Yusufbhai Noormohmed Nandoliya vs State of Gujarat and Another

S.B. Majmudar, J.—The petitioner who is occupant of two survey numbers 864 and 687 of village Samalpati in Patan Taluka of Mehsana

District has brought in challenge the orders passed by respondents refusing to hold that land acquisition proceedings qua these lands have lapsed as

award u/s 12 of the Land Acquisition Act has not been passed qua these lands within two years from the date of declaration of Section 6

notification. A few dates relevant for this challenge may be noted at the outset. The petitioner''s aforesaid two lands alongwith lards of other

occupants were put in acquisition by the State of Gujarat-respondent No. 1 for the purpose of North Gujarat University which was to be

established at Patan. Section 6 notification was issued on 12-5-1988. We may take it that it was also published in the locality round about that

time. The learned Advocate for the petitioner stated that such publication took place somewhere in June 1988. The petitioner challenged this

Section 6 notification by filing Special Civil Application No. 4342 of 1988 in this Court. That petition is still at admission stage. Notice has been

issued to the other side. So far as interim relief was concerned, as per prayer (E), the petitioner prayed for stay of operation and implementation of

the notification u/s 6 of the Act issued with reference to the petitioner''s lands. However, this Court granted only limited ad interim relief regarding

possession only. Ad interim relief injunction which was issued to the respondents read as under:

It is hereby accordingly ordered that you, your servants and the agents be and are hereby restrained from taking possession of the land in dispute

of the petitioner, pending admission of the aforesaid Special Civil Application by this Court.

This ad interim relief was granted on 9-8-1988 and it is still current. In the meantime, it appears that the second respondent found that proceedings

regarding passing of award pursuant to notification u/s 6 were not stayed by this Court. He, therefore, issued notice u/s 9(1) and proceeded to

determine the compensation after hearing the objections. When this inquiry was initiated by respondent No. 2, the petitioner and Ors. occupants

whose lands ware also under acquisition raised objections before respondent No. 2 that as two years have passed after the declaration of

notification u/s 6, all these proceedings have lapsed. For this purpose, reliance is placed on Section 11A of the Act which reads as under:

11A. Period within which an award shall be made: The Collector shall make an award u/s 11 within a period of two years from 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, 1894,

the award shall be 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.

Respondent No. 1 rejected the said contention of the petitioner placing reliance on a decision rendered by this Court in Special Civil Application

No. 4314 of 1990 decided by the Division Bench consisting of R.C. Mankad and R.J. Vaidya, JJ on 14-6-1990. The aforesaid Division Bench

speaking through R.C. Mdnkad, J. negatived an identical contention canvassed by another occupant of the land whose land also was sought to be

acquired by the very same notification and who had obtained ad interim relief re-possession from this Court.

Mr. Vakharia appearing for the petitioner submitted that respondent No. 1 was in error in placing reliance on the decision of the Division Bench

in Special Civil Application No. 4314 of 1990 (supra) as the said decision does not lay down correct law and is required to be reconsidered by a

larger bench. Before examining this aspect, we may point out that the main contention of the learned Advocate for the petitioner in connection with

alleged lapsing of land acquisition proceedings centred round Section 11A which is reproduced earlier. It is true that it per requirement of Section

11A, the Collector has to make award u/s 11 within a period of two years from the publication of the declaration and if no such award is made

within the period, the entire proceedings for the acquisition of land shall be treated to have lapsed. The period of two years is to be counted from

the date of declaration of notification u/s 6. There cannot be any dispute on this aspect. But so far as Section 6 is concerned, Sub-section (2)

thereof lays down that every declaration shall be published in the official gazette and in two daily newspapers circulating in the locality in which the

land is situated 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 the publication of the declaration.) For the present purpose, we may proceed on the basis that the last of the

dates of publication indicated by Section 6(2) occurred somewhere in June 1988 and, therefore, by June 1990, two years as contemplated by

Section 11A would be over for passing the award. However, explanation to Section 11A is pressed in service by the respondents. The

Explanation in terms 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 a Court shall be excluded. The moot question is, whether on the facts of the present case, it can be

said that by the order of this Court, any action or proceeding to be taken in pursuance of the said declaration was stayed. If the answer is in

affirmative, then the period of stay would get excluded; if it is in the negative, then the benefit of exclusion contemplated by the said explanation

would not be available to the respondents.

Mr. Vakharia for the petitioner veheroently contended that what this Court has done in the petitioner''s petition challenging the land acquisition

proceedings being Spl. C.A. 4342 of 1988 is that taking of possession is stayed, and no other action of the respondents is stayed by this Court. It

was vehemently contended by Mr. Vakharia that the words ''any action or proceeding to be taken in pursuance of the said declaration'' as

employed by the Explanation would contemplate actions as per Sections 7 and 8 of the Act. u/s 7, the appropriate Government can direct the

Collector to take order for acquisition of the land. That will be the action of the appropriate Government while the Collector''s action would be u/s

8 which lays down that the Collector shall thereupon cause the land, (unless it has been already marked out u/s 4) to be marked out. He shall also

cause it to be measured and if no plan has been made thereof, a plan to be made of the same. These are the two actions contemplated by the

appropriate Government and the Collector under Sections 7 and 8. That would be pursuant to declaration u/s 6. But there, in the submission of

