Hetram and Others vs State of Chhattisgarh and Others

Hon''ble Shri Satish K Agnihotri, J.—By this petition, the petitioners seek to quash the entire land acquisition proceedings, notifications issued under the provisions of Sections 4 & 6 of the Land Acquisition Act, 1894 (for short "the Act, 1894") as well as the award dated 29-9-2009 (Annexure - P/2 page 82 of the paper book).

The facts, in brief, as projected by the petitioners, are that the petitioners are residents of village Barmuda, Tahsil & District Raigarh. The State Government had proposed to issue a notification u/s 4(1) of the Act, 1894 for the acquisition of lands belonging to the petitioners for construction of canal under the Kelo Project, according to the petitioners, the said notification dated 24-2-2007 was published in the daily newspapers on 3-3-2007 (Annexure - P/1 page 18 of the paper book). The petitioners submitted their objections on 23-3-2007 to the said notification. The main objection of the petitioners was that the rakba of the land, trees, tube wells, houses constructed over the land in dispute have not been properly assessed for determining the compensation and every thing has been done by the respondent authorities without making spot inspection. The Sub Divisional Officer without considering the objections raised by the petitioners in its letter and spirit, rejected the same and forwarded the matter for its declaration under the provisions of Section 6 of the Act, 1894. Thereafter, on 24-8-2007, Section 6 declaration was issued and the same was published in the newspaper on 4-9-2007 (Annexure - P/1 page 19 of the petition). Subsequently, the award was passed on 29-9- 2009 after lapse of more than two years from the date of publication of declaration u/s 6 of the Act, 1894 (Annexure - P/2 page 82 of the petition) in an illegal and arbitrary manner. Thus, this petition.

Ms. Pandey, learned counsel appearing for the petitioners, would submit that as per the provisions of the Act, 1894 the Collector alone is competent to act as Land Acquisition Officer whereas in the instant case, the land acquisition proceedings were drawn by the Sub Divisional Officer. Ms. Pandey would further submit that the impugned award was passed after expiry of two years from the date of publication of declaration u/s 6 of the Act, 1894. Section 11A of the Act, 1894 clearly provides that if no award is made within a period of two years from the date of publication of the Section 6 declaration, the entire proceeding for the acquisition of the land shall lapse. Thus, the impugned action of the respondent authorities is not at all sustainable in the eyes of law. The amount of compensation is on lower side in comparison to the present scenario and increasing value of the lands. Ms. Pandey would next submit that even while determining the compensation, the respondent authorities have not properly assessed the lands in dispute by making spot inspection. Ms. Pandey would submit that even the respondent authorities without waiting till passing of the award had started the construction work on the land in dispute. The respondent authorities have acted with mala fide intention, as they have not at all followed the mandatory provisions of the Act, 1894 in its letter and spirit.

On the other hand, Shri Murthy, learned Dy. Adv. General appearing for the State, would submit that after passing of the award by the Land Acquisition Officer, the petitioners have no right to challenge the notifications issued under Sections 4 & 6 of the Act, 1894. In respect of grievance of the petitioners that the trees, tube wells, houses, etc. have not been properly assessed, Shri Murthy would submit that the petitioners may file an application under the provisions of Section 18 of the Act, 1894 for payment of just compensation before the District Judge. The date of publication of the declaration, as contemplated under sub-section (2) of Section 6 of the Act, 1894 was 30-9-2007 and the award was passed on 29-9- 2009 i.e. well within the stipulated period of two yeaRs.

Shri Murthy would next submit that only after passing of the award, the possession of the land in dispute was taken over by the State Government and thereafter, on 29-4- 2010 the land in dispute was given to the concerned agency for construction works. However, after passing of the interim order by this Court on 16-6-2010, the activities in respect of construction works have been stopped on 18-6- 2010 and till that time 60% works have been completed and an amount of Rs. 76.48 lacs (approx.) has already been paid to the contractor. There is no substance in the petition and, as such, the same may be dismissed.

I have heard learned counsel appearing for the parties, perused the pleadings and the document appended thereto.

