IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. C.W.P. No. 4227 of 2009 Date of Decision: September 4, 2009 Bhupinder Singh and others …Petitioners Versus State of Punjab and another …Respondents CORAM: HON'BLE MR. JUSTICE M.M. KUMAR HON’BLE MR. JUSTICE JASWANT SINGH Present: Mr. S.C. Nagpal, Advocate, for the petitioners. Ms. Sudeepti Sharma, DAG, Punjab, for the respondents. 1. To be referred to the Reporters or not? Yes 2. Whether the judgment should be reported in the Digest? Yes M.M. KUMAR, J. This is third round of litigation between the petitioners and the respondent State. The prayer made in the instant petition filed under Article 226 of the Constitution is for quashing notification dated 16.11.2000 (P-1) issued by the respondent State under Section 4 of the Land Acquisition Act, 1894 (for brevity, ‘the Act’) and declaration dated 29.6.2001 (P-3), issued under Section 6 of the Act. The petitioners have filed objections under Section 5A of the Act before the Land Acquisition Collector-respondent No. 2. Some of the C.W.P. No. 4227 of 2009 petitioners had earlier approached this Court by filing C.W.P. Nos. 10887 of 2001 and 11730 of 2001, challenging the impugned notifications. The petitioners have alleged that the State Government, before the Court, agreed to grant them alternative site and also consider, in the alternative, the question of acquiring another piece of land for construction of bus stand, and thus releasing the petitioners’ land. Accordingly, the writ petitions were withdrawn at that stage vide order dated 28.7.2001 and subsequent orders dated 14.11.2002 and 5.5.2003. 2. On the allegation that the respondent State did not comply with the promise made in the earlier litigation, the petitioners filed C.W.P. No. 2377 of 2005, which was disposed off on 24.8.2006 by a Division Bench of this Court (P-4). A perusal of the order (P-4) shows that a decision was taken by the State Government to allot space to each of the 25 persons who were running their shops, which were constructed in an area of 3 Kanals of land of the earlier proposed acquisition. The order of the Division Bench, dated 24.8.2006 is extracted below for facility of reference:- “ On the other hand, Mr. Munjal, learned Additional Advocate General, Punjab, on the basis of instructions given by Shri Iqbal Singh Sandhu, General Manager, Punjab roadways, Ropar, submits that there were 25 shops constructed in an area of 3 Kanals of the acquired land. The State Government has decided to allot space to each of the 25 persons who were running their shops. A plan of the proposed shops has been shown to us in court 2 C.W.P. No. 4227 of 2009 today. The same is taken on record and marked as Annexure ‘C-1’. Learned State Counsel further submits that the State Government cannot be guided by the petitioners with regard to choosing site for the constructions of the bus stand. The choice of the site entirely lies with the State Government. It is further submitted that proper hearing was afforded to the petitioners and their objections under Section 5A of the Act were duly considered by the acquisition authorities. After hearing the learned counsel for the parties, were are satisfied that petitioners were given proper hearing while deciding their objections under Section 5A of the Act. Moreover, as the land acquired for the purpose of construction of the Bus Stand abuts the national Highway (Ropar-Kurali Road), therefore, it is an appropriate site for the purpose for which it has been acquired. Thus, we find no merit in the contention of the petitioners that site be shifted to some other place. The concession which the State Government has given, for allotment of space for 25 shops, we accept the same and accordingly, dispose of the Writ Petition with a direction that as and when the proposed bus stand comes up, the space so earmarked, shall be provided to those 25 persons whose shops existed at the time of issuance of notification under Section 4 of the Act. The respondents 3 C.W.P. No. 4227 of 2009 are now free to take possession of the land in dispute. Writ Petition is disposed of in the above terms.” 3. The instant petition has been filed with the averments that the petitioners have been running their respective business/trade in their respective shops but their business have come to complete standstill. They are continuing to occupy the land/plots/shops, running their business on the spot and are paying the electricity/water charges along with other municipal taxes. In support of their averments, three photographs (P-5, P-5/1 & P-5/2) have been placed on record. In paras 10 and 11 of the petition specific averments have been made that no award has been announced by the Land Acquisition Collector-respondent No. 2 despite the fact that vide order dated 24.8.2006 (P-4) a Division Bench of this Court has permitted the respondents to take possession of the land in dispute. The petitioners have claimed that the notification under Section 4 of the Act was issued on 16.11.2000 (P-1) and nothing has been done in furtherance of the said notification for executing the so called public purpose of construction of the bus stand. They have submitted that the proposed acquisition has lapsed due to efflux of time. They have further claimed that the value of the property belonging to the petitioners has diminished and it has lost its potential for re-sale. The entire exercise carried by the respondent authorities since the year 2000 with the object of construction of bus stand, has been rendered infructuous, meaningless and nugatory. The basic submission made by the petitioners is that notification under Sections 4 and 6 (P-1 & 4 C.W.P. No. 4227 of 2009 P-3) have lapsed as no award has been announced within two years from the issuance of notification under Section 6 of the Act. 4. The respondents have filed their written statement and has taken the stand that the land in question is being acquired for providing a modern efficient bus stand for City Ropar with public safety and convenience in mind. There is justification provided for acquiring land for construction of the bus stand. It is pleaded that the writ petition suffers from delay and laches and that the petitioners were parties in the earlier petition bearing CWP No. 2377of 2005 and, therefore, they have no right to file a second petition. 