IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 7777 of 1990 For Approval and Signature: Hon'ble MR.JUSTICE J.M.PANCHAL and Hon'ble MR.JUSTICE M.H.KADRI ============================================================ 1. Whether Reporters of Local Papers may be allowed to see the judgements? 2. To be referred to the Reporter or not? 3. Whether Their Lordships wish to see the fair copy of the judgement? 4. Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? 1 - 2 = Yes 3 - 5 = No. -------------------------------------------------------------- PRABODHBHAI C. DAVE Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: MR MANISH R BHATT for Petitioner Mr. U.A. Trivedi, AGP, for Respondent No. 1 MR SN SHELAT, learned Additional Advocate General for Respondent No. 3 -------------------------------------------------------------- CORAM : MR.JUSTICE J.M.PANCHAL and MR.JUSTICE M.H.KADRI Date of decision: 10/12/98 ORAL JUDGEMENT (Per: Panchal, J.) 1. By means of filing this petition under Article 226 of the Constitution, the petitioner has prayed to issue a writ of mandamus or any other appropriate writ, order or direction declaring that the acquisition proceedings initiated in respect of the disputed lands i.e. land bearing Survey No.879, admeasuring 2 hectares 58 Ares, and 0.5 sq.meters, as well as the land bearing Survey No.897, admeasuring 1 hectare 79 Ares and 56 sq.mtrs, situated within the revenue limits of village Samalpati, Taluka Patan, District Mehsana, have lapsed, as the Special Land Acquisition Officer and Deputy Collector, Patan, failed to make award under Section 11 of the Land Acquisition Act, 1894, ('the Act' for short) within the period of two years from the date of publication of the declaration made Section 6 of the Act. The petitioner has also prayed to declare that the award made by the Special Land Acquisition Officer and Deputy Collector, Patan, on September 21, 1990 with regard to land bearing Survey No.879 is illegal, improper and unjust. The petitioner has further prayed to issue a writ of mandamus or a writ of prohibition or any other appropriate writ, order or direction restraining the respondents, their agents and servants from making award with regard to the land bearing Survey No.897. The petitioner has further urged to issue a writ of mandamus or any other appropriate writ or order directing the respondents, their agents and servants to return possession of the land bearing Survey No.879, admeasuring 2 hectares 58 Ares, and 0.5 sq.meters, as well as the land bearing Survey No.897, admeasuring 1 hectare 79 Ares and 56 sq.mtrs situated within the revenue limits of village Samalpati, Taluka Patan, District Mehsana to the petitioner. 2. The petitioner asserts that he is the owner of the land bearing Survey No.879, admeasuring 2 hectares 58 Ares, and 0.5 sq.meters as well as the land bearing Survey No.897, admeasuring 1 hectare 79 Ares and 56 sq.mtrs situated within the revenue limits of village Samalpati, Taluka Patan, District Mehsana. On proposal being made, the State Government was satisfied that the lands belonging to the petitoner and others situated at village Samalpati, Taluka Patan, District Mehsana, were likely to be needed for public purpose of North Gujarat University Campus, Patan. Accordingly, notification under Section 4 of the Land Acquisition Act, 1894 ('Act' for short), was issued, which was published in the Government Gazette on April 22, 1987. The land owners were served with notices under Section 4 of the Act. They had filed their objections against the proposed acquisition. After considering objections, which were raised by the land owners, the Special Land Acquisition Officer and Deputy Collector, Patan, had submitted his report to the State Government as contemplated by Section 5A(2) of the Act. On consideration of the report submitted by the Special Land Acquisition Officer, the State Government was satisfied that the lands mentioned in the notification which was issued under Section 4(1) of the Act were needed for the public purpose of North Gujarat University Campus. Accordingly, declaration under Section 6 of the Act was made which was published in the official gazette on May 12, 1988. The said declaration was also published in the daily, "Gujarat Samachar", dated May 23, 1988. By the said notification the State Government had also invoked urgency clause under Section 17(1) of the Act directing the Collector to take possession of all the lands specified in Government Notification dated April 22, 1988 on expiration of fifteen days from the publication of the notice relating to the said lands under sub-section (i) of Section 9 of the Act. Copies of declaration made under Section 6 and notification issued under Section 17(1) of the Act are produced by the petitioner collectively at Annexure "A" to the petition. Interested persons were thereafter served with notices under Section 9 of the Act for the purpose of determination of compensation. Meanwhile, Special Civil Application No.2774 of 1988 was filed in the High Court by Patel Virchandbhai Madabhai and 39 others challenging the acquisition proceedings. The petition was placed for admission hearing before the Division Bench on June 3, 1988 and the Division Bench had passed the following order:- "Notice pending admission and as to interim relief returnable on 20.6.1988. In the meanwhile by way of ad-interim injunction the respondents are restrained from taking possession of the land of the petitioners till June 22, 1988. Direct service." The present petitioner had not filed any petition challenging acquisition proceedings and handed over possession of two survey numbers belonging