Indisputably, Section 4 notification dated 24-2-2007 was published in the newspaper on 3-3-2007. Thereafter, objection was filed by the petitioners u/s 5A of the Act, 1894 on 23-3-2007. The Land Acquisition Officer, it appears, having considered the objections, issued the declaration u/s 6 on 24-8-2007, which was published on 4-9-2009 in the newspaper. Thereafter, the Land Acquisition Officer proceeded further with the land acquisition proceedings and passed the award dated 29-9-2009, which was passed after lapse of about 2 years 25 days. Thus, the requirement of Section 11A of the Act, 1894, that if the award is not passed within a period of two years, the proceedings shall lapse, prima facie, appears to be applicable.

Section 6 of the Act, 1894 reads as under :

Declaration that land is required for a public purpose.-(1) Subject to the provisions of'' Part VII of this Act, when the appropriate Government is satisfied, after considering the report, if any, made u/s 5-A, sub-section (2), that any particular land is needed for a public purpose, or for a Company, a declaration shall be made to that effect under the signature of a Secretary to such Government or of some officer duly authorized to certify its orders, and different declarations may be made from time to time in respect of different parcels of any land covered by the same notification u/s 4, sub section (1), irrespective of whether one report or different reports has or have been made (wherever required) u/s 5-A, sub-section (2):

Provided that no declaration in respect of any particular land covered by a notification u/s 4, sub-section (1),

(i) published after the commencement of the Land Acquisition (Amendment and Validation) Ordinance, 1967 (1 of 1967), but before the commencement of the Land Acquisition (Amendment) Act, 1984, shall he made after the expiry of three years front the date of the publication of the notification; or

(ii) published after the commencement of the Land Acquisition (Amendment) Act, 1984, shall be made after the expiry of one year from the date of the publication of the notification]:

Provided further that no such declaration shall be made unless the compensation to be awarded for such property is to be paid by a Company, or wholly or partly out of public revenues or some fund controlled or managed by a local authority.

[Explanation 1.-In computing any of the periods referred to in the first proviso, the period during which any action or proceeding to be taken in pursuance of the notification issued u/s 4, sub-section (1), is stayed by an order of a Court shall be excluded.

Explanation 2.-Where the compensation to be awarded for such property is to he paid out of the funds of a corporation owned or controlled by the State, such compensation shall be deemed to be compensation paid out of public revenues.]

(2)[Every declaration] shall be published in the Official Gazette, 17[and in two daily newspapers circulating in the locality in which the land is situate of which at least one, shall be in the regional language, and the Collector shall cause public notice of the substance of such declaration to be given at convenient places in the said locality (the last of the dates of such publication and the giving of such public notice, being hereinafter referred to as the date of publication of the declaration), and such declaration shall state] the district or other territorial division in which the land is situate, the purpose for which it is needed, its approximate area, and, where a plan shall have been made of the land, the place where such plan may be inspected.

(3) The said declaration shall be conclusive evidence that the land is needed for a public purpose or for a Company, as the case may be; and, after making such declaration, the appropriate Government may acquire the land in a manner hereinafter appearing.

It is well settled that for the purpose of calculating the limitation prescribed under clause (ii) of the first proviso to Section 6(1), the last date of the publication in the series is not the relevant date, which should be taken into account, but the first date of publication.

In Eugenio Misquita and Others v. State of Goa and Others, the Supreme Court observed as under:

The above view of this Court lends support to the view that for the purpose of calculating the limitation prescribed under clause (ii) of the first proviso to Section 6(1), it is not the last of the publication in the series that should be taken into account, but the publication that was made in the first instance u/s 6.

In the light of the law laid down by this Court, we have no hesitation to hold that the declaration published u/s 6 of the Act was well within one year and the challenge to the same has been rightly rejected by the High Court. However, the view taken in the judgment of the High Court under appeal that the relevant date for reckoning the period of limitation will be the date of making of the declaration u/s 6, may not be correct. As held in Krishi Utpadan Mandi Samiti case2 mere making of declaration is not enough. The making of declaration u/s 6 is complete for the purpose of clauses (i) and (ii) of the first proviso to Section 6(1) when it is published in the Official Gazette.

