Abdul Majeed Sahib & Anr. Vs. The District Collector & Ors.
EmailAppeal: Civil Appeal No.14784 of 1996
(Arising out of SLP (C) No.161 of 1994)
(From the Judgment and Order dated 9.7.93 of the Kerala High Court in O.P.No. 1061 of 1993)
(Arising out of SLP (C) No.161 of 1994)
(From the Judgment and Order dated 9.7.93 of the Kerala High Court in O.P.No. 1061 of 1993)
Petitioner: Abdul Majeed Sahib & Anr.
Respondent: The District Collector & Ors.
Apeal: Civil Appeal No.14784 of 1996
(Arising out of SLP (C) No.161 of 1994)
(From the Judgment and Order dated 9.7.93 of the Kerala High Court in O.P.No. 1061 of 1993)
(Arising out of SLP (C) No.161 of 1994)
(From the Judgment and Order dated 9.7.93 of the Kerala High Court in O.P.No. 1061 of 1993)
Judges: K.RAMASWAMY & G.B.PATTANAIK, JJ.
Date of Judgment: Nov 01, 1996
Appearances:
E.M.S. Anam, Advocate for the Appellants.
Mr. V.R.Reddy, Additional Solicitor General, Mr. G. Nageswar Reddy, Mr. C.V.S.Rao, Advocates for Mrs. Anil Katiyar, and Mr. M.T.George, Advocates with him for the Respondents.
Head Note:
LAND ACQUISITION
Land Acquisition Act, 1894:
Sections 11A, 48(1) and 48(2) – Non making of an Award by Land Acquisition Officer within two years and entire acquisition standing lapsed under Section 11A – Held right to claim compen-sation under Section 48(2) accrues only if there is withdrawal of Notification under Section 4(1) by Govt. and declaration under Section 6 by exercising its power under Section 48(1) – Held further that statutory lapse under Section 11A is distinct and different from voluntary act under Section 48(1) and appellant not entitled to claim remedy under sub-section (2) of Section 48 – Appeal dismissed.
Land Acquisition Act, 1894:
Sections 11A, 48(1) and 48(2) – Non making of an Award by Land Acquisition Officer within two years and entire acquisition standing lapsed under Section 11A – Held right to claim compen-sation under Section 48(2) accrues only if there is withdrawal of Notification under Section 4(1) by Govt. and declaration under Section 6 by exercising its power under Section 48(1) – Held further that statutory lapse under Section 11A is distinct and different from voluntary act under Section 48(1) and appellant not entitled to claim remedy under sub-section (2) of Section 48 – Appeal dismissed.
Held:
The word ‘withdraws’ would indicate that the Government by its own action voluntarily withdraws from the acquisition; the Government has necessarily to withdraw from the acquisition, in other words, there should be publication of the withdrawal of the notification published under Section 4(1) and the declaration published under Section 6 by exercising the power under Section 48(1). Sub-Section (2) of Section 48 would then apply. In this case, admittedly, the Government had not exercised the power under Section 48(1) withdrawing from the notification under Section 4(1) or the declaration under Section 6. The statutory lapse under Section 11-A is distinct different from voluntary act on the part of the Government. Therefore, it must be by withdrawal of the notification by voluntary act on the part of the State under Section 48(1). Under these circumstances, the appellant is not entitled to avail of the remedy of sub-section (2) of Section 48. (Para 8)
JUDGEMENT:
ORDER
1. Delay condoned.
2. Leave granted.
3. We have heard learned counsel on both sides.
4. Notification under Section 4(1) of the Land Acquisition Act, 1894 (for short “the Act”) was published on October 16, 1987 proposing to acquire the land for establishment of a telephone exchange. Declaration under Section 6 was published in June 1988. It would appear that there was a negotiation between the parties for settlement by determination of compensation by agree-ment, but in the process, two years limitation prescribed under Section 11-A introduced by Act 68 of 1984 in the Act, had lapsed on June 16, 1990. As a result, the notification and declaration by operation of Section 11-A stood lapsed. Subsequently, the appellant had filed an application under Section 48(2) on Septem-ber 17, 1990 for determination of compensation which was rejected on February 18, 1992. The writ petition was dismissed in O.P. No.1061/93 on July 9, 1993 by the High Court of Kerala. Thus, this appeal by special leave.