to him on June 24, 1988. Special Civil Application No.2774 of 1998 filed by Mr. V.M. Patel and others again came up for hearing before the Division Bench comprising A.P. Ravani, J. (as he then was) and K.R. Vyas, J. on September 9, 1993. The learned counsel for the respondents raised objection to the maintainability of the joint petition by 40 individuals. Having regard to the facts of the case, the Division Bench passed the following order on September 9, 1993. "The learned counsel for the respondents have objected to the maintainability of the petition on the ground that joint petition filed by forty individual land holders is not maintainable. The challenge to the legality and validity of the acquisition proceedings on various grounds will be required to be examined from the standpoint of each individual land holder. It may be that qua particular individual certain grounds may be upheld by the Court and qua certain other individuals the grounds advanced may not be upheld by the Court. In such an eventuality, it would not be possible even for the Court to pass a final effective order. Moreover, it is submitted that it will be difficult for the respondents to meet with the case of all the petitioners effectively in a joint petition. In our opinion, there is much substance in the objection raised on behalf of the respondents. Learned counsel for the petitioners state that the petitioners are inclined to file separate petition, however, the petitioners may be granted time for filing separate petition and for making request for withdrawing this petition. Time granted. The petitioners are directed to file separate petition latest by October 3, 1993. At that time the question with regard to disposing of this petition will be considered. Interim relief granted earlier is ordered to continue till October 5, 1993." In view of the abovereferred to directions requiring the petitioners of Special Civil Application No.2774 of 1988, to file separate petitions, Special Civil Applications Nos. 12629 of 1993 and others were filed in the Court. Special Civil Application No.12629 of 1993 and other cognate matters were heard by Division Bench comprising A.P. Ravani, J. (as he then was) and N.N. Mathur, J. on August 10, 1994. The Division Bench, by judgment and order dated August 10, 1994, dismissed all the petitions but continued the interim relief upto October 10, 1994 to enable the petitioners to approach the higher forum. Thereupon, Special Leave Petition (C) Nos. 19097/94 with Special Leave Petitions (C) Nos. 19200/94 and 19080/94 were instituted before the Supreme Court. The Special Leave petitions were dismissed by the Supreme Court by an order dated November 21, 1994. Meanwhile, an award was made by the Special Land Acquisition Officer and Deputy Collector, Patan, under Section 11 of the Act with reference to land bearing Survey No.879 on September 21, 1990 and with reference to land bearing Survey No.897 on May 30, 1992. The petitioner has averred that the Special Land Acquisition Officer and Deputy Collector, Patan, did not make award within the period of two years from the date of publication of declaration under Section 6 of the Act and therefore acquisition proceedings have lapsed. The petitioner claims that he addressed a letter dated June 23, 1998 to the Special Land Acquisition Officer and Deputy Collector, Patan, asking him to hand over possession of two survey numbers to him. The said letter is produced by the petitioner at Annexure "C" to the petitioner. The petitioner was not handed over possession of the lands by the Special Land Acquisition Officer and Deputy Collector, Patan. The petitioner has, therefore, filed the present petition and claimed reliefs to which reference is made earlier. 3. Mr. S.S. Vora, Registrar, North Gujarat University, has filed affidavit in reply on behalf of respondent No.3 controverting the averments made in the petition. In the reply, it is stated that the petitioner has only 1/63 rd share approximately in the land bearing Survey No.879/2, whereas there are other co-sharers so far as the land bearing Survey No.879/1 is concerned and, therefore, the petition should not be entertained. It is averred that one Virchand Patel had challenged the acquisition proceedings in Special Civil Application No.4314 of 1990 and while dismissing the said petition the Division Bench of this Court held that there was a stay of action or proceedings contemplated by Explanation to Section 11A of the Act as a result of which the present petition should be dismissed. It is further claimed in the reply that a sum of Rs.61,932/- was deposited for acquisition of land bearing Survey No.879 by the North Gujarat University on June 19,1988 which is payable to the claimants whose interests were acquired and the final award declared on September 21, 1990, cannot be treated as having been made after the period of two years from the date of making of declaration under Section 6 of the Act. By filing the reply, the deponent of the affidavit in reply has demanded dismissal of the petition. 4. The petitioner has filed affidavit in rejoinder reiterating what is stated by him in the petition. In the rejoinder, it is claimed that the assertion made on behalf of respondent No.3 that the petitioner has meagre interest in the disputed lands is not correct. The petitioner has also filed further rejoinder mentioning in detail as to how ha has major share and interest in the lands concerned. However, for the purpose of deciding the present petition, it is not necessary to refer to the contents of rejoinders in detail and, therefore, we have not made detailed reference to those rejoinders. 