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1996 DIGILAW 1217 (RAJ)

Rajendra Kumar v. State of Rajasthan

1996-10-31

V.K.SINGHAL

body1996
JUDGMENT 1. - The dispute in the present writ petition is with regard to the notification dated 6.1.1988 published in the Rajasthan Gazette on 7.7.1989 under Section 4 of the Land Acquisition Act and the declaration under Section 6 dated 28th July, 1989 published in the Gazette on 31st July, 1989 and also the award which has been passed on 17.6.91. The land is situated in Prithvi Raj Nagar of the Scheme of Jaipur Development Authority. The various controversies raised are settled by the decision of the Division Bench of this Court in the case of State v. Jaipur Nagar Housing Cooperative Societies, reported in 1996(2) WLC 463 . The learned counsel for the petitioner has raised the following points before me : (i) That the award has been passed after two years and therefore, it is without jurisdiction. (ii) That since the award is incomplete as such it is not award in the eyes of law. (iii) That notices to all the co-sharers. were not given, therefore, the proceedings are vitiated on that ground. 2. In order to examine the first contention of the learned counsel for the petitioner as to whether the award was passed after the expiry of two years not the facts, are to be examined. 3. The facts are that the declaration in this case was issued under Section 6 on 6.1.1988 which was published in the gazette on 7.7.88. The last mode is stated to be on 31st July, 1988 and therefore, according to the submission of the learned counsel for the petition the award should have been passed by 30th July, 1991. The award in this case has been prepared on 7th June, 1991 and it was sent to the government. After receiving the approval of the State Government, the final award was passed on 31st July, 1991. The possession of the land has already been take on 24.11.93. and once the possession is taken and property vests with the respondents, the question that the award has not been passed within two years, cannot be allowed to be raised. The Apex Court in 1995(6) SCC 33, has held that if the notification under Section 17(4) has been issued, then the question of limitation as prescribed under Section 11-A will not arise on the same analogy in the present case also, since the possession has been taken, this point cannot be considered. The Apex Court in 1995(6) SCC 33, has held that if the notification under Section 17(4) has been issued, then the question of limitation as prescribed under Section 11-A will not arise on the same analogy in the present case also, since the possession has been taken, this point cannot be considered. This is beside the fact that the other similar writ petitions and appeals in respect of this very scheme and notifications. have already been dismissed by the Division Bench of this Court. 4. Regarding the second point, it is stated the piecemeal award is not contemplated under the Act and in the award dated 31st July, 1991, it is mentioned that in respect of trees, roads, well and structures over the land, since the petitioners have not submitted approved estimates as such no award is passed. Therefore, valuation thereof cannot be determined. It is no doubt mentioned that on receipt of the approved estimates, the compensation would be determined and it is on that basis that the petition is' aggrieved. The award passed by the Land Acquisition Officer is not contemplated in piece-meal and, therefore, the only inference which can be drawn is that the award dated 31st July, 1991 is the final award and since the compensation has not been paid in respect of the alleged constructions etc., the proper remedy for the petitioner was to move under, section 18-of the Act. Any award passed after the limitation of two years, cannot be considered to be valid and as such, the observation of the Land Acquisition Officer, therefore, to this extent that separate order would be passed on receiving the approved estimates is illegal and without jurisdiction. This would not make the award already passed on 31.7.1991 itself illegal or without jurisdiction. 5. Learned counsel for the petitioner relied the decision of Mohammed Sarif Hakimji Chippa and others v. State of Gujarat and Ors., AIR 1967 Guj. This would not make the award already passed on 31.7.1991 itself illegal or without jurisdiction. 5. Learned counsel for the petitioner relied the decision of Mohammed Sarif Hakimji Chippa and others v. State of Gujarat and Ors., AIR 1967 Guj. 269 wherein it was observed by the Gujarat High Court as under : "Reading all those Sections together, the legislative intends become clear that in respect of the land under acquisition of matters referred to in Section 11 between all persons interested must be decided by one award to construe them otherwise may lead to anomaly." In this case it was observed : "We would, however, like ti add, that dealing with the same piece of land in respect of matters referred to in Section 11 of the Act, by more than one document, cannot be encouraged and may only be justified as an exception and not as a rule. Law expects the making of only one award and if the provisions of the Act are followed strictly and they should be there can hardy be any scope or justification for there being more than one document constituting the 'award'. Court cannot look with favour any laxity in following the provisions of law and more often than not the act of dealing with the land by more, than one document is likely to be struck down as being illegal." The decision in the case of State of Kerala v. P.P. Hassan Kova, AIR 1968 SC 1201 has also been relied wherein it was observed as under : "When land-which expression includes by S. 3(a) of the Act benefits to arise out of land and things attached to the earth or fastened to anything attached to the earth is notified for acquisition, it is notified as a single unit whatever may be the interests which the owners thereof may have therein. The purpose of acquisition is to acquire all interests which clog the right of the Government to full ownership of the land, i.e. when land is notified for acquisition, the Government expresses is desire to acquire all outstanding interest collectively. That is clear from the scheme of the Land Acquisition Act under S. 1 of the Land Acquisition Act." 6. The purpose of acquisition is to acquire all interests which clog the right of the Government to full ownership of the land, i.e. when land is notified for acquisition, the Government expresses is desire to acquire all outstanding interest collectively. That