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Abdul Salam Alias Babu S/O … vs State Of U.P. Through Secretary … on 1 November, 2007

Allahabad High Court Abdul Salam Alias Babu S/O … vs State Of U.P. Through Secretary … on 1 November, 2007Equivalent citations: 2008 (1) AWC 399 Author: B Chauhan Bench: B Chauhan, A Tandon

JUDGMENT

B.S. Chauhan, J.

1. This writ petition has been filed for quashing the impugned Notification dated 15.06.2006, issued under Section 4(1) of the Land Acquisition Act, 1894 (hereinafter called the Act) and Declaration dated 19.10.2006, issued under Section 6 of the Act, and further direction is sought to release the land in question which is covered by residential area.

2. The validity of the acquisition proceedings cannot be examined as the petitioner has challenged it at a belated stage, and it is admitted to the petitioner himself that by invoking the provisions of Section 17(1) of the Act the possession of the land has already been taken on 10.08.2007. Had the petitioner been diligent enough and was willing to challenge the acquisition proceedings, he should have approached the Court within reasonable time. Vide Girdharan Prasad Missir v. State of Bihar (1980) 2 SCC 83; H.D. Vora v. State of Maharashtra AIR 1984 SC 865; Hari Singh v. State of U.P. and Ors. ; Bhoop Singh v. Union of India ; The Ramjas Foundation and Ors. v. Union of India and Ors. ; Ram Chand v. Union of India ; State of Maharashtra v. Digambar ; State of Orissa v. Dhobei Sethi and Anr. ; C. Padma v. Deputy Secretary to Govt. of Tamil Nadu ; and Northern Indian Glass Industries v. Jaswant Singh and Ors. .

3. A Constitution Bench of the Hon’ble Supreme Court, in Aflatoon and Ors. v. Lt. Governor, Delhi and Ors. , has observed as under:

…to have sat in fence and allowed the government to complete the acquisition on the basis that notification under Section 4 and the declaration under Section 6 were valid and then to attack the notification on the grounds which were available to them at the time when the notification was published, would be putting a premium of dilatory tactics. The wit petitions are liable to be dismissed on the ground of laches and delay on the part of the petitioner.

4. Same view has been taken by the Hon’ble Supreme Court in State of Mysore v. V.K. Kangan , wherein it was observed that respondent was not entitled to challenge the validity of Section 4 Notification after an unreasonable lapse of time. If public notice, as required by Section 4 of the Act, was not given and that would per se vitiate the notification under Section 4, the person interested should have challenged its validity within a reasonable time of the publication of the notification under Section 4 of the Act.

5. In Municipal Corporation of Greater Bombay v. I.D.I. Co. (Pvt.) Ltd. , the Hon’ble Supreme Court observed as under:

If the interested person allows the grass to grow under his feet by allowing the acquisition proceedings to go on and reach its terminus in the award and possession is taken in furtherance thereof and vest in the State free from all incumbrances, the slumbered interested person would be told off the gates of the Court that his grievance should not be entertained when there is inordinate delay in filing the writ petition and when all steps taken in the acquisition proceedings have become final, the Court should be loath to quash the notifications. The High Court has, no doubt, discretionary power under Article 226 of the Constitution to quash the notification under Section 4(1) and Declaration under Section 6. But it should be exercised taking all relevant factors into pragmatic consideration. When the award was passed and possession was taken, the Court should not exercise its power to quash the award which is a material factor to be taken into consideration before exercising the power under Article 226. The fad that no third party rights were created in the case, is hardly a ground for interference.

Thus, at such a belated stage, the validity of Section 4 Notification and Section 6 Declaration cannot be examined and petition is liable to be dismissed only on the ground of delay and laches.

6. Shri M.C. Singh, learned Counsel for the petitioner has placed a very heavy reliance upon the Division Bench judgment of this Court dated 03.10.2007 in Writ Petition No. 41576 of 2007 Raj Kumar and Ors. v. State of U.P. and Ors. wherein the same acquisition proceedings were challenged. The said Bench recorded the finding of fact that the possession of the land had been taken on 10.08.2007, and in such a fact-situation the only statutory remedy available to the petitioners therein was to file an application under Section 48(1) of the Act for releasing the land.

7. Shri Shashi Kant Gupta, learned Counsel appearing for respondent No. 4 and Mr. C.K. Rai, learned Standing Counsel have submitted that admittedly the said judgment has been in respect of the same acquisition proceedings, but that judgment cannot be followed as it has been delivered without examining the provisions of Section 48(1) of the Act. The application under the said provision is not maintainable where possession has been taken.

The provisions of Section 48 of the Act read as under:

Completion of acquisition not compulsory, but compensation to be awarded when not completed. (1) Except in 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.

Therefore, the plain reading of the statutory provisions makes it crystal clear fiat Government can withdraw the acquisition proceedings in case the possession of the land sought to be acquired has not been taken. The possession of the land can be taken under Sections 16 and 17(1) of the Act and once possession is taken the land vests in the State free from all encumbrances and once land is vested, it cannot be divested.