Mr. Vakharia, the contemplated actions by Explanation to Section 11A would end and there would remain only the proceedings to be taken

pursuant to the declaration. These proceedings are contemplated by Sections 9, 10 and 11. Section 9 deals with notice to be issued to persons

interested and lays down that the Collector shall cause 4 public notice to be given at convenient places on or near the land to be taken stating that

the Government intends to take possession of the land, and that claims to compensation for all interests in such land may be made to him. Sub-

section (2) thereof deals with particulars of the notice to be stated in such notice. Section 10 deals with power to require and enforce the making of

statements as to names and interests, in the proceedings. Then follows Section 11 which deals with inquiry to be made by the Collector pursuant to

notice and the award to be passed u/s 11. The award which is to be passed by the Collector after inquiry, is to comprise of three aspects, viz. (i)

the true area of the land; (ii) the compensation which in his opinion should be allowed for the land, and (iii) apportionment of the compensation

among all persons known or believed to be interested in the land. It was submitted by the learned Advocate of the petitioner that these

proceedings under Sections 9, 10 and 11 are the only proceedings which are within the scope of Explanation to Section 11A. That question of

taking possession is totally foreign to the scope of Explanation to Section 11A, save and except when urgency clause is invoked. But even there,

Mr. Vakharia had reservation to the effect that perhaps even that would not be covered. But we are not concerned with urgency clause and hence,

we do not dilate on this aspect. Our attention was invited to Section 12 of the Act which lays down that such award shall be filed in the Collector''s

Office and shall be final and conclusive evidence as between the Collector and the persons interested, whether they have respectively appeared

before the Collector or not, of the true area and value of the land, and the apportionment of the compensation among the persons interested. The

next relevant section to which our attention was invited was Section 16 which says that when the Collector has made an award u/s 11, he may take

possession of the land, which shall thereupon vest absolutely in the Government free from all encumbrances. On a conjoint reading of the aforesaid

provisions, it was submitted that taking of possession is not pursuant to the declaration u/s 6 but it is pursuant to the award u/s 11 and, therefore,

even though this Court has granted ad interim injunction against possession in Special Civil Application No. 4342 of 1988 moved by the petitioner

challenging Section 6 notification, the said ad interim relief will not extend the period for passing the award on the facts of the present case and,

therefore, as two years have expired by the end of June 1990, all these proceedings qua the petitioner''s lands must be treated to have lapsed.

It is not possible to agree with, the contention of Mr. Vakharia for obvious reasons. Firstly, Explanation to Section 11A enjoins exclusion of the

entire period during which any action or proceeding to be taken pursuant to declaration u/s 6 is stayed by an order of a competent Court. It is

pertinent to note that the Explanation is not confined to only staying of passing of award pursuant to Section 6 notification but it is widely worded

and covers in its sweep the entire period during which any action or proceedings to be taken in pursuance of declaration u/s 6 is stayed by the

competent Court. ''Any action'' is wide phrase and includes all actions which are taken in the light of Section 6 notification in the process of

resorting to all consequential steps flowing from Section 6 notification till taking the ultimate step of obtaining possession of the acquired land which

would put Section 6 notification to its logical end. If any of these actions is stayed by the competent Court in connection with the impugned land

acquisition proceedings, benefit of the Explanation will start flowing for the respondents. It is also not possible to agree with the contention that u/s

16, possession is to be taken pursuant to the award. So far as award is concerned, Section 11 requires the Collector to pass award in connection

with only three aspects as mentioned earlier. Section 11 has nothing to do with possession. Though award as per Section 11 may form an inter-

mediate step before possession can be taken u/s 16 in cases not covered by Section 17, even then, right to take possession accrues to the

acquiring authority pursuant to declaration u/s 6. It is obvious that u/s 6, once the declaration is made, it become conclusive between the acquiring

authority on the one hand and the holder of the land on the other. It is after Section 6 declaration that the acquiring authority would proceed to take

possession after following the due procedure. But his right to take possession is directly linked up with Section 6. That right may be exercised

earlier u/s 17 or later after Section 11 award if there is no urgency clause. All the same, right to take possession accrues to the acquiring authority

on the basis of legal notification u/s 6 and not de hors it. It is obvious that only a valid Section 6 notification entitles the authorities to award

compensation and get the vesting of the acquired land as contemplated by Section 16 of the Act. Thus, the ultimate step of taking possession and

as a consequence vesting of acquired land free from all encumbrances in the Govt. as per Section 16 are in pursuance of the Section 6 notification

and cannot be de hors it. Therefore, right to take possession and to get the land vested in Govt. directly and logically flows from Section 6

notification and not from the award. Award is not the least concerned with crystalising of right to take possession. Award may be a condition

precedent to taking possession as per Section 16 in cases contemplated by it but it would not mean that right to take possession flows from the

award and not from the notification u/s 6. Consequently, if the respondents'' right to take possession under, land acquisition notification is stayed by

the Court, the period during which such stay operates has to be treated as period during which action or proceeding pursuant to declaration u/s 6

remains stayed. As the said injunction is still operative, it cannot be said that two years'' period as contemplated by Section 11A has come to end

and that acquisition proceedings have lapsed. This view of ours finds support from the decision of the Division Bench of this Court in Spl. C.A.

No. 4314 of 1990 (supra).

We entirely agree with the reasoning of the Division Bench taking the very same view. The Division Bench of this Court while taking this view

has also followed an earlier decision of another Division Bench which bad also interpreted Explanation to Section 11A on the same lines. We

respectfully concur with the ratio of the decision of these cases. It may be noted that the Kerala High Court has taken a contrary view on the

language of Explanation to Section 11A, in its decision reported in AIR 1988 Kerala 280 (S. Bavajan Sahib v. State of Kerala). But that view is

rightly dissented from in the aforesaid decision in Spl. C.A. No. 4314 of 1990 and we concur with the said dissent. Consequently, no case is made

out for our interference with the view taken by the respondents that the land acqusition proceedings have not lapsed. This petition is, therefore,

summarily rejected.