Shangshak Land Owners Holders Association vs The State of Manipur and Others

A.K. Patnaik, J.—In this writ application under Article 226 of the Constitution of India, the Petitioner has challenged the order of the Government of Manipur in Revenue Department declaring that the award dt. 4.3.93 of the Collector, Ukhrul shall stand cancelled with immediate effect and with a further direction to all the Respondents to pay for the land acquired within a stipulated time.

The facts as stated in the writ petition are that the Petitioner, Shangshak Land Owners/Holders Association is an Association of persons who own and hold land covered by C.S. Dag No. 1 to 165 of Shangshak situated at Shangshak Village, Ukhrul District in the State of Manipur measuring an area of 439.05 acres. The said land was acquired by the State Government of Manipur under the Land Acquisition Act, 1894 and for such acquisition a preliminary notification u/s 4 of the Act was issued on 8.7.1991. In the said notification, it was also stated that the lands were urgently needed for location of Assam Rifles and it was directed u/s 17(4) of the Act that the provisions of Section 5-A of the Act would not apply. Soon thereafter by a notification 30.10.91, the Governor of Manipur was pleased to declare u/s 6 of the Act that the land was needed for construction of location of residential buildings in respect of Assam Rides and Dy. Commissioner, Ukhrul was directed u/s 7 of the Act to lake order for acquisition of the said land. As a result of the aforesaid land acquisition proceedings, possession of the land in question has already been taken by the Government.

After the aforesaid notifications, the Collector, Ukhrul issued notices u/s 9 of the Act inviting written claims and objections from persons interested in the land, and interested persons filed claims on 3.12,1991 before the Collector, Ukhrul claiming compensation. Since the Collector did not make the award u/s 11 of the Act for sometime, the Petitioner moved this Court in Civil Rule No. 1350/92 and by an order dt. 27.11.92 the Civil Rule was disposed of with the direction that the Collector shall make the award regarding compensation of the land within the period of 3 months. Pursuant to the said direction of this Court, an inquiry was conducted by the Collector and rate of compensation for the land acquired was determined by the Collector at Rs. 65,000/- per acre plus 30% solatium as against the demand of Rs. 1,74,000/- per acre made by the Land Owners/holders and thereafter the said Collector wrote a letter dated 12.2.1993 to the Commissioner (Revenue) Govt. of Manipur, Imphal for approval of his proposed award of Rs. 65,000/- per acre, a copy of which is annexed to the writ petition as Annexure-A/2. Since no approval was received from the Government In the Revenue Department of the said proposed award and the time limit of 3 months stipulated in the order dt. 27.11.92 of this Court in C.R. No. 1350/92 had expired on 27.2.93, the Collector had no option but to make the award u/s 11 of the Act on 4.3.93 fixing compensation @ Rs. 65,000/- per acre plus 30% solatium in respect of the land. A copy of the award dt. 4.3.93 of the Collector, Land Acquisition Ukhrul is annexed to the writ petition as Annexure-A/3. But by the order/notification dated 7.10.93 the Governor of Manipur was pleased to declare that the award stood cancelled with immediate effect. It is this order of cancellation of the award dt. 4.3.93 of the Collector that is challenged by the Petitioner in this petition.

In the return filed on behalf of the Respondents 3, 2 and 3, namely, the Slate of Manipur. Secretary (Finance) and District Collector, Ukhrul, it has been stated, inter alia, that the award dt. 4.3.93 of the Collector was void inasmuch as prior approval of the State Government was not taken before the award was made us required u/s 11 of the Act and that the compensation awarded by the said award dt. 4.3.93 was on the high side and that after the cancellation of the said award by the notification dt. 7.10.93 of the Govt. a fresh award dated 28.10.93 has been made by the Collector after taking prior approval of the State Government in accordance with Section 11 of the Act. A copy of the said award dt. 28.10.93 has been annexed to the counter affidavit as Annexurc-D/3.

In reply to the averments in the counter affidavit of the Respondents - 1, 2 and 3, the Petitioner has filed a rejoinder staling, inter alia, that the Second Award dt. 20.10.93 was made by the Collector without notices to the land owners/holders, and that the said award was ante-dated and ab-initio void on account of violation of the mandatory provisions of the Act, Consistent with the aforesaid stand taken in the rejoinder, the Petitioner has also filed an application praying for quashing the Second Award dt. 20.10.93 of the Collector on the ground that no notices were served on the Land Owners/holders and interested persons before the said Second Award was made, The said application has been registered as Civil Misc. Application No. 69/94.

