Amended CWP No. 960 of 1990 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Amended CWP No. 960 of 1990 Date of decision: 03.08.2010 Gobind Singh (deceased through Legal Representatives) and others ….. PETITIONERS VERSUS State of Haryana and others ….. RESPONDENTS CORAM:HON’BLE MR. JUSTICE JASBIR SINGH HON’BLE MR. JUSTICE AUGUSTINE GEORGE MASIH Present: Mr. Adarsh Jain, Advocate, for the petitioners. Mr. Kamal Sehgal, Addl. A.G. Haryana, for the respondents. *** AUGUSTINE GEORGE MASIH, J. Through this writ petition, the petitioners, who were owners of land measuring 13 Kanals 2 Marlas situated within the revenue estate of Jharsaintly, Tehsil Ballabhgarh, District Faridabad was acquired by the respondents, have challenged notification dated 17.12.1981 (Annexure P- 3) issued under Section 4 of the Land Acquisition Act, 1894 (hereinafter referred to as 'the Act'), notification dated 29.04.1985 (Annexure P-7) issued under Section 6 of the Act, Award dated 28.04.1987 (Annexure P-8) Amended CWP No. 960 of 1990 2 and the report dated 28.04.1987 (Annexure P-9) about the delivery of possession of the land in dispute praying therein for quashing of the same and for issuance of any other writ, order or direction. It has been pleaded by the petitioners that State of Haryana- respondent No. 1 issued notification under Section 4 of the Act in the year 1971-72 for acquiring about 390 acres of land including the aforementioned land of the petitioners for urban development purposes. The process of acquisition was not completed and the notification lapsed. Thereafter, State of Haryana issued a fresh notification dated 17.12.1981 (Annexure P-3) under Section 4 of the Act, whereby 389.31 acres of land situated within the revenue estate of Jharsaintly was sought to be acquired for the development and utilization of land as Industrial area in Sector 25, Part-I of Faridabad-Ballabhgarh Controlled Area. In this notification, land of the petitioners aforementioned was also included. The petitioners filed objections under Section 5-A of the Act on 14.01.1982 (Annexure P-4). The same were summarily rejected by the respondents leading to the issuance of notification dated 04.02.1983 (Annexure P-5) under Section 6 of the Act. The petitioners filed CWP No. 1891 of 1983 titled as Gobind Singh and others vs. State of Haryana and others for quashing of the notifications issued under Sections 4 and 6 of the Act. This writ petition was decided by this Court vide judgment dated 23.01.1984, whereby notification dated 04.02.1983 (Annexure P-5) issued under Section 6 of the Act qua the petitioners was quashed and the petitioners were given an opportunity to file fresh objections under Section 5-A of the Act within 30 days of the date of order and the objections shall be disposed of on merits in accordance with law. Liberty was granted to the petitioners to challenge Amended CWP No. 960 of 1990 3 the notification issued under Section 4 dated 17.12.1981 and notification, if any, issued under Section 6 of the Act subsequently by the Government on deciding the objections preferred by the petitioners under Section 5-A of the Act. The petitioners submitted an application requesting the Land Acquisition Collector-respondent No. 2 to decide the objections already filed by the petitioners on 14.01.1982 after giving an opportunity to the petitioners to produce evidence. Respondent No. 2 afforded the opportunity to the petitioners to produce evidence on 21.03.1984 in support of their objections filed under Section 5-A of the Act. The petitioners produced documentary evidence to show that the land of the petitioners measuring 13 Kanals 2 Marlas (1.64 acres) had already been covered by construction of factory and some of the lands were reserved for the extension of the industrial units, on which eucalyptus trees were in existence and entries to this effect also existed in the revenue record, which was also produced before the Land Acquisition Collector. The objections, as filed by the petitioners, were not accepted by the State Government and notification under Section 6 of the Act was issued on 29.04.1985 (Annexure P-7). No land of the petitioners was exempted. Thereafter, an Award dated 28.04.1987 (Annexure P-8) was passed by respondent No. 2. The present writ petition was filed by the petitioners, which came up for hearing before this Court on 29.01.1990 when dispossession of the petitioners was stayed. Challenge to the notification under Section 6 of the Act has been posed by the petitioners on the ground that this notification had been issued after the enforcement of Central Act No. 68 of 1984 which had amended the Land Acquisition Act, 1894. As per amended Section 6 (2), a Amended CWP No. 960 of 1990 4 notification under Section 6 of the Act issued after the commencement of the Central Act No. 68 of 1984 is required to be published in two daily newspapers having wide circulation in the locality, in which the land, which was sought to be acquired, was situated. One of such two newspapers is to be in the regional language. It is also mandatory that the Land Acquisition Collector is to cause public notice of the substance of such declaration to be given at convenient places in the locality, in which the land is situated, which has not been done. Another ground, which has been pressed into service by the petitioners, is that the notification under