5. Mr. P.R. Patel, Deputy Collector, Prant Office, Patan, has filed reply affidavit and stated that, in view of the interim relief granted by the High Court in Special Civil Application No.2774 of 1988, the awards, which were made on September 21,1990 and May 30, 1992, cannot be treated as having been made after a period of two years from the date of publication of declaration under Section 6 of the Act. It is further mentioned by Mr. Patel in his reply affidavit that, in view of the orders passed by the Court in Special Civil Application Nos.12629 of 1993 and other cognate matters, there is no substance in the contention that the awards were made after period of two years from the date of publication of declaration under Section 6 of the Act and the petition should be dismissed. 6. The petitioner has filed affidavit in rejoinder to the affidavit in reply filed by Mr.P.R. Patel and asserted that as the awards were made after period of two years from the date of publication of declaration under Section 6 of the Act, the reliefs claimed in the petition should be granted. 7. Mr. M.R. Bhatt, learned counsel for the petitioner, submitted that the petitioner had voluntarily surrendered possession of lands bearing Survey Nos.879 and 897 to the Competent Authority on June 24, 1988, whereas the Special Land Acquisition Officer and Deputy Collector had made award on September 21, 1990 with reference to land bearing Survey No.879 and another award on May 30, 1992 with reference to land bearing Survey No.897, and, as the awards were made after a period of two years from the date of publication of declaration under Section 6 of the Act, the acquisition proceedings should be treated as having lapsed. It was stressed that the petitioner had not initiated any proceedings with reference to action to be taken pursuant to declaration made under Section 6 of the Act and, therefore, the awards made on September 21,1990 and May 30, 1992 should be treated as made beyond the period prescribed by Section 11A of the Act. What was asserted was that, in other petitions, stay against dispossession and not stay against making of the award was granted by the Court and, therefore, while computing the period of two years referred to in Section 11A of the Act, the period during which the stay against dispossession was in force should not be excluded. It was also emphasized that the principle propounded by the Supreme Court in the case of Abhey Ram (Dead) by LRS. and others vs. Union of India and others, reported in (1997) 5 Supreme Court Cases 421, to the effect that stay obtained by some of the claimants prohibiting the authorities from publication of declaration under Section 6 of the Act would be applicable to others also who had not obtained stay in that behalf, should not be made applicable to the facts of the case, because, the Supreme Court was concerned with interpretation of Sections 5A(2) and 6 of the Act and not with Section 11A of the Act. It was also urged that, in absence of any averments made by the Special Land Acquisition Officer and Deputy Collector, Patan, in his reply affidavit to the effect that he was morally restrained from making awards with reference to the disputed lands, as stay was obtained by some of the claimants prohibiting the authorities from taking possession of their lands it should be held that the acquisition proceedings have lapsed. It was vehemently pleaded by the learned counsel for the petitioner that though in other matters, there was stay order or injunction against dispossession which was operative from the year 1988 to 1994, no stay or injunction was obtained by the petitioner against any of the respondents as a result the awards were made by the respondent No.2 in the year 1990 and 1992 i.e. much prior to vacation of the stay and, therefore, Explanation to Section 11A of the Act would not be applicable to the facts of the case. 8. Mr. S.N. Shelat, learned Additional Advocate General appearing for the respondents asserted that the urgency clause contemplated by Section 17(1) of the Act was invoked by the State Government vide notification dated May 12, 1988 directing the Collector to take possession of the lands specified in the Government Notification dated April 22, 1987 on expiration of 15 days from the publication of the notices relating to the said lands under sub-section (i) of Section 9 of the Act, and possession of the lands belonging to the petitioner was taken on June 24, 1988 as a result of which the lands stood vested in the State Government and, therefore, Section 11A of the Act would not apply to the facts of the case. The learned counsel for the State Government submitted that the stay was obtained by some of the claimants and, therefore, the Special Land Acquisition Officer would have been justified in not making award till the stay was vacated, and as such the awards made on September 21, 1990 and May 30,1992 cannot be treated as made after a period of two years from the date of publication of declaration under Section 6 of the Act. The learned counsel for the respondents highlighted that the stay granted by the Court was vacated when the Special Leave Petitions were dismissed by the Supreme Court on November 21, 1994 and, therefore, the awards made on September 21, 1990 and May 30,1992 cannot be treated as made after period of two years from the date of publication of declaration under Section 6 of the Act, so as to entitle the petitioner to claim the reliefs mentioned in the petition. In support of his submissions, the learned counsel for the respondents placed reliance on (i) Abhey Ram (Dead) by LRS. and others vs. Union of India and others, reported