In the background of the aforesaid facts, Mr. R.S. Reisang, learned Counsel for the Petitioner makes 3(three) submissions:

(i) the declaration u/s 6 of the Act was made by notification dt. 30.10.91 in respect of the land in question whereas the Second Award was made after expiry of 2 years from the said notification dated 30.10.91 and the award was ante-dated to 28.10.03 only for the purpose of saving the land acquisition proceedings from Section 11-A of the Act which provides that the entire proceedings for acquisition land shall lapse if the award In not made within 2 years from the date of publication of the declaration;

(ii) the Government had not been conferred with any power under the Act to cancel an award made by the Collector and accordingly the order/notification dt. 7.10.93 (Annexure-A/4) cancelling the award dt. 4.3.93 of the Collector (Anneexure-A/3) is void and liable to be quashed and more so because the award had been made prsuant to direction of this Court in Civil Rule No. 1350/92.

(iii) the Second award dt. 20.10.93 of the Collector (Annexure-D/3) is void for non compliance with the mandatory requirements of notice to interested persons u/s 9 of the Act and hence is liable to be quashed.

Mr. Modhuchandra Singh, Junior Government Advocate appearing in the absence of Mr. L. Shyamkishore Singh, learned Addl. Govt. Advocate, on other hand, submits:

(i) the date mentioned in the Second Award would show that it was made on 288.10.93 within 2 years from the publication of the declaration u/s 6 of the Act on 30,10.91 and hence the land acquisition proceedings did not lapse u/s 11 -A of the Act;

(ii) the award dt. 4.3.93 of the Collector (Annexure-A/3) was not an award valid in law inasmuch as it was made contrary to the mandatory provisions in Section 11 of the Act that no award shall be made without the prior approval of the Govt.;

(iii) Notices had, in fact, been served u/s 9 of the Act to the interested persons and no further notices were required to be served on the persons interested or the occupants of the land.

The first submission of the learned Counsel for the Petitioner that the acquisition proceedings has lapsed u/s 11-A of the Act, in my opinion, has no force. In the present case, admittedly Section 17(1) of the Act was invoked and possession of the land has been taken by the Collector. Section 17(1) of the Act is quoted herein below:

17(1) Incases 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.

The aforesaid language of Section 17(1) of the Act makes it clear that in case of urgency, though an award has not been made, the Collector can take possession of the land for public purpose and on such possession being taken, such land vests absolutely in the Government free from all encumbrances. However, where there is no urgency, u/s 16 of the Act the Collector can take possession of land only after an award is made and on such possession being taken, the land would vest in the Government. Thus, in cases of urgency u/s 17, acquisition proceedings may be complete even before the award, and cannot lapse by virtue of Section 11A if the award is not made within 2 years from the publication of the declaration. I am supported in my aforesaid view by the decision of the Apex Court reported in 1993 (3) CCC 249. Accordingly, the first contention of the learned Counsel appearing for the Petitioner fails.

The second contention of the Petitioner that once an award is made u/s 11 of the Act by the Collector, the Government has no power under the Act to cancel the said award, has some force, but the contention presupposes an award made in accordance with Section 11 of the Act. A reading of the Act would show that no power has been vested in the Government to cancel an award once made by the Collector u/s 11 of the Act, but such an award by the Collector has to be an award made in accordance with the provisions of Section 11 of the Act. Section 11(1) of the Act is quoted hereunder:

11(1) On the day so fixed, or on any day to which the enquiry has been adjourned, the Collector shall proceed to enquire into the objections (if any) which any person interested has stated pursuant to a notice given u/s 9 to the measurement made u/s 8, and into the value of the land (at the date of the publication of the notification u/s 4, Sub-section (1), and into the respective interests of the persons claiming the compensation and shall make an award under his hand of;

i) the true area of the land;

ii) the compensation which in his opinion should be allowed for the land, and

iii) the apportionment of the said compensation among all the persons known or believed to be interested in the land, of whom, or of whose claims, he has information, whether or not they have respectively appeared before him:

Provided that no award shall be made by the Collector under this sub-section without the previous approval of the appropriate Government or of such officer as the appropriate Government may authories this behalf,

Provided further that it shall be competent to for the appropriate Government to direct that the Collector may make such award without such approval in such class of cases as the appropriate Government may specify in this behalf.

The first proviso to Section 11(1) quoted above is negatively worded and prohibits making of any award by the Collector u/s 11(1) of the Act without the previous approval of the appropriate Government or of such officer as the appropriate Government may authorise in this behalf. Further, the use of the word "shall" in the said proviso also indicates that it is the mandatory requirement of Section 11(1) of the Act that the previous approval of the appropriate Government or on such officer as the appropriate Govt. may authorise in that behalf has to be obtained by the Collector before making award and the said requirement can be dispeused with under the second proviso by the appropriate Government only. Accordingly, although the Government may not have the power under the Act to cancel an award made in accordance with Section 11(1) of the Act, in a proceeding before a Court for a direction to pay compensation in accordance with an award, it is open for the Government to take the defence that the award is not an award u/s 11 of the Act and no compensation can be directed to be paid in accordance with such an award. I am, therefore, of the opinion that although the Government has no power to cancel an award made by the Collector in accordance with Section 11A of the Act, in the present case no direction can be issued to the Government to pay compensation in accordance with the award dated 4.3.93 as it has not been made in accordance with the mandatory provisions of Section 11(1) of the Act and is not an award u/s 11 of the Act. The submission of the learned Counsel for the Petitioner that the said award dt. 4.3.93 was made in compliance with the direction of this Court in Civil Rule No. 1350/92 does not improve matters because no direction was given in the order dated 27.11.92 in the said Civil Rule by this Court to the Collector to make an award without prior approval of the State Government as required by Section 11(1) of the Act.

