the Act. It has been held therein: an award of Collector would not be liable to be quashed on the ground of inordinate delay where it has been made at the end of two years from the date of commencement of- the Land 30acquisition (Amendment) Act 1984 A proceeding for acquisition cannot be set aside on the ground of delay by applying our own standard of speed in the matter of making awards even where the period as occupied is less than two years from the date of publication of the declaration under S. 6 of the Act as such an approach may drive the Collector to make awards without giving adequate time to the 40 claimants to adduce evidence in support of the valuation of the property proposed to be acquired and without giving sufficient consideration to the material placed before him. It would be safer in such cases to rely upon the statute for guidance as regards the maximum time that can be taken to make an award instead of proceeding to strike down acquisition proceedings on the ground of delay in making the awards by applying varying standards to different cases even though the maximum time of two years has not been exceeded. The very fact that S. 11-A has prescribed the period of two years from the date of the commencement of the Land Acquisition (Amendment) Act 1984 as the maximum period within which the award can be made suggests that the time taken by the Land Acquisition Officer in such case to make the award cannot be considered to be fatal to the acquisition proceeding. (Emphasis supplied.) ( 7 ) ). The aforesaid binding ruling of the Supreme Court is on all fours applicable in the present case. Kum. Shah for the petitioners has tried to distinguish the 24 aforesaid binding ruling of the Supreme Court on the ground that the delay therein was not so inordinate as is found in the present case. According to her the delay in the case before the Supreme Court was nearly of three years whereas in the present case the delay is of nearly 17 years. We are afraid we cannot distinguish a binding ruling of the Supreme Court on the ground that the length of the delayed period therein was different from that in the present case. Besides the emphasised portion from what is quoted from the aforesaid ruling of the Supreme Court would go to show 3 that inordinate delay cannot be a ground to upset any acquisition proceeding if the authorities have acted within the permissible time-limit prescribed in the proviso to Section 11-A of the Act. ( 8 ) ). Kum. Shah for the petitioners has relied on the recent ruling of the Supreme Court in the case of Ram Chand v. Union of India reported in 1994 (1) Gujarat Law Herald 362 in support of her submission to the effect that inordinate delay in making the award after declaration is made under Section 6 of the Act would result into lapsing of the acquisition proceedings. In that case the notification under Section 4 of the Act was issued on 13th January 1959 for 24000 acres of land and another notification thereunder was issued on 24th October 1961 for 16000 acres of land. One more notification under Section 4 of the Act was issued on 23rd January 1965. The declarations under Section 6 of the Act were issued on 16th May 1966 and 13th January 1969 with respect to 2157 Bighas of land and 88 Bighas of land respectively. Another declaration under Section 6 of the Act was made on 6th December 1966 and that was the subject-matter of controversy in the aforesaid ruling of the Supreme Court in the case of Ram Chand (supra ). In that case the awards were made as late as in 1981 1982 and 1983 but before commencement of the Amending Act. In that context the Apex Court found the case to be hopelessly delayed and quashed the acquisition proceedings. In the course of the judgment the Supreme Court has clearly observed that Section 11-A of the Act would not be applicable to the land acquisition proceedings as the awards were made prior to 24th September 1984 that is prior to commencement of the Amending Act. The aforesaid binding ruling of the Supreme Court in the case of Ram Chand (supra) is obviously distinguishable on its own facts. Even at the cost of repetition it may be reiterated that the awards in that case were declared prior to commencement of the Amending Act. In the case before us the award of compensation with respect to the disputed land has been declared after commencement of the Amending Act and within the time-limit prescribed by the proviso to Section 11-A of the Act. In that view of the matter the aforesaid binding ruling of the Supreme Court in the case of Ram Chand (supra) will not come to the rescue of the petitioners in their challenge to the acquisition proceedings. ( 9 ) ). It is difficult to accept the submission urged before us by Kum. Shah for the petitioners to the effect that inaction on the part of respondents Nos. 1 and 2 for as many as 17 years in making the award would clearly indicate that the idea of acquiring the disputed land was abandoned. The reason therefore is quite simple. It is