5. Shri Anam, learned counsel for the appellant, contended that by statutory operation under Section 11-A, when the acquisition stood lapsed, it amounted to withdrawal from acquisition by operation of sub-section (1) of Section 48. Therefore, sub-section (2) of Section 48 stands attracted. Resultantly, the Collector shall determine the amount of compensation due for the damages suffered by the owner in consequence of the notification published under Section 4(1) of the Act and declaration under Section 6 and the proceedings taken thereafter. The High Court and the Land Acquisition Officer, therefore, were not right in rejecting the claim of the appellant. Having regard to the contention, we think that the contention of the learned counsel is not well-founded.
6. Section 11-A was brought on statute by Amendment Act 68 of 1984. It was notorious that the State, after publication of declaration under Section 6 went on delaying for years, to pass the awards putting obstruction to the owner of the land for enjoyment; resultantly, loss and undue disadvantage ensued to the owner of the land. To mitigate such hardship, the Parliament introduced Section 11-A and directed the Land Acquisition Officer to make the award within two years from the date of publication of last of the steps under Section 6(2) publishing the declara-tion under Section 6. As a consequence, the Land Acquisition Officer is statutorily under an obligation, at the pain of in-validation of the acquisition itself, to make the award within two years unless it falls within one of the provisos or the Explanation added thereto. In this case, neither the proviso nor the Explanation stands attracted to the facts. Consequently, since the Land Acquisition Officer did not make the award within two years from the date of the declaration, viz., June 17, 1988, the entire acquisition shall stand lapsed.
7. Section 48(1) of the Act provides that “(E)xcept in the case provided for in Section 36, the Government shall be at liberty to withdraw from the acquisition of any land of which possession has not been taken.” Consequently, due to any notification issued under Section 4(1) or the declaration published under Section 6, if the owner is subjected to any detriment in enjoyment of the property, though the notification is withdrawn by the Government by exercising the power under Section 48(1), since possession of the land was not taken, the statute envisages payment of compen-sation for the loss suffered by the owners/tenant. The right to claim compensation and the manner of determination has been provided in sub-section (2) of Section 48 of the Act which reads as under:
“(2) Whenever the Government withdraws from any such acquisition, the Collector shall determine the amount of compensation due for the damage suffered by the owner in consequence of the notice or of any proceedings thereunder, and shall pay such amount to the person interested, together with all costs reasonably incurred by him in the prosecution of the proceedings under this Act relating to the said land.”
8. The word ‘withdraws’ would indicate that the Government by its own action voluntarily withdraws from the acquisition; the Gov-ernment has necessarily to withdraw from the acquisition, in other words, there should be publication of the withdrawal of the notification published under Section 4(1) and the declaration published under Section 6 by exercising the power under Section 48(1). Sub-Section (2) of Section 48 would then apply. In this case, admittedly, the Government had not exercised the power under Section 48(1) withdrawing from the notification under Section 4(1) or the declaration under Section 6. The statutory lapse under Section 11-A is distinct different from voluntary act on the part of the Government. Therefore, it must be by withdrawal of the notification by voluntary act on the part of the State under Section 48(1). Under these circumstances, the appellant is not entitled to avail of the remedy of sub-section (2) of Section 48.