Section 6 of the Act has been issued beyond the period of limitation prescribed under law. It has been pleaded that the notification under Section 4 of the Act was issued on 17.12.1981 and the said notification stood lapsed as three years expired on 16.12.1984, whereas the notification under Section 6 of the act has been issued on 29.04.1985. All further proceedings taken thereunder are thus illegal and liable to be quashed and cannot be made the basis for making an Award under Section 11 of the Act. The Award dated 28.04.1987 given under Section 11 of the Act has been challenged on the ground that the Award could be announced by the Land Acquisition Collector within a period of two years from the date, on which notification under Section 6 of the Act could have been issued i.e. 16.12.1986 as the notification under Section 6 of the Act could have been issued on or before 16.12.1984 and thus the Award could have been passed on or before 15.12.1986. It has been pleaded further that the notice under Section 9 of the Act has not been served on the petitioners in accordance with the provisions of Section 45 of the Act, which was mandatory and thus, the Award deserves to be quashed, nor notice was served on the petitioners even under Section 11 (2) and 12 (2) of the Amended CWP No. 960 of 1990 5 Act. On the part of the respondents, the grounds, as raised in the writ petition, have been controverted. It has been pleaded that after the issuance of the notification under Section 4 of the Act dated 17.12.1981, objections under Section 5-A of the Act preferred by the petitioners were duly considered by the competent authority and finding no substance therein, declaration under Section 6 of the Act was issued on 04.02.1983. These notifications were challenged by the petitioners through a writ petition, which was decided by this Court on 23.01.1984, wherein liberty was granted to the petitioners to file fresh objections under Section 5-A of the Act, which were heard on 21.03.1984 and again not accepted by the competent authority. Declaration under Section 6 of the Act was issued on 29.04.1985 by way of notification as the land was needed for a public purpose. The substance of the notification under Section 6 of the Act was published in two daily newspapers i.e. “The Tribune” English daily newspaper dated 10.05.1985 and Hindi daily newspaper “Dainik Tribune” dated 09.05.1985. The copies of the substance of notification under Section 6 of the Act were pasted at various public places i.e. office of the Land Acquisition Collector, Urban Estates, Haryana, Faridabad, Director, Urban Estates Haryana, Deputy Commissioner's office, Estate Office, Haryana Urban Development Authority, Faridabad, Halka Patwari Office, Tehsil Office. The substance of the notification was also announced loudly by beating the empty drums on the spot and locality. After completion of all required procedures and formalities as per the provisions of the Act, the Land Acquisition Collector issued notice under Section 9 of the Act on 24.03.1987 for submitting the claim to all the land owners/interested persons and the claims were to be heard on 10.04.1987. The petitioners Amended CWP No. 960 of 1990 6 knowingly refused to receive the notice as such, copy of the notice was pasted on the wall of the house of the petitioners and the spot by Baldev, Peon of the Office of the Land Acquisition Collector on 25.03.1987. The petitioners did not file any claim under Section 9 of the Act. On the said date, the land owners/interested persons were heard. The Land Acquisition Collector also issued all necessary notices to the petitioners under Sections 11 (2), 12 (1), 12 (2) of the Act before the acquisition and after the acquisition of the land. The Land Acquisition Collector also informed the petitioners vide notice dated 27.04.1987 in respect of the announcement of the Award of the land in question. It has also been pleaded that the Award was announced within the statutory period of limitation as per the amended provisions of the Act and the possession of the acquired land was also taken by respondent No. 2-Land Acquisition Collector after offering the amount of compensation to the petitioners vide Rapat Roznamcha Waqyati No. 345 dated 28.04.1987. The possession of the acquired land was handed over to the Estate Officer, Haryana, Urban Development Authority, Faridabad on the same day vide Rapat Roznamcha Waqyati No. 345 dated 28.04.1987. The acquired land, after announcing of the Award and taking of the possession, vested in the Government free from all encumbrances under Section 16 of the Act. It has also been pleaded that the petitioners have approached this Court after the passing of the Award and, therefore, the present writ petition is not maintainable. It was accordingly prayed that the present writ petition deserves to be dismissed. In the light of the above pleadings, counsel for the petitioners has, with vehemence, argued that notification issued under Section 6 of the Amended CWP No. 960 of 1990 7 Land Acquisition Act, as has been issued beyond the period of three years, is in violation of the first proviso to Section 6 (1) of the Act. He submits that for declaration to be issued under Section 6 of the Act, time limit has been prescribed under the first proviso. The period, so provided under the proviso, is mandatory and cannot be extended. He submits