difficult to accept the submission urged before us by Kum. Shah for the petitioners to the effect that inaction on the part of respondents Nos. 1 and 2 for as many as 17 years in making the award would clearly indicate that the idea of acquiring the disputed land was abandoned. The reason therefore is quite simple. In this connection paragraph 13 of the affidavit-in-reply filed on behalf of respondents Nos. 1 and 2 deserves to be referred to. Therein it has clearly been mentioned that after the declaration is under Section 6 of the Act was issued on 18th January 1969 the authorities were making efforts to have consent awards passed with respect to the acquired lands. It cannot be gainsaid that a consent award 20 under the Act brings an end to the matter qua the compensation part of the acquisition proceedings. It would therefore but be natural that the authorities would be keen to have consent awards passed. It cannot be gainsaid that to draw a party to an agreed amount of compensation is a time-consuming process. It cannot be done overnight. Any hasty action in the process might thwart the idea of drawing the concerned land owners to an agreed formula for compensation for the acquired lands. In that view of the matter it is difficult to accept the submission that respondents 35 Nos. 1 and 2 remained indolent all throughout after the declaration under Section 6 of the Act was issued on 18th January 1969. If the idea was to abandon the acquisition proceedings the concerned authorities would not have attempted to bring about any consent award with respect to any of the acquired lands. On the contrary it has been stated in paragraph 13 of the affidavit-in-reply as aforesaid that consent awards have been passed with respect to as many as 108 parcels of land acquired under the notification under Section 4 of the Act inter alia acquiring the disputed land. ( 10 ) ). We are unable to accept the submission urged before us by Kum. Shah for the petitioners to the effect that the acquisition proceedings can be. said to have lapsed as the award under Section 11 of the Act was not declared within a reasonable time after issuance of the declaration under Section 6 thereof way back in 1969. We are unable to accept the submission urged before us by Kum. Shah for the petitioners to the effect that the acquisition proceedings can be. said to have lapsed as the award under Section 11 of the Act was not declared within a reasonable time after issuance of the declaration under Section 6 thereof way back in 1969. According to her the acquisition proceedings became dead on account of inaction on the part of the authorities and introduction of Section is 11-A of the Act on the statute book by the Amending Act would not and would not infuse any life in such dead matter. We think that the acquisition proceedings had not become dead simply on the ground of inaction on the part of the concerned authorities in not making the award within a reasonable time after issuance of the declaration under Section 6 of the Act. Different considerations would have arisen if the petitioners had chosen to seek such declaration prior to coming into force of the Amending Act. In view of the position of law prevalent at that time the petitioners might have got the desired relief of declaration about the fate of the acquisition proceedings on account of inaction on the part of the authorities in not making the award within a reasonable time from the date as of the declaration under Section 6 of the Act. However much to chagrin of the petitioners the Amending Act saw the light of the day on 24th September 1984 and the authorities got some time for making the award before the expiry of such time-limit on 23rd September 1986. ( 11 ) ). As rightly submitted by Kum. Shah for the petitioners there was no time-limit for making the award before introduction of Section 11-A of the Act by the Amending Act. We also agree with Kum. Shah for the petitioners in her submission to the effect that the purpose of the Amending Act in inserting Section 11-A in the Act was to see that the land-owner would get to some extent just and fair compensation for his acquired land. In fact the Court from time to time developed the concept of taking the necessary action within a reasonable time in absence of any such prescribed time-limit for such action. In fact the Court from time to time developed the concept of taking the necessary action within a reasonable time in absence of any such prescribed time-limit for such action. In a given case it would be possible that the notification under Section 4 of the Act might have been issued some ten or more years before the declaration under Section 6 thereof. In that case the concerned land-owner would not get any fair and just compensation for his acquired land as the market value as on the date of the notification under Section 4 thereof might have gone an upward sea-change at the time of issuing the declaration under Section 6 thereof. In older to ameliorate the plight