is clear from the scheme of the Land Acquisition Act under S. 1 of the Land Acquisition Act." 6. On the basis of this decision it is contended that the purpose of acquisition is to acquire interest which clog the right of the Government to full ownership of the land i.e. when land is notified for acquisition the Government expresses its desire to extinguish all outstanding interest collectively. It is, therefore, the duty of the Land Acquisition Officer to determine in the first instance compensation which is to he paid for reception of those interests and then to apportion the compensation among the persons or believed to be interested in the land. When a reference under S. 18 is made, the Court has to assess the value of the unit and then to apportion the compensation among persons entitled thereto. The-Rule cannot be departed from merely because the receiver in whom the Jenmi rights in the land with buildings were vested failed to raise an objection to the quantum of compensation awarded ) him. 7. The decision in the case of Sharan Pal Singh and others v. State of Punjab & Ors., 1991 LACC 355 of Punjab & Haryana High Court is also relied wherein it was observed as under : "In the light of the authoritative pronouncement, there is no escape from the conclusion that the land, buildings, standing thereon and the standing crops and trees on the land constitute one unit, and the value of the entire unit has to be determined with all its advantages and potentialities. Necessary consequence will be that only one award has to be rendered for the unit, Section 11-A of the Act makes it mandatory for the Land Acquisition Collector to make an award under Section 11 ibid within a period of two years from the date of publication of the.declaration under Section 6 of the Act, and if no award is made within that period, the entire proceedings for the acquisition of land shall lapse. In the instant case, notification under Section 4 of the Act was published in the Punjab Government Gazette dated June 1, 1982, followed by a notification under Section 6 dated August 17, 1983. The Land Acquisition Collector made the award on march 25, 1985, relating to the land and not for the super-structure Collector was not the one envisaged under Section 11 of the Act. the same envisages the award for the unit, viz. the land, buildings and super structures and standing crops and tress thereon. The acquisition proceedings would lapse in so far as the award relates to that portion of the acquired land on which the super structures and trees were standing on the date the award had been made. The acquisition proceedings will lapse with regard to that part of the acquired land on which super-structures and trees were standing on the date of acquisition and for which no award was rendered within the prescribed period of two years from the date of publication of the declaration under section 6 of the Act." 8. The decision in the case of Dr. Angolo Fernandes v. Union of India & Ors., AIR 1991 Delhi 132 has also been relied wherein it was observed as under :. "In fine, it is found that the award has been made in violation of the first proviso to S. 11 of the Act. The period of two years prescribed under the Proviso to S. 11A of. the Act expired on 17th September, 1988. No valid award has been made within the prescribed period. Therefore, as provided in S. 11-A of the Act, the entire proceedings for the acquisition of the land have lapsed." 9. The decision of Allahabad High Court in 1991 LACC 431 has also been relied to show that where award is made in respect of land only and no award is passed for trees, gardens and the award is had. The decision of Apex Court in 1996(1) SCC 434 has also been relied to show that if possession is not taken though the acquisition proceedings have been lapsed even urgency provisions are applied. 10. The decision of Apex Court in 1996(1) SCC 434 has also been relied to show that if possession is not taken though the acquisition proceedings have been lapsed even urgency provisions are applied. 10. The submission of the learned counsel for the petitioner has no force in view of the decision of the Apex Court in the case of Mohanji v. State, JT (8) 1995 SC 599 wherein the Apex Court has held that Act has not contemplated more than one award and the subsequent award is without jurisdiction. In these circumstances. the objection raised by the petitioner has no substance. If the petitioners have not already availed of the remedy under Section 18 of the Act, they may now avail within a period of 15 days from today. 11. The last submission which is made is that the notice to all the co-sharers was not given. In this regard it may be observed that the possession of the land has already been taken on 24.11.1993 and the land vested in the State free from all encumbrances as observed by the Apex Court. in 1995(6) SCC 31 . The notice which is alleged not to have been issued to all the co-sharers under Section 9(1) of the Act was perused. In the said notice which was by way of public notice, khasra number of the petitioner has been given and name of any person is not mentioned and so is the position in the gazette notification dated 6.1.1988, complete description of the area khasra number, village etc. have been given and simply because the name has not been mentioned, it cannot be considered that any illegality has been committed by the respondents. 12. In Commissioner of Income Tax v. Gyan Prakash Gupta, 1987 ITR 501 where the notice was not served on all legal representatives after the death of the assessee after filing return it was held that the assessment made cannot be annulled/set aside and it would not make the assessment void abinitio. 13. 12. In Commissioner of Income Tax v. Gyan Prakash Gupta, 1987 ITR 501 where the notice was not served on all legal representatives after the death of the assessee after filing return it was held that the assessment made cannot be annulled/set aside and it would not make the assessment void abinitio. 13. In Commissioner of Income-tax v. Jai Prakash Singh, 1996 ITR 737 where the return was filed voluntarily by one out of ten legal representatives disclosing the entire income of the deceased and the assessment having been completed, raising of the objection that the other legal representatives were not served with the notice in appeal, it was held by the Apex Court that the assessment was irregular but not null and void. 14. In view of the above position of law, the third contention has no force and, the writ petition is having no force and is according dismissed.Writ Petition Dismissed. *******