That leaves us with the last contention of the learned Counsel for the Petitioner that the second award dt. 28.10.93 of the Collector (Annexure-D/3) is vitiated on account of non compliance with the provisions of Section 9 and 11 of the Act, In support of the said contention, learned Counsel for the Petitioner has brought to my notice the averments in paragraph 5 of the rejoinder affidavit and paragraph 6 of the application for quashing the 2nd award dt. 28.10.93. Though the aforesaid averments of the Petitioner have not been denied on affidavit on behalf of the Respondents, Learned Counsel for the Respondents has submitted that a reading of the said award dt. 28.10.93 (Annexure-P/3) would show that the said award was passed after due enquiry, and therefore, the aforesaid contention of the learned Counsel for the Petitioner is not correct. The learned Counsel for the Respondent, further, submits that notices u/s 9(1) and 9(3) of the Act are contemplated only once and such notices were served before the first award dt. 4.3.93 was made by the Collector. But, since the first award dt. 4.3.93 of the Collector was not made with the prior approval of the State Government as required by Section 11 of the Act, the said award had to be cancelled and a fresh award dt. 28.10.93 has to be made by the Collector after due enquiry and after prior approval of the State Government.

In my opinion, the aforesaid contention of the learned Counsel for the Respondents overlooks the fact that u/s 9 of the Act notices are required to be given to persons interested in the land and to the occupants of the land not merely for the purpose of enabling them to make their claims for compensation but also to participate in the inquiry to be conducted by the Collector before making the award u/s 11 of the Act In the present case, though notices appear to have been given to all persons interested in the land and 10 the occupants of the land u/s 9 of the Act and pursuant to the said notices claims and objections were made and the Collector enquired into the claims and objections of the said persons and occupants of the land and thereafter made the award dt. 4.3.93 (Annexure A/3), the said award of the Collector was not accepted by the Government on account of the fact that no prior approval had been granted by the Government before the award was made. But thereafter, when a fresh inquiry was made by the Collector for the purpose of making the 2nd award dt. 28.10.93 (Annexure-D/3), the persons interested in the land and occupants of the land no longer could participate in the enquiry. In the circumstances, therefore, the enquiry conducted by the Collector after the first award dt. 4.3.03 was without the participation of the persons Interested in the land and occupants of land. The contention of the learned Counsel for the Respondent that after notice were issued u/s 9 of the Act before the first award dt. 4.3.93 was made, the law did not require any further notice to the persons interested in the land and occupants of the land u/s 9 of the Act has also no force because the provisions of Section 9(2) and Section 11(1) of the Act Indicate that a date has to be fixed for the enquiry into the objections of the persons interested in the land and such fixation of date of enquiry and adjournment of the enquiry to some other date would show that the purport of the notices u/s 9 of the Act is not merely to give an opportunity to the persons interested in the land and occupants of the land to make their claims or to file their objections, but also to participate in the enquiry conducted by the Collector before making the award.

Accordingly, I am of the view that the 2nd award dt. 28.10.93 of the Collector (Annexure-D/3) has been made without giving due opportunity to the persons interested in the land and occupants of the land to participate in the enquiry relating to determination of the compensation, and as the requirements of law as provided in Sections 9 and 11 of the Act have not been complied with, the award dt. 28.10.93 of the Collector, Land Acquisition, Ukhrul (Annexurc-D/3) is liable to be quashed.

In the result, the award dated 28.10.93 of the Collector, Land Acquisition, Ukhrul (Annexure D/3) is quashed and the Collector is directed, to issue notice to the persons interested and occupants of the land fixing, the date of enquiry for determination of the compensation and make a fresh award in accordance with law after obtaining prior approval of Government as required u/s 11 of the Act, Since the matter has been delayed I further direct that the aforesaid exercise shall be completed by the Collector and the award shall be made within 4 months from the date of receipt of his order and compensation shall be paid within 2 months from the date of the award The directions is being issued keeping in mind the Judgment of the Apex Court in Ambalal Purshottam etc. Vs. Ahmedabad Municipal Corporation and Others, to the effect that where the land owners or the tenants were aggrieved by delay by delay in assessing the compensation, it is always open for them to claim writ or orders compelling the State Government to complex the assessment and payment of the compensation.

With aforesaid directions, this writ petition is disposed of No. costs.