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2003 DIGILAW 368 (HP)

ISHWAR DASS v. STATE OF H. P.

2003-12-11

R.L.KHURANA

body2003
JUDGMENT R. L. Khurana, J.: - By virtue of the present petition preferred under Articles 226/227 Constitution of India, the petitioners have approached this Court for the issuance of an appropriate writ, order or direction for: (a) quashing the notification dated 16.7.1992 (Annexure P-1) issued under Section 4 of the Land Acquisition Act, 1894 (for short, the Act), notification dated 8.10.1992 (Annexure P-4) issued under Section 17(4) of the Act and the award dated 22.3.1996 (Annexure P-12) made under Section 11 of the Act by the Collector Land Acquisition; and (b) to direct the respondents to deliver back the possession of the land illegally taken in pursuance of the notifications and award referred to above. 2. Land measuring 0-63-76 Hectares comprising of Khasra Nos. 544,544/1 and 544/2 in Mohal Dhawal, Mauza Dharamshala, Tehsil Dharamshala of District Kangra, belonging to the petitioners was notified for acquisition under Section 4 of the Act on 16.7.1992 vide notification Annexure P-1 for a public purpose, namely setting up of T.V. Relay Centre. After the issuance of the said notification, vide communication dated 6.8.1992 (Annexure P-2) the petitioners were called for negotiations in order to ensure for expeditious transfer of the land instead of undergoing the process of acquisition in view of the urgent purpose for which the land was required. The petitioners on 11.8.1992 through Annexure P-3 conveyed their unwillingness to part with and transfer the land. They also requested that their land be not acquired since they were in the process of developing the same as a tourist resort by constructing tourist huts therein. Since private negotiations did not materialise and the land was urgently required, the respondents by resorting to the powers in case of urgency under Section 17 of the Act issued a notification under Section 17(4) of the Act on 8.10.1992 (Annexure P-4) dispensing with the applicability of the provisions of Section 5-A of the Act. 3. On 19.5.1993, a writ petition, being CWP No. 570 of 1993, came to be filed by Shri Ramesh Thakur and Dr. Anupam Khanna, residents of Dharamshala, as public interest litigation for a direction to the respondents to choose another site for the construction of T.V. Relay Centre. 3. On 19.5.1993, a writ petition, being CWP No. 570 of 1993, came to be filed by Shri Ramesh Thakur and Dr. Anupam Khanna, residents of Dharamshala, as public interest litigation for a direction to the respondents to choose another site for the construction of T.V. Relay Centre. It was pleaded that the site in question was not appropriate for the purpose and that setting up of the T.V. Relay Centre may cause interference to the Central recording Centre which was coming up in the neighbourhood. 4. The said writ petition was disposed of by a Division Bench of this court on 5.1.1995 by observing as under:- The report of Shri G.D. Gupta, Director, Ministry of Science and Technology, Government of India, has been perused. From which it appears that the averment made by the Principal Investigator of Wadia Institution of Himalayan Geology has been technically examined by the Ministry of Information & Broadcasting. The expert view suggests that there is not likely to be any interference between the signals of the TV transmitter and Seismic Telemetered system as the two systems operate on two different frequency bands. He has further stated that the issue of.the construction of TV Transmitter can be overcome with proper technical inputs and exercise of proper care and attention during different stages of the Project. This information, in our view sufficiently meets the public purpose sought to be raised in this writ petition. The opinion of the Director of Department of Science and Technology, which is based on consideration of the matter by experts, has to be accepted. Under the circumstances, we are satisfied that there would be no interference between the signals of the TV Transmitter and Seismic Telemetered system. Inspite of it, we will direct that proper technical inputs and exercise of proper care and attention during different stages of the Project may be taken. The Director will himself continue monitoring the matter and if there be difficult informing this court from time to time. In view of this, it is not considered necessary to deal the establishment of high powered TV Transmitter in the area. In view of the observations aforesaid, the petition stands disposed of." 5. The Director will himself continue monitoring the matter and if there be difficult informing this court from time to time. In view of this, it is not considered necessary to deal the establishment of high powered TV Transmitter in the area. In view of the observations aforesaid, the petition stands disposed of." 5. When the above mentioned writ petition was still pending, a writ petition, being CWP No. 1682 of 1993 came to be filed by the present petitioners and their mother for quashing of the notifications dated 16.7.1992 (Annexure P-1) and dated 8.10.1992 (Annexure P-4) issued respectively under Section 4 and 17(4) of the Act and further for directing the respondents to denotify their land from acquisition. Besides the grounds of unsuitability of the land for setting up the T.V. Relay Centre, as