of the land-owner in such circumstances the time-limit for issuing the declaration under Section 6 of 1 Act was prescribed by bringing about the necessary amendment in the Act in 1967. Thereafter also it might have been observed that the matter would remain pending for a number of years without making the award. There could be diverse reasons for not making the award after issuance of the declaration under Section 6 of the Act. In that case also the compensation for the acquired land would not be fair and just on account of soaring spiraling and sky-rocketing prices of the realties during the intervening period. In order to retrieve this position the Legislature thought it fit to bring on the statute book Section 11-A of the Act However with a view to salvaging the situation of non-making of the award on account of a variety of reasons a proviso was made thereunder for giving a time-limit of two years from the date of commencement of the Amending Act for making the award. In that view of the matter it would be difficult to accept the submission that the passage of time had resulted into the death of the acquisition proceedings. The correct simile could be that inaction in making the award within a reasonable time might have rendered the acquisition proceedings breathing their last but they were not rendered dead. The Amending Act could be said to have come to their rescue and the antidote provided thereby might have infused life in it. ( 12 ) ). The correct simile could be that inaction in making the award within a reasonable time might have rendered the acquisition proceedings breathing their last but they were not rendered dead. The Amending Act could be said to have come to their rescue and the antidote provided thereby might have infused life in it. ( 12 ) ). The challenge to the acquisition proceedings based on the so-called illusory compensation has to be stated only to be rejected simply for the reason that the compensation has been awarded according to the relevant provisions contained in the Act and not de hors thereto. The compensation payable for to any acquired land has to be determined in the light of its market value as on the date of the notification under Section of the Act. It is true that there has been some delay of substantial nature in determining the compensation payable for the disputed land. The market value of the disputed land on the date of the award might be much higher than its determination in the light of its market as value on the date of the notification under Section 4 of the Act. The petitioners could derive solace from the fact that even according to them possession of the disputed land has not been taken from as them. They have continued to enjoy the usufruct of the disputed land all these years. Besides in view of. the amended provisions of Sections 23 and 34 of the Act they would get certain additional compensation and solatium and the higher rate of interest on the awarded amount of compensation. Inadequacy of compensation can hardly be a ground for challenging the acquisition proceedings when the compensation is determined in accordance with the relevant provisions contained in the Act. ( 13 ) ). Kum. Shah for the petitioners has then urged that no notice under Section 9 (3) of the Act has come to be served to the petitioners and that has resulted in vitiation of the award and if there is no valid award the acquisition proceedings would lapse by virtue of the substantive part of Section 11-A of the Act as no award has come to be declared with respect to the disputed land within two years from the commencement of the Amending Act. As against this it has been urged on behalf of the respondents that the notice under Section 9 of the Act was in fact served to the petitioners. ( 14 ) ). It would be quite proper at this stage to look at the communication at Annexure-D to this petition. It is dated 20th August 1986. The captioned subject is Declaration of award for Survey No. 1082/1. It is addressed inter alia to the petitioners. It is not in dispute that the petitioners were interested persons in the disputed land. Under the aforesaid communication at Annexure-D to this. petition the petitioners were directed to remain present in the Gram Panchayat office at Karamsad at 12 noon on 5th September 1986 before the author of the communication inter alia in connection with the award to be made for compensation for the disputed land. According to the respondents this would constitute the required notice under Section 9 (3) of the Act. Kum. Shah for the petitioners has urged that the communication at Annexure-D to this petition would not answer the notice contemplated under Section 9 (3) of the Act. ( 15 ) ). It may be mentioned at this stage that no form for the notice under Section 9 (3) of the Act has been prescribed. Such notice has to be to the effect of the notice the contents of which should answer the requirements stipulated in Section 9 (2) of the Act. It has been specified therein that such notice