in (1997) 5 Supreme Court Cases 421; (ii) L.N. Venkatesan vs. State of Tamilnadu, reported in AIR 1997 Supreme Court 2426. (iii) Municipal Corporation of Delhi vs. Lichho Devi and others, reported in AIR 1997 Supreme Court 3474. (iv) Venkataswamappa vs. Special Deputy Commissioner (Revenue), reported in AIR 1997 Supreme Court 503; (v) Yusufbhai Noormohmed Nendoliya vs. State of Gujarat, reported in (1991) 4 Supreme Court Cases 531. (vi) Awadh Bihari Yadav vs. State of Bihar, reported in AIR 1996 Supreme Court 122. (vii) U.P. Jal Nigam, Lucknow through its Chairman and another vs. M/s. Kalra Properties (P) Ltd. Lucknow and others, reported in AIR 1996 Supreme Court 1170. (viii)Allahabad Development Authority vs. Nasiruzzaman and others, reported in (1996) 6 Supreme Court Cases 424; (ix) Satendra Prasad Jain and others vs. State of U.P. and others; reported in (1993) 4 Supreme Court Cases 369. 9. We have heard learned counsel appearing for the parties at length. 10. As possession of the lands was taken pursuant to invocaton of urgency clause under Section 17(1) of the Act in the present case, the first question which arises for consideration is whether the provisions of Section 11A of the Act would be applicable to the facts of the present case. Annexure "A" to the petition would indicate that the State Government had issued notification under Section 17(1) of the Act directing the Collector to take possession of all the lands specified in Government Notification dated April 22, 1987. It means that a direction was given to the Collector to take possession before making of the award. Pursuant to this notification, possession of the lands bearing Survey Nos. 897 and 879 belonging to the petitioner was taken on June 24, 1988. Before answering the question posed for consideration, it would be necessary to refer to provisions of Sections 6, 11, 11A, 16 and 17(1) of the Act as well as the scheme contemplated by those provisions. The relevant provisions are as under: "6. Declaration that land is required for a public purpose.- (1) Subject to the provisions of Part VII of this Act, when the appropriate Government is satisfied, after considering the report, if any, made under section 5A, sub-section (2), that any particular land is needed for a public purpose, or for a Company, a declaration shall be made to that effect under the signature of a Secretary to such Government or of some officer duly authorised to certify its order and different declarations may be made from time to time in respect of different parcels of any land covered by the same notification under section 4, sub-section (1), irrespective of whether one report or different reports has or have been made (wherever required) under section 5A, sub-section (1),- Provided that no declaration in respect of any particular land covered by a notification under section 4, sub-section (1),- (i) published after the commencement of the Land Acquisition (Amendment and Validation) Ordinance, 1967, but before the commencement of the Land Acquisition (Amendment) Act, 1984, shall be made after the expiry of three years from the date of the publication of the notification; or (kk) published after the commencement of the Land Acquisition (Amendment) Act, 1984, shall be made after the expiry of one year from the date of the publication of the notification. Provided further that no such declaration shall be made unless the compensation to be awarded for such property is to be paid by a Company, or wholly or partly out of public revenues or some fund controlled or managed by a local authority. Explanation I- In computing any of the periods referred to in the first proviso, the period during which any action or proceedings to be taken in pursuance of the notification issued under section 4, sub-section (1), is stayed by an order of a Court shall be excluded. Explantation 2- Where the compensation to be awarded for such property is to be paid out of the funds of a corporation owned or controlled by the State, such compensation shall be deemed to be compensation paid out of public revenue. (2) 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), and such declaration shall state the district or other territorial division in which the land is situate, the purpose for which it is needed, its approximate area and where a plan shall have been made of the land, the place where such plan may be inspected. (3) The said declaration shall be conclusive evidence that the land is needed for a public purpose or for a Company, as the case may be, and, after making such declaration, the appropriate Government may acquire the land in manner hereinafter appearing. 11(1) Enquiry and award by Collector.- On the day so fixed, or on any other 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 under section 9 to the measurements made under section 8, and to the value of the land at the date of publication of the notification under section 4, sub-section (1), and into the respective interest 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 authorised in this behalf. Provided further that it shall be competent 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. (2) Notwithstanding anything contained in sub-section (1), if at any state of the proceedings, the Collector is satisfied that all the persons interested in the land who appeared before him have agreed in writing on the matters to be included in the award of the Collector in the form prescribed by rules made by the appropriate Government, he may, without making further enquiry, make an award according to the terms of such agreement. (3) The determination of compensation for any land under sub-section