8. In Satendra Prasad Jain v. State of U.P. and Ors. , the Hon’ble Supreme Court held that once land vests in the State free from all encumbrances, it cannot be divested and proceedings under the Act would not lapse even if award is not made within the statutory period. The same view has been reiterated in Avadh Behari Yadav v. State of Bihar and Ors. ; UP. Jal Nigam v. Kalra Properties (P) Ltd. ; and Allahabad Development Authority v. Nasiruzzaman and Ors. .

Similar view has been reiterated by the Hon’ble Supreme Court in M. Ramalinga Thevar v. State of Tamil Nadu and Ors. ; and Government of Andhra Pradesh v. Syed Akbar (2004) AIR SCW 7125.

9. A Division Bench of this Court to which one of us (B.S. Chauhan, J.) in Ram Gopal Varshney and Ors. v. State of U.P. and Ors. (2004) 1 AWC 206 considered this issue and held as under:

In Special Land Acquisition Officer, Bombay and Ors. v. Godrej & Boyce , wherein the Hon’ble Supreme Court held that the Government is competent to withdraw from the acquisition proceedings and while doing so, the Government is neither required to afford opportunity of hearing to the land owners nor required to record any reasons for such a withdrawal. At the most, land owners may be held entitled to claim compensation under Sub-section (2) of Section 48 in such an eventuality. But notification under Section 48(1) cannot be held to be the only mode of withdrawal of the proceedings. But withdrawal is permissible only prior to vesting of the land in the State free from all encumbrances.

[Emphasis added].

10. In The State of Madhya Pradesh and Ors. v. Vishnu Prasad Sharma and Ors. , the issue arose as to whether the Government has a power to withdraw the proceedings resorting to the power other than conferred under Section 48 of the Act. The Court held that such powers can be exercised in view of the provisions of Section 21 of the General Clauses Act also which empowers an authority to undo something if it has a power to do it. However, the Court held as under:

Section 48(1) confers a special power on Government of withdrawal from acquisition without cancelling the notifications under Sections 4 and 6, provided it has not taken possession of the land covered by the notification under Section 6.

(Emphasis added).

11. In Lt. Governor of Himachal Pradesh v. Vishnu Sharma , the Hon’ble Supreme Court held as under:

Power to cancel a notification for compulsory acquisition is, it is true, not affected by Section 48 of the Act; by a notification under Section 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 under Section 21 of the General Clauses Act cannot be exercised after the land statutorily vests in the State Government….

It is clearly implicit in the observations that after possession has been taken pursuant to a notification under Section 17(1) the land is vested in the Government, and the notification cannot be cancelled under Section 21 of the General Clauses Act, nor can the notification be withdrawn in exercise of the powers under Section 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 under Section 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.

(Emphasis added).

12. In Jetumull Bhojraj v. The State of Bihar and Ors. , the Apex Court has taken the same view observing that once the possession is taken either under Section 16 or 17(1) of the Act, power to withdraw the acquisition proceedings cannot be exercised by the State.

13. In Balwant Narayan Bhagde v. M.D. Bhagwat and Ors. AIR 1975 SC 1767, a similar view has been reiterated observing that once the actual physical possession has been taken, the proceedings cannot be withdrawn and once land vests in the Government free from all encumbrances, the Government or any other authority loses the competence to withdraw the acquisition proceedings. Similar view has been has been reiterated by the Supreme Court in Mandir Shree Sita Ramji v. Land Acquisition Collector and Ors. ; and State of Kerala v. V.P. Kurian (2005) 11 SCC 493.

14. In Banglore Development Authority v. R. Hanumaiah and Ors. (2005) 12 SC 508, the Hon’ble Supreme Court placing reliance upon its earlier judgment in Pratap and Anr. v. State of Rajasthan and Ors. , Mohan Singh and Ors. v. International Airport Authority of India and Ors. ; and Printers (Mysore) Ltd. v. M.A. Rasheed and Ors. , held as under: The possession of the land in question was taken in the year 1966 after the passing of the award by the Land Acquisition Officer. Therefore, 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 awarded or cancelled in exercise of power under Section 48 of the Land Acquisition Act. Power under Section 21 of the General Clauses Art cannot be exercised after vesting of the land statutorily in the State Government.

15. Thus, the law can be summarised that the Government has a power to withdraw the acquisition proceedings provided the land has not vested in the State. In case the possession of the land has been taken and the land has vested in the State free from all encumbrances, it cannot be divested. The Government in exercise of power under Section 48 of the Act cannut withdraw the acquisition proceedings.

16. In view of the above, it is evident that the judgments so heavily relied upon by Shri M.C. Singh cannot be relied upon as it has been delivered without taking note of the statutory provisions itself. Petition is devoid of any merit and accordingly dismissed.

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