were taken in CWP No. 570 of 1993, notifications dated 16.7.1992 and 8.10.1992 were assailed on the following grounds:- (a) That no enquiry having been done under Section 5-A and 6 of the Act and the petitioners not having been heard before the issuance of notification under Section 17 of the Act or dispensing with the enquiry under Section 5-A of the Act, and there being no urgency, the continuation of acquisition proceedings and issuance of notice under Section 9 of the Act was illegally and arbitrary; (b) That the respondents had acted in an arbitrary manner and in hot haste by invoking the emergency powers and dispensing with the inquiry under Section 17 and 5-A of the Act; (c) That the notifications Were against the principle of natural justice and vitally affected the rights of the petitioners who were being deprived of their properties and livelihood without any authority of law; and (d) That there has been a complete non-compliance of the mandatory provisions of the Act in issuing the notification under Section 4, dispensing with the enquiry under Section 5-A and not issuing notification under Section 6 and proceeding to acquire the land under Section 17 of the Act when there was no case of urgency having been made out. 6. This writ petition filed by the petitioners was also disposed of by a Division Bench of this Court on 5.1.1995 alongwith CWP No. 570 of 1993 for the reasons stated in the said writ petition. 7. 6. This writ petition filed by the petitioners was also disposed of by a Division Bench of this Court on 5.1.1995 alongwith CWP No. 570 of 1993 for the reasons stated in the said writ petition. 7. Again on 2.4.1996 the petitioners and their mother preferred another writ petition, being CWP No. 500 of 1996, inter alia, praying for the quashing of notifications dated 16.7.1992 (Annexure P-1) issued under Section 4 of the Act, and dated 8.10.1992 (Annexure P-4) issued under Section 17(4) of the Act and for restraining the respondents from taking possession of the land in pursuance of the notification Annexure P-4. In assailing these notifications, apart from the grounds which were taken by them earlier in CWP No: 1682 of 1993, the petitioners pleaded that inspite of issuance of notification under Section 17 of the Act, the respondents had failed to take possession of the land within the stipulated period nor any compensation was paid/tendered to them. It was also averred that inspite of four years having elapsed after the issuance of notifications Annexures P-1 and P-4, the award had not been made. 8. This writ petition was dismissed by a Division Bench of this Court on 30.6.1996. It was observed:- "Already the petitioners had filed a Civil Writ Petition No. 570/93, in which they had challenged the validity of Notifications Annexures P-1 and P-4. That writ petition was dismissed on 5.1.1995. Now, the petitioners have claimed the same relief on the footing that the award has not yet been passed and the declaration under Section 6 has not been issued. It is stated by the respondents in the reply that the award is in the process of being passed. If it is so, it is open to the petitioners to challenge the validity of the award after it is passed on the grounds as available to them under the law. This writ petition is dismissed with the above observations." 9. In the meanwhile, the Collector, Land Acquisition, made the award on 22.3.1996 and in terms of the first proviso to Section 11 of the Act, forwarded the same to the State Government for approval through the Collector, District Kangra. This writ petition is dismissed with the above observations." 9. In the meanwhile, the Collector, Land Acquisition, made the award on 22.3.1996 and in terms of the first proviso to Section 11 of the Act, forwarded the same to the State Government for approval through the Collector, District Kangra. The State Government conveyed its approval to the award on 23.6.1998 vide Annexure P-13 to the Collector, District Kangra, who in turn on 20.7.1998 vide Annexure P-4 conveyed such approval to the Collector, Land Acquisition and the award came to be announced on 5.2.1999. On the same day, the petitioners also approached the Collector, Land Acquisition, under Section 18 of the Act for making a reference to the Court for determination of the market value of the land acquired. Copy of the petition made under Section 18 of the Act by the petitioners is Annexure P-18. 10. The present writ petition came to be filed on 20.9.1999 assailing the notifications, Annexures P-1 and P-4 issued respectively under Section 4 and Section 17(4) of the Act and the award dated 22.3.1996, Annexure P-12, which was announced on 5.2.1999 by the Collector, Land Acquisition. 11. At the very out set it may be stated that the present writ petition insofar as it relates to the challenge to the notifications Annexures P-1 and P-4 is concerned is not competent and maintainable in view of the dismissal of the earlier two writ petitions, CWP No. 1682 of 1993 and CWP No. 500 of 1996 filed by the petitioners. Admittedly, in such writ petitions the petitioners had laid challenge to the notifications. Annexure P-1 and P-4. The grounds raised in the earlier two writ petitions and in the present writ petition assailing the notifications Annexures P-1 and P-2 are the same. In view of the dismissal of the earlier writ petitions, without any leave or liberty reserved to the petitioners for assailing the notifications Annexures P-1 and P-4, the petitioners are estopped from reagitating the validity or otherwise of these notifications and the dismissal of the earlier writ petitions would only mean that the validity of the notifications Annexures P-1 and P-4 stood upheld by the Division Bench of this Court. 