Research › Browse › Judgment

Allahabad High Court · body

1996 DIGILAW 1405 (ALL)

A R SAREEN v. STATE OF U P

1996-12-09

B.M.LAL, BHAGWAN DIN

body1996
B. M. LAL, J. One A. P. Sareen and 20 others approached this Court under Ar ticle 226 of the Constitution of India seek ing an order, direction or writ in the nature of certiorari quashing the notification dated 18th April, 1996 issued under Sec tion 6 of the Land Acquisition Act, 1894 (hereinafter referred to as the Act) and the notifications dated 13th June, 1996 under Section 17 read with Section 9 of the Act issued by the respondent No. 1 State of L. P. attacking on various grounds that the enquiry under Section 5-A of the Act has wrongly been dispensed with and that the requirements of Section 17 (1) or Section 17 (2) of the Act are not satisfied and there fore, the power under Section 17 (4) of the Act for dispensing with the enquiry cannot be invoked. 2. Counter and rejoinder affidavits have been exchanged between the parties and the writ petition is being disposed of with the consent of parties in accordance with the Rules of Court. 3. In the instant case for determining the validity of the notification under Sec tion 6 of the Act pursuant to which further notifications under Section 17 read with Section 9 of the Act have been issued, this was to be seen that after issuance of notifications under Section 17 read with Section 9 oi the Act if the possession of land is deemed to have been taken over, whether the scope for determining the validity of the notification under Section 6 of the Act still survives? Thus, the actual controversy involved in this petition centres round the effect of the notification issued under Section 17 read with Section 9 of the Act and therefore, the question of law involved in this petition, in our con sidered opinion is concluded by the apex Court decision rendered in Ghaziabad Development Authority v. Jan Kalyan Samiti, Sheopuri Ghaziabad and others, JT 1996 (1) SC 568:1996 (1) JCLR 571 (SC), wherein vide para 5 of the judgment, con sidering the effect of the notifications is sued under Section 17 of the Act their lordships of apex Court reached to the conclusion that on expiry of 15 days statutory period from the date of Notice under Section 9 of the Act, the Govern ment is entitled to take possession of the Land and by operation of sub- section (2) of Section 17 though award has not been made under Section 11, the land stands vested in the Government free from all encumbrances. In the State of U. P. an amendment has been made by U. P. Amendment Act Repeal 32 of 1990 and the Land Acquisition (Validation) Act, 1991 (U. P. Act 5 of 1991), which had come into force w. e. f. September 24, 1984 envisaging insertion of a Proviso to sub-section (4) of Section 17 which reads as under: "in Section 17 of the Land Acquisition Act, 1894, as amended in its application to Uttar Pradesh, hereinafter referred to as the Principal Act, in sub-section (4) the following proviso shall be inserted at the end and shall be deemed to have been inserted on September 24, 1984, namely, provided that where in the case of any land, notification under Section 4, sub-section (1) has been published in the official Gazette on or after September 24, 1984 but before January 11, 1989 and the appropriate Government has under this sub-section directed that the provisions of Section 6-A shall not apply, a dec laration under Section 6 in respect of the land may be made either simultaneously with or at any time after the publication in the official Gazette of the notification under Section 4, sub section (1 ). " 4. The same view has been reiterated in Sanjeev Nagar Co-operative Society v. Mohd. Wahab, JT (1996) 2 SC 173 by the apex Court. 5. Thus, in the matters of taking pos session under the Act, deeming fiction ap plies. " 4. The same view has been reiterated in Sanjeev Nagar Co-operative Society v. Mohd. Wahab, JT (1996) 2 SC 173 by the apex Court. 5. Thus, in the matters of taking pos session under the Act, deeming fiction ap plies. In this regard this legal position can not be lost sight of that when fact is to be deemed by fiction of law, as interpreted by the apex Court in Ghaziabad Development Authority case (supra), its consequences and incidents are also to be deemed i. e. what follows from the deemed fact is also to be deemed. Accordingly if the posses sion is deemed to have been taken over, the petitioners are to be deemed to have been divested of the possession, consequently nothing survives in the notification for challenge. At the most the petitioner may raise their claim for adequate compensa tion. 6. Thus, by deeming fiction it is con strued that the possession stands taken over to sooner the notification under Sec tion 17 read with Section 9 of the Act is issued, meaning thereby that the occupant of the land stands divested from the land. In such matters the provisions of Section 16 are not to be adhered to. Much em phasis is given that till date no possession is taken over but that is of no avail as we have already held that by deeming fiction the possession is deemed to have been taken over and further on the basis of Ghaziabad Development Authority (supra) case, the delivery of physical possession in the circumstances is not warranted in law once notification under Sections 17 and 9 is published as in such matters it would be a constructive delivery of possession. The words used in Ghaziabad Development Authority case (supra) by operation and stands have got significant meaning at trading the doctrine of deeming fiction and the effect of a legal fiction by a deem ing clause is well- known i. e. the Legisla ture can introduce a statutory fiction and the Courts have to proceed on assumption that such state of affairs exist on the relevant date soon after the expiry of 15 days notice under Section 9 of the Act because when one is taken to an imaginary state of affairs as real he has also to im agine as real the consequences which shall flow from it unless statutorily prohibited by some provisions of the Act, No such provision is pointed out except Section 16 of the Act, which he have discussed in earlier paragraphs of this judgment. 