5. On merit, the respondents have pleaded that objections under Section 5A of the Act were called and were decided in accordance with law after affording opportunity of personal hearing on 22.1.2001. A detailed report with regard to the hearing of objections has already been sent to the Government. The crucial averment made by the petitioners in para 10 is that no award has been announced by the Land Acquisition Collector. In the corresponding para 10 of the reply the respondents have taken the stand that it is a matter of record, which in turn admits the fact that no award has been announced. 6. Mr. S.C. Nagpal, learned counsel for the petitioners has submitted that in the absence of announcement of award within a period of two years from the date of publication of declaration under Section 6 of the Act, the State is not competent to proceed with the acquisition. He has also submitted that the provisions of Section 11A of the Act stand flagrantly violated as award has to be announced 5 C.W.P. No. 4227 of 2009 within a period of two years. Another submission made by him is that if the period of two years is taken from 24.8.2006 when the Division Bench had passed the order in CWP No. 2377 of 2005 (P-4), the notifications would be deemed to have elapsed. 7. Ms. Sudeepti Sharma, learned State counsel has argued that once an earlier petition has been filed, the petitioners are estopped from filing a new petition. According to the learned counsel it is barred by the principles of resjudicata. 8. We have heard learned counsel for the parties and perused the paper book with their able assistance. It would be advantageous first to read Section 11A of the Act, which is as under:- “11A. Period within which an award shall be made. - (1) The Collector shall make an award under Section 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 6 C.W.P. No. 4227 of 2009 excluded.” 9. A perusal of the aforesaid provision reveal that the award has to be announced within a period of two years from the date of issuance of notification under Section 6 of the Act. The explanation appended to the provision shows that such period has to be excluded during which any action or proceeding to be taken in pursuance of Section 4 or 6 notifications is stayed by an order of the Court. The aforesaid provision has been held to be mandatory by Hon’ble the Supreme Court in the cases of Satendra Prasad Jain v. State of U.P., (1993) 4 SCC 369 and State of U.P. v. Rajiv Gupta, (1994) 5 SCC 686. Relevant para 5 of the judgment in Rajiv Gupta’s case (supra) reads thus:- “5. Its bare reading indicates and emphasises the limitation within which the award should be made and has been statutorily determined, namely, the Collector shall make an award within a period of two years from the date of publication of the declaration. It is common knowledge that after declaration was published, years used to roll by to make the award and the owners of the lands were put to great hardship. Parliament intended to relieve the owners of the lands from this hardship and pegging of the price prevailing as on date of publication of Section 4(1) notification. It is, therefore, a mandatory duty cast on the Land Acquisition Collector to make the award strictly in accordance with the limitation under 7 C.W.P. No. 4227 of 2009 Section 11-A. if no award is made within that period, the entire proceedings for the acquisition of the land shall lapse. In other words, on expiry of two years from the date of the publication of the declaration unless the proviso is attracted, if no award is made in the meantime, in the eye of law the proceedings initiated under Section 4(1) of the Act culminated in the declaration made under Section 6 shall stand lapsed and no proceedings, in the eye of law thereafter do exist, to take further action. 10. It is also pertinent to notice that the price of the land proposed to be acquired stood freezed on 16.11.2000 when notification under Section 4 of the Act was issued and the respondents cannot keep deferring the award for such a long period. The statutory period of two years from the date of issuance of declaration under Section 6 of the Act, has been fixed only to avoid any prejudice to the owner of the land from recovering the just and reasonable price from the acquiring State. The whole object would be defeated if the award is permitted to be announced after inordinate delay. 11. The argument of the learned State counsel is that already a petition was filed which was disposed of after concession was given in respect of the land belonging to the petitioners. Such an argument does not result into an estoppel, especially when after the petition was disposed of on 24.8.2006, no steps have been taken either for taking possession of the land nor any award has been announced. This type of situation is contemplated in Rajiv Gupta’s case (supra). By the 8 C.W.P. No. 4227 of 2009 observations made in para 5 of the judgment, the right of the land owners cannot be snatched, by pegging down the price on the date of issuance of notification under Section 4 of the Act. Accordingly, we do not find any substance in the argument and have no hesitation to reject the same. 12. It is pertinent to mention that on 11.2.2005, a Division Bench of this Court while issuing notice of motion in CWP No. 2377 of 2005, had specifically permitted announcement of award, as is evident from the perusal of the following order:- “ Notice of motion for July 07, 2005. Meanwhile, award may be passed, but dispossession of the petitioners shall remain stayed.” 13. Even if the period from January 2005 to 24.8.2006, nearing about one year and eight months, is not counted, the period of two years has elapsed and no award can now be anouced. 14. For the reasons stated above, this petition succeeds. The notification dated 16.11.2000, issued under Section 4 of the Act (P-1) and declaration dated 29.6.2001 under Section 6 of the Act (P-3) are hereby quashed. The petitioners shall be entitled to their costs which are quantified at Rs. 10,000/-. 15. The writ petition stands disposed of in the above terms. (M.M. KUMAR) JUDGE 9 C.W.P. No. 4227 of 2009 (JASWANT SINGH) September 4, 2009 JUDGE Pkapoor 10