12. 12. Coming to the challenge laid to the award, Annexure P-12, made by the Collector, Land Acquisition, under Section 11 of the Act, the same has been assailed by the petitioners on the following grounds: (j) the award is bad since the respondents had failed to take possession of the land under Section 17 of the Act; (ii) the possession of the land was taken illegally, that is, without making payment of the estimated compensation and as such the entire acquisition proceedings have been rendered bad and the award is invalid; and (iii) the award is bad since the same has not been made within the time prescribed under Section 11-A of the Act. 13. I have heard the learned Counsel for the parties and have also gone through the record of the case. Ground No. (i) Section 17(1) of the Act provides: "In cases of urgency, whenever the (appropriate Government) so directs, the Collector, though no such award has been made, may, on the expiration of fifteen days from the publication of the notice mentioned in Section 9, sub-section (1) (take possession of any land needed for public purpose). Such land shall thereupon [vest absolutely in the (Government)], free from all encumbrances." 14. A bare perusal of the above provisions shows that the only limitation prescribed therein is that possession of the land can be taken only after the expiry of a period of fifteen days from the date of publication of the notice mentioned in Section 9(1) of the Act. In other words, no possession can be taken before the expiry of the period of fifteen days from the date of publication of a notice under Section 9(1) of the Act. No period has been prescribed within which possession can be taken after the expiry of the requisite period of the above said fifteen days. 15. There is no denying that the possession of the land has been taken by the respondents, though there is nothing on record to suggest as to when such possession was taken. The respondents in para 10 of their reply-affidavit have pleaded : "The possession of the land of khasra No. 544/1, 544/2 and 544, kita 3, area measuring 0-63-76 Hects. has been handed over to the Doordarshan Department through their representative Shri V.K. Gupta......" 16. The respondents in para 10 of their reply-affidavit have pleaded : "The possession of the land of khasra No. 544/1, 544/2 and 544, kita 3, area measuring 0-63-76 Hects. has been handed over to the Doordarshan Department through their representative Shri V.K. Gupta......" 16. One of the relief sought by the petitioners is that the respondents be directed to deliver back the possession of the land to the petitioners. On the face of such relief, it is admitted case of the petitioners that the possession of the land has been taken over by the respondents. • 17. In Raj and Sandeeps Limited v. The Sate of Punjab, 1993 PLJ 12 the possession of the land was not taken for a period of more than one year after the issuance of the notice under Section 9(1) of the Act. It was held :- ".........Mere delay in taking possession or issuing notice under Section 9(1) does not per se lead to the conclusion that there was a colorable exercise of power while acquiring the land. If the acquisition is otherwise valid, which we find it is, and the declaration under Section 6 of the Act has become final, the mere fact that the Government did not take possession of the land sought to be acquired for a period of more than one year does not make the acquisition proceedings illegal or invalid. It may be that after invoking the power under Section 17 of the Act, the proceedings for acquisition dragged on and the possession for some reason was not taken........" , 18. In Babu Singh and others v. Union of India and others, AIR 1979 SC 1713, even though the Government had invoked the powers under Section 17 of the Act, possession of the land was not taken for a period of six years after the publication of the notice under Section 9 of the Act. A contention was raised that on the failure of the Government to take possession after complying with the provisions under Section 9 of the Act, would render the acquisition illegal and invalid. A contention was raised that on the failure of the Government to take possession after complying with the provisions under Section 9 of the Act, would render the acquisition illegal and invalid. Repelling the contention, the Honble Supreme Court held: "The last contention is that even though the Government invoked powers under Section 17 claiming that in view of the emergency, the urgency clause must be applied and thereby deprived the appellants of their statutory right to put forth the objection against the proposed acquisition, yet the Government did not take possession of the land involved in the dispute for a period of six years and, therefore, the power to take possession after complying with Section 9 got exhausted and on this account the acquisition itself must be declared illegal and invalid. We have not been able to appreciate this submission. If the impugned notifications are valid and the declaration made under Section 6 has become final and an award under Section 12 is made even if possession is not taken, we fail to appreciate how thereby the notification under Section 6 would become invalid......." 