The ratio, as aforestated, was reiterated by the Supreme Court in Dahyabhai Ranchhoddas Dhobi and Another v. State of Gujarat and OtheRs.

No party has pointed out the date when Section 6 declaration was published in the official gazette. However, on perusal of the documents, it appears that the publication in the newspaper was made on 4-9-2007. Thus, the date of publication in the newspaper is the relevant date to calculate the limitation period. Subsequently, affixing of declaration at a public place on 30-9-2007, as pleaded by the learned State counsel, is not relevant for the purpose of calculation of limitation.

There is another line of cases, where urgency clause has been invoked u/s 17(1) of the Act, 1894 and possession of the land needed for public purpose is taken on the expiration of fifteen days from the publication of the notice mentioned in Section 9, sub-section (1) before the award is passed. It has been held that provisions of Section 11A, which provides to make the award within a period of two years from the date of publication of declaration, is not applicable.

Section 11A of the Act, 1894 reads as under :

11A. Period within which an award shall be made.-(1) The Collector shall make an award u/s 11 within a period of two years from the date of the publication of the declaration and if no award is made within that period, the entire proceedings for the acquisition of the land shall lapse:

Provided that in a case where the said declaration has been published before the commencement of the Land Acquisition (Amendment) Act, 1984, the award shall he made within a period of two years from such commencement.

Explanation.-In computing the period of two years referred to in this section, the period during which any action or proceeding to be taken in pursuance of the said declaration is stayed by an order of a Court shall be excluded.

In Satendra Prasad Jain and Others v. State of U.P. and Others, the Supreme Court observed as under:

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 u/s 11. Upon the taking of possession the land vests in the Government, that is to 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 landowner 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 u/s 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. Clearly, Section 11-A can have no application to cases of acquisitions u/s 17 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.

The aforesaid view was reiterated by the Supreme Court in Awadh Bihari Yadav and Others v. State of Bihar and Others, Pratap and Another v. State of Rajasthan and Others, Parsinni (dead) by LRs and Others v. Sukhi and Others, Allahabad Development Authority v. Nasiruzzaman and Others and Govt. of A.P. and Others v. Kollutla Obi Reddy and OtheRs.

The Supreme Court in a latest decision in Banda Development Authority, Banda v. Moti Lal Agarwal and Others, wherein the State Government acquired the land for residential scheme of Banda Development Authority by Section 6(1) declaration read with Section 17(1) of the Act, 1894 published on 7-9-1999, and the award was passed on 14-6-2002. The possession of the land was taken earlier by the State and the possession was delivered to Banda Development Authority on 30-6-2011, held that Section 11A could not be applicable, as the possession was taken u/s 17(1) of the Act, 1894.

The Supreme Court in Om Prakash and another v. State of U.P. and Others, held that once the possession is taken, even the Government cannot withdraw from the acquisition u/s 48 of the Act, 1894.

In Mandir Shree Sita Ramji alias Shree Sita Ram Bhandar v. Land Acquisition Collector and others, the Supreme Court observed as under:

Even otherwise, we have seen the scheme sought to be relied upon. We find from the scheme that it only applies in respect of persons/agencies who own and possess the land. In this case possession of the land had already been taken. The scheme also categorically states that the scheme would not take away the rights of the Delhi Development Authority to acquire land for development of Delhi. Thus the scheme was not applicable to lands of the Appellants. Even u/s 48 of the Land Acquisition Act once possession is taken the Government cannot withdraw from the acquisition.

Further, in the mater of Bangalore Development Authority and others v. R. Hanumaiah and others, the Supreme Court observed in paras 44 and 46 as under:

This Court in Lt. Governor of H.P. v. Avinash Sharma, has held in para 6 as under (SCC p.151).

Power to cancel a notification for compulsory acquisition is, it is true, not affected by Section 48 of the Act; by a notification u/s 21 of the General Clauses Act, the Government may cancel or rescind the notification issued under Sections 4 and 6 of the Land Acquisition Act. But the power u/s 21 of the General Clauses Act cannot be exercised after the land statutorily vests in the State Government.