should state the particulars of the land and shall require all persons interested in the land to appear personally or by agent before Collector at a time and a place therein mentioned. The further requirement is that the time for appearance should not be earlier than 15 days after the date of publication of the notice. As aforesaid the communication at Annexure-D to this petition is dated 20th August 1986: The time fixed for appearance before the Land Acquisition Officer who would obviously be the Collector for the purpose under the relevant provisions of the Act was 5th September 1986. The communication has thus given a clear 15 days notice for appearance before the concerned authority. It has also mentioned the place of appearance before such authority. It has also mentioned the survey number of the disputed land. The communication has thus given a clear 15 days notice for appearance before the concerned authority. It has also mentioned the place of appearance before such authority. It has also mentioned the survey number of the disputed land. Simply because the petitioners are directed to bring with them any ad interim injunction or any interim injunction or any final order of the Court it would not mean that it does not answer the requirement of law for issuance of such notice. ( 16 ) ). It cannot be gainsaid that the notice under Section 9 (3) of the Act is for the purpose of giving an idea to the concerned landholder as to why he is required to appear before the authority. If the landholder has understood the contents of the notice he need not be permitted to make any grievance regarding its not strictly answering the requirement of law. It is not in dispute that the petitioners gave a reply to the communication at Annexure-D to this petition. A copy of their reply is at Annexure-E to this petition. Its perusal makes it clear that the petitioners did understand the contents of the communication at Annexure-D to this petition. It may be that the communication at Annexure-D to this petition does not satisfy all the requirements of law as specified in Section 9 of the Act. The petitioners have not made any grievance as to its vagueness on account of want of any particulars in that regard. ( 17 ) ). It is true that service of notice under Section 9 (3) of the Act has been held to be mandatory by this Court in its Division Bench ruling in the case of Mohmadsarif v. State reported in (1967) 8 Gujarat Law Reporter 418. The aforesaid Division Bench ruling of this Court has however not stated that such notice has to be served only in a particular form. The prescription of contents of the notice as specified in Section 9 of the Act cannot be said to be mandatory. As aforesaid the idea of service of the notice under Section 9 of the Act is to post the concerned land-owner with the proceedings for making of the award. The only mandatory part thereof is prescription of the time-limit of 15 days for appearance before the authority determining the amount of compensation for the acquired land or lands. As aforesaid the idea of service of the notice under Section 9 of the Act is to post the concerned land-owner with the proceedings for making of the award. The only mandatory part thereof is prescription of the time-limit of 15 days for appearance before the authority determining the amount of compensation for the acquired land or lands. We are therefore of the opinion that the communication at Annexure-D to this petition can be said to be the notice for the purposes of Section 9 (3) of the Act. In this view of the matter we are unable to accept the contention urged by Kum. Shah for the petitioners before us to the effect that no notice under Section 9 (3) of the Act has come to be-served to the petitioners. The validity of the award a made on 23rd September 1986 cannot be challenged by and on behalf of the petitioners on the ground of non-service of such notice. ( 18 ) ). These were the only submissions urged before us in support of this petition. We have found no merit in any of them. The acquisition proceedings deserve not to be: declared to have lapsed or abandoned. They ale found to be quite legal and valid. ( 19 ) ). In the result this petition fails. It is hereby rejected. Rule is accordingly discharged with no order as to costs. The ad interim relief stands vacated. ( 20 ) ). At the oral request of Kum. Shah for the petitioners the operation of this judgment is stayed for a period of 12 (twelve) weeks from today to enable the aggrieved petitioners to approach the higher forum for questioning the correctness of this Judgment of ours on the condition that the petitioners or their authorised representative should file on or before 30th July 1994 an undertaking to this Court to the effect that they are in actual possession of the disputed land and that they will not in any manner transfer it will not part with its possession and will not change the character of their occupation and possession of the disputed land during the intervening period. .