19. In the present case, it is Significant to note that no challenge has been laid to the declaration made under Section 6 of the Act by the petitioners. Therefore, once such declaration is admitted to be valid, the mere fact that there has been delay in taking possession of the land would neither vitiate the acquisition proceedings nor the award. Ground No. (ii). Sub-section (3-A) of Section 17 of the Act provides : "Before taking possession of any land under sub-section (1) or sub-section (2), the Collector shall, without prejudice to the provisions of sub-section (3), - (a) tender payment of eighty per centum of the compensation for such land as estimated by him to the persons interested entitled thereto, and (b) pay it to them, unless prevented by some one on more of the contingencies mentioned in Section 31, sub-section (2), and where the, Collector is so prevented, the provisions of Section 31, sub-section (2), (except the second proviso thereto) shall apply as they apply to the payment of compensation under that Section." 20. It has been contended on behalf of the petitioners that since 80% of the estimated compensation was not paid to them at the time of taking possession of the land, as required under Section 17(3A) of the act, the possession taken is illegal and the entire acquisition proceedings stood vitiated. 21. In Satendra Prasad Jain and others v. State of U.P. & Ors., AIR 1993 SC 2517, the possession of the land was taken without paying the requisite 80% of the estimated compensation. Subsequently, the Government decided to exclude some land from acquisition due to shortage of funds and also on the ground that the proposed site for setting up a "Mandi" was for away. A writ petition was filed for directing the State of U.P., Collector Meerutand Krishi Utpandan Mandi Samiti, the respondents therein by a writ of mandamus to make and publish the award. The writ petition was dismissed by the High Court. The High Court noted that it was the petitioners own case that more than two years had elapsed since the date of issue of notification under Section 4 of the Act. In view of this and by reason of the provisions of Section 11-A of the Act, the entire acquisition proceedings had lapsed. It was also noted that the petitioners had relied upon the fact that even in the absence of an award, possession of the land had been taken. It was held by the High Court that by the mere fact that possession had been taken in pursuance of Section 17(1) of the Act, the necessity of giving an award, an amended by Section 11-A of the Act, within a period of two years from the date of publication of the notification under Section 4 of the Act could not be dispensed with. 22. In appeal before the Honble Supreme Court a contention was raised on behalf of the respondents therein that since 80% of the estimated compensation was not paid as required under Section 17(3A) of the Act, the taking of possession of the land was illegal. Repelling the contention, it was held that once the possession of the land is taken under Section 17(1) of the Act, the land stood vested in the State and that the State is bound to pay the compensation for such acquired land to the owners and to proceed to make an award therefore. 23. Repelling the contention, it was held that once the possession of the land is taken under Section 17(1) of the Act, the land stood vested in the State and that the State is bound to pay the compensation for such acquired land to the owners and to proceed to make an award therefore. 23. The Honble Supreme Court in Lt. Governor of H.P. and another v. Sri Avinash Sharma, 1970 SC 1576 and in Rajasthan Housing Board and others v. Shri Kishan and others, 1993(2) SCC 84 has held that once the State Government has taken possession of the land pursuant to a notification under Section 17(1) of the Act, such land vests in the Government and thereafter the Government cannot withdraw from acquisition in exercise of the powers under Section 48 of the Act. 24. The petitioners were entitled to compensation under Section 17(3A) of the Act on the date on which possession of the land was taken. Since there is no question of Government withdrawing from acquisition after assuming possession of the land, the only remedy available to the petitioners was to have proceedings for acquisition completed and to be paid compensation due as also advance compensation envisaged by Section 17(3A) of the Act. 25. The acquisition proceedings concluded on the making and publishing of the award Annexure P-12. The record shows that inspite of having been repeatedly called upon, the petitioners did not come forward to receive the amount of compensation. 26. The acquisition proceedings cannot be held to have been rendered bad and invalid. Question No. (iii) 27. Section 11-A of the Act provides that the Collector shall make an award under Section 11 within a period of two years from the date of publication of the declaration and if no award is made within that period, the entire proceedings for the acquisition of the land shall lapse. 28. Explanation to the section further provides that in computing the period of two years, the period, during which any action or proceeding to be taken in pursuance of the said declaration is stayed by an order of the Court, shall be excluded. 