9. The appeal is accordingly dismissed. No costs.
1. Delay condoned.
2. Leave granted.
3. We have heard learned counsel on both sides.
4. Notification under Section 4(1) of the Land Acquisition Act, 1894 (for short “the Act”) was published on October 16, 1987 proposing to acquire the land for establishment of a telephone exchange. Declaration under Section 6 was published in June 1988. It would appear that there was a negotiation between the parties for settlement by determination of compensation by agree-ment, but in the process, two years limitation prescribed under Section 11-A introduced by Act 68 of 1984 in the Act, had lapsed on June 16, 1990. As a result, the notification and declaration by operation of Section 11-A stood lapsed. Subsequently, the appellant had filed an application under Section 48(2) on Septem-ber 17, 1990 for determination of compensation which was rejected on February 18, 1992. The writ petition was dismissed in O.P. No.1061/93 on July 9, 1993 by the High Court of Kerala. Thus, this appeal by special leave.
5. Shri Anam, learned counsel for the appellant, contended that by statutory operation under Section 11-A, when the acquisition stood lapsed, it amounted to withdrawal from acquisition by operation of sub-section (1) of Section 48. Therefore, sub-section (2) of Section 48 stands attracted. Resultantly, the Collector shall determine the amount of compensation due for the damages suffered by the owner in consequence of the notification published under Section 4(1) of the Act and declaration under Section 6 and the proceedings taken thereafter. The High Court and the Land Acquisition Officer, therefore, were not right in rejecting the claim of the appellant. Having regard to the contention, we think that the contention of the learned counsel is not well-founded.
6. Section 11-A was brought on statute by Amendment Act 68 of 1984. It was notorious that the State, after publication of declaration under Section 6 went on delaying for years, to pass the awards putting obstruction to the owner of the land for enjoyment; resultantly, loss and undue disadvantage ensued to the owner of the land. To mitigate such hardship, the Parliament introduced Section 11-A and directed the Land Acquisition Officer to make the award within two years from the date of publication of last of the steps under Section 6(2) publishing the declara-tion under Section 6. As a consequence, the Land Acquisition Officer is statutorily under an obligation, at the pain of in-validation of the acquisition itself, to make the award within two years unless it falls within one of the provisos or the Explanation added thereto. In this case, neither the proviso nor the Explanation stands attracted to the facts. Consequently, since the Land Acquisition Officer did not make the award within two years from the date of the declaration, viz., June 17, 1988, the entire acquisition shall stand lapsed.
7. Section 48(1) of the Act provides that “(E)xcept in the case provided for in Section 36, the Government shall be at liberty to withdraw from the acquisition of any land of which possession has not been taken.” Consequently, due to any notification issued under Section 4(1) or the declaration published under Section 6, if the owner is subjected to any detriment in enjoyment of the property, though the notification is withdrawn by the Government by exercising the power under Section 48(1), since possession of the land was not taken, the statute envisages payment of compen-sation for the loss suffered by the owners/tenant. The right to claim compensation and the manner of determination has been provided in sub-section (2) of Section 48 of the Act which reads as under:
“(2) Whenever the Government withdraws from any such acquisition, the Collector shall determine the amount of compensation due for the damage suffered by the owner in consequence of the notice or of any proceedings thereunder, and shall pay such amount to the person interested, together with all costs reasonably incurred by him in the prosecution of the proceedings under this Act relating to the said land.”
8. The word ‘withdraws’ would indicate that the Government by its own action voluntarily withdraws from the acquisition; the Gov-ernment has necessarily to withdraw from the acquisition, in other words, there should be publication of the withdrawal of the notification published under Section 4(1) and the declaration published under Section 6 by exercising the power under Section 48(1). Sub-Section (2) of Section 48 would then apply. In this case, admittedly, the Government had not exercised the power under Section 48(1) withdrawing from the notification under Section 4(1) or the declaration under Section 6. The statutory lapse under Section 11-A is distinct different from voluntary act on the part of the Government. Therefore, it must be by withdrawal of the notification by voluntary act on the part of the State under Section 48(1). Under these circumstances, the appellant is not entitled to avail of the remedy of sub-section (2) of Section 48.
9. The appeal is accordingly dismissed. No costs.