It was concluded in para 8 that (SCC P.152).

..It is clearly implicit in the observations that after possession has been taken pursuant to a notification u/s 17(1) the land is vested in the Government, and the notification cannot be cancelled u/s 21 of the General Clauses Act, nor can the notification be withdrawn in exercise of the powers u/s 48 of the Land Acquisition Act. Any other view would enable the State Government to circumvent the specific provision by relying upon a general power. When possession of the land is taken u/s 17(1), the land vests in the Government. There is no provision by which land statutorily vested in the Government reverts to the original owner by mere cancellation of the notification.

The possession of the land in question was taken in the year 1966 after the passing of the award by the Land Acquisition Officer. Thereafter, the land vested in the Government which was then transferred to CITB, predecessor- in-interest of the appellant. After the vesting of the land and taking possession thereof, the notification for acquiring the land could not be withdrawn or cancelled in exercise of powers u/s 48 of the Land Acquisition Act. Power u/s 21 of the General Clauses Act cannot be exercised after vesting of the land statutorily in the State Government.

In Satendra Prasad Jain (supra), it has been clarified that the provisions of Section 11A are intended to benefit the landowner 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 u/s 6, the land has still not vested in the Government, except in case of taking over possession of the land u/s 17(1).

Case of the respondents is that after the award was passed, possession of the land in dispute was taken over and the same vested in the State Government, free from all encumbrances under the provisions of Section 16 of the Act, 1894. Thereafter, the land in dispute was handed over to the constructing agency for construction of canal under the Kelo Project.

The right of the owner of the petitioners continues till the possession of the same is taken over by the State Government. If the award is passed after a period of two years and the State is allowed to take possession of the land in dispute u/s 16 of the Act, 1894, before questioning the validity of the acquisition proceedings, the proceeding u/s 11A of the Act, 1894, may not lapse. Thus, once possession has been taken over and consequently the land vested absolutely in the State Government, free from all encumbrances, the right and title of the owner stand transferred to the State Government. In such a situation, Section 11A, which provides for lapse of entire proceedings, if the award is not passed within a period of two years from the date of declaration of Section 6 notification, could not be made applicable.

In the case on hand, the award was passed on 29-9- 2009 and the petitioners allowed the State to take over possession free from all encumbrances u/s 16 and thereafter, the land was handed over to the constructing agency on 29-4-2010 before the instant writ petition seeking quashment of the entire acquisition proceedings u/s 11 of the Act, 1894, was filed on 18-5-2010. Further proceedings, pursuant to the award dated 29-9-2009 was stayed by order dated 16- 6-2010 and accordingly, the construction works were stopped w.e.f. 18-6-2010. The constructing agency has not been impleaded as party/respondent in the instant petition. According to the learned counsel for the State, length of main canal is 28.31 kms. Except construction from km. 9.0 to km. 10.31, 60% of the work has already been done by the contractor. This Court is of the considered opinion in such facts situation of the case, the entire acquisition proceedings shall not lapse.

So far as contention of the learned counsel for the petitioners that the Collector alone is competent to pass the award u/s 11 is concerned, the same is clear from the definition of `Collector'', as provided u/s 3(c) of the Act, 1894, which reads as under:

c) the expression "Collector" means the Collector of a district, and includes a Deputy Commissioner and any officer specially appointed by the appropriate Government to perform the functions of a Collector under this Act;

The Land Acquisition Officer has been appointed to perform the functions of the Collector under provisions of the Act, 1894. No document or record has been produced by the petitioners contrary to the abovestated facts. Thus, this contention of the petitioners is rejected.

With regard to grant of less compensation, there is a provision under the Act, 1894 i.e. Section 18, which provides for reference to Court where the person has not accepted the award in respect of measurement of the land, the amount of the compensation, the persons to whom it is payable, or the apportionment of the compensation among the persons interested. The petitioners may take recourse to the said provision, in accordance with law, if so advised.

Looking from all angles, as aforestated, the petition is hereby dismissed. There shall be no order asto costs.