29. 28. Explanation to the section further provides that in computing the period of two years, the period, during which any action or proceeding to be taken in pursuance of the said declaration is stayed by an order of the Court, shall be excluded. 29. In contending that the award Annexure-P12 is bad having not been made within the period of two years as stipulated under Section 11-A of the Act, the petitioners have pleaded in para11 of their petition as under :- ".......It is submitted that the notification under Section 4 was issued on 16.7.1992 and under Sections 4 and 17 issued on 8.10.1992, though stay was granted in CWP No. 570/93 on 20.5.1993 but the same was vacated on 5.1.1995, similarly in CWP No. 1682/93 stay was granted on 20.12.1993, the same was vacated in that case also on 5.1.1995. Thereafter in CWP No. 500/96 Rukmani Devi v. State, stay was granted on 10.4.1996 and the same was vacated on 30.9.1996. The award though prepared by the Collector, Land Acquisition on 22.3.1996, got the approval of the Government on 30.6.1998 but was actually announced on 5.2.1999. As such a period of 3 years 7 months had lapsed after excluding the period of stay till the grant of approval and the award by the Government and 4 years and 3 months upto the date of announcing of the award on 2.9.1999. As such the validity and force of the notification P-1 and P-4 had expired and no award could be made after the expiry of the limitation contemplated under the Land Acquisition Act. The award, therefore, is nonest, illegal and without jurisdiction. The entire action in starting the acquisition proceedings or continuation of the same are mala fide, arbitrary and whimsical on the part of the respondent to deprive of the petitioner and the valuable property and the action is not sustainable in law." 30. A reading of the above pleadings shows that the petitioners are reckoning the period of two years from the date of notification issued under Section 4 or Section 17(4) of the Act, which position is not correct. 31. Under Section 11-A of the Act, quoted above, the Collector is obliged to make an award within a period of two years from the date of publication of declaration under Section 6 of the Act. 32. 31. Under Section 11-A of the Act, quoted above, the Collector is obliged to make an award within a period of two years from the date of publication of declaration under Section 6 of the Act. 32. In the present case there are neither pleadings nor anything else to show as to when declaration under Section 6 of the Act was made. It is not the case of the petitioners that no declaration under Section 6 has come to be made. In the absence of material as to the date of publication of declaration under Section 6 of the Act, it cannot be held that the award Annexure-12 has not been made within the period stipulated under Section 11-A of the Act. 33. Besides, in view of the fact that in the present case resort was taken to urgency clause under Section 17 of the Act, therefore, provisions of Section 11-A of the Act would not be applicable. 34. In Satendra Prasad Jain and others v. State of U.P. & Ors. (supra) while dealing with a similar situation it has been held by the Honble Supreme Court: "Ordinarily, the Government can take possession of the land proposed to be acquired only after an award of compensation in respect thereof has been made under Section 11. Upon the taking of possession the land vests in the Government, that is }o say, the owner of the land loses to the Government the title to it. This is what Section 16 states. The provisions of Section 11-A are intended to benefit the land owner and ensure that the award is made within a period of two years from the date of the Section 6 declaration. In the ordinary case, therefore, when Government fails to make an award within two years of the declaration under Section 6, the land has still not vested in the Government and its title remains with the owner, the acquisition proceedings are still pending and, by virtue of the provisions of Section 11-A, lapse. When Section 17(1) is applied by reason of urgency, Government takes possession of the land prior to the making of the award under Section 11 and thereupon the owner is divested of the title to the land which is vested in the Government. Section 17(1) states so in unmistakable terms. When Section 17(1) is applied by reason of urgency, Government takes possession of the land prior to the making of the award under Section 11 and thereupon the owner is divested of the title to the land which is vested in the Government. Section 17(1) states so in unmistakable terms. Clearly, Section 11-A can have no application to cases of acquisitions under Section (sic) because the lands have already vested in the Government and there is no provision in the said Act by which land statutorily vested in the Government can revert to the owner." 35. The above ratio was again reiterated in Awadh Bihari Yadav and others v. State of Bihar and others, AIR 1996 SC 122. 36 Since the provisions of Section 11-A of the Act are not applicable, no fault can be found with the award Annexure-P12 on the ground of delay in making the same. 37. As a result of the foregoing reasons, the present writ petition fails and the same is accordingly dismissed leaving the parties to bear their own costs. -