7. Section 16 of the Act postulates that when the Collector has made the award under Section 11 of the Act he may take possession of the land which shall thereupon vest absolutely in the Govern ment free from all encumbrances. Same interpretation is given by the apex Court by using the words "by operation of law" and "stands transferred" which denotes that by operation of notification the land vested with the State, Lord Halsbury L. C. and Lord Hershell in Tunbridge Wells Cor poration v. Baird, (1896) AC 434 (F), said as follows: "that Section has nothing to do with title, it is not considering a question of title. No mat ter what the title is of the person who owns the street the section is only considering how much of the street shall vest in the urban authority. . . . . " The Section 16 of the Act has been interpreted in various decisions and it is held that Section 16 does not say that actual possession has to be necessarily delivered to the Government for acquisi tion of any land as even symbolic delivery of possession is sufficient. This appears to be justified considering the emergency clause of Section 17 where unforeseen emergency makes acquisition of the land necessary and immediate possession is needed. This appears to be justified considering the emergency clause of Section 17 where unforeseen emergency makes acquisition of the land necessary and immediate possession is needed. Considering these emergencies for acquisition of the land these two words by operation of law and stands transferred have been used by the apex Court in Ghaziabad Development Authority case (supra) and to reconcile these two words the irresistible interpreta tion would be that by operation of notifica tion issued under Section 17 read with Section 9 the land stands vested with the State. 8. This being so, once the land vests with the Government, the same cannot be withdrawn from acquisition and in such cases even Section 11-A of the Act has no application. The acquisition proceedings would not lapse on any other ground and, therefore, the ground of attack, challeng ing the validity of the notifications is not available to the petitioner. 9. Considering the emergency clause, even the non-compliance with Section 17 (3-A) of the Act regarding part-payment of compensation before taking possession, has not been held illegal in Satendra Prasad s case, (1993) 4 SCC 369 , therefore, and particularly in view of Ghaziabad Development Authority case (supra), we are of the considered opinion that the effect of two words*by operation of law and stands transferred is to obliterate the provisions of Section 16 of the Act. As such where emergency clauses of Section 17 is adhered to, the land in question after expiry of the period of 15 days from the date of notice under Section 9, vests with the State. This legal fiction is well recognized in law and the Court of law accepts it as a reality and the effect of such a legal fiction is that by operation of law, i. e. by enforcement of Section 17 read with Section 9 of the Act after lapse of 15 days, the possession is deemed to have been taken over, which indeed is symbolic and the land vests with the State. 10. In this context it may be stated that though the provisions of Section 17 (3-A) of the Act have been construed to be imperative in nature, yet the same have been interpreted by the apex Court to mean that non-compliance of Section (3-A) regarding part payment of compensa tion before taking over the possession would also not render illegal the vesting of the land. The whole idea behind it was the emergency clause of Section 17 of the Act, and therefore, if Section 17 (3-A) of the Act has been construed to be not imperative in of payment of compensation to the extent of 80% then while invoking emer gency clause of S. 17 read with Section 9of the Act, the vesting of the land with the State is automatic by operation of law and thus the land stands vested with the State. 11 It. is time Upended for In case the inspection memo was not petitioners that they have been deprived of prepared by respondent No. J and any fact the property in violation of the constitu tional mandate enshrined under Article 300-A of the Constitution but in our opinion this submission also has no force inasmuch as the petitioners have not been deprived of the property (the land in ques tion) by any executive order rather the property has been acquired in accordance with the procedure contemplated under the Act and, therefore, the question of violation of Article 300-A of the Constitu tion does not arise at all. (See AIR 1995 SC 142 , Jilubhai Nanbhai Khachar s case j. 12. In the instant case since the ir resistible conclusion arrived at by this Court is that in view of Ghaziahad Development Authority case (supra) the land stands automatically vested with the State by operation of notifications under Section 17 read with Section 9 of the Act, hence if interim stay is granted by this Court subsequent to automatic vesting of the land with the State, such interim stay would automatically becomes in fructuous and therefore, interim stay order dated 2-8-96 has automatically become in fructuous. 13. In view of the above mentioned legal position as settled by the Apex Court, no case for interference by this Court is made out, consequently writ petition is dismissed. Petition dismissed. .