that the notification under Section 4 of the Act was issued on 17.12.1981 and thus, the declaration under Section 6 of the Act could have been made on or before 16.12.1984. Since the said declaration has been made and notification issued on 29.04.1985, long after the expiry of three years from the date of issuance of notification under Section 4 of the Act, the notification under Section 4 of the Act stood lapsed and, therefore, all subsequent proceedings arising thereafter were rendered illegal and deserve to be quashed. In support of this contention, he relies upon the judgment of the Hon'ble Supreme Court in the case of Padma Sundara Rao (dead) and others vs. State of Tamil Nadu and others, (2002) 3 Supreme Court Cases 533. On similar grounds, he submits that after the issuance of the notification under Section 6 of the Act, the Award could have been passed by the Government on or before 15.12.1986, whereas the Award has been passed by the respondents on 28.04.1987. Thus, the Award also is beyond the period of limitation and deserves to be quashed. On the other hand, counsel for the respondents has submitted that after the issuance of notification under Section 4 dated 17.12.1981, notification under Section 6 of the Act was issued on 04.02.1983, which was challenged by the petitioners in CWP No. 1891 of 1983 for quashing of the acquisition proceedings. The writ petition filed by the petitioners was disposed of by this Court vide order dated 23.01.1984 granting the Amended CWP No. 960 of 1990 8 petitioners liberty to file objections under Section 5-A of the Act within 30 days from the date of the decision. However, the notification dated 04.02.1983 issued under Section 6 of the Act was quashed by this Court. In compliance with the order passed by this Court, the petitioners submitted an application requesting the Land Acquisition Collector to decide the objections already filed by the petitioners on 14.01.1982. The petitioners were heard on 21.03.1984. The appropriate authority, after hearing and considering the objections under Section 5-A of the Act filed by the petitioners, did not accept the same and made a declaration under Section 6 of the Act vide notification dated 29.04.1985. He submits that period, during which the writ petition was pending before this Court, needs to be excluded while computing the period within which the notification under Section 6 of the Act was required to be issued under the Land Acquisition Act. However, he was unable to inform the Court as to whether there was any stay granted by this Court in the writ petition preferred by the petitioners, which was disposed of by this Court vide order dated 23.01.1984. His further submission is that the writ petition is belated and in any case, filed after the passing of the Award and the same is not maintainable in the light of the judgments passed by the Hon'ble Supreme Court. We have heard the counsel for the parties and have gone through the records of the case. The decision of this case hinges upon the question as to whether there was any stay granted by this Court during the pendency of CWP No. 1891 of 1983 titled as Gobind Singh and others vs. State of Haryana and others preferred by the petitioners. Accordingly, records of Amended CWP No. 960 of 1990 9 the said writ petition were called for and perused. CWP No. 1891 of 1983 came up for hearing before this Court on 19.04.1983 when the following order was passed:- “ Additional affidavit has been filed to the effect that the petitioners did not receive any notice or information with regard to the objections filed by them under Section 5-A of the Land Acquisition Act, 1894, nor did they appear before the Collector and were further denied an opportunity to lead evidence in support of the said objections. Notice of motion at this stage to the Advocate General, Haryana, for May 3, 1983. Filing of written statement and documents, if any, be completed in the Registry. To come up on May 17, 1983. Stay dispossession.” This order of staying dispossession of the petitioners continued till the disposal of the writ petition by this Court vide order dated 23.01.1984 quashing the notification dated 04.02.1983 issued under Section 6 of the Act qua the petitioners granting liberty to the petitioners, which reads as follows:- “ Mr. B.L.Bishnoi, learned Additional Advocate General, states at the Bar that notification dated 4th February, 1983, issued under Section 6 of the Land Acquisition Act, 1894 (hereinafter referred to as 'the Act') be quashed qua the land of the petitioners only, that the petitioners would be entitled to file Amended CWP No. 960 of 1990 10 objections under Section 5-A of the Act within 30 days from today and that the objections of the petitioners shall be disposed of on merits in accordance with law and it is thereafter that the Government would decide to issue a notification under Section 6 of the Act, if any. In view of what is stated by Mr. Bishnoi, the learned counsel for the petitioners, states that this petition be dismissed as withdrawn. We order accordingly. Before parting with the order, it may be made clear that if after the decision of the objections, the Government issues a fresh notification under Section 6 and the petitioners challenge its legality, they they would also be entitled to question the legality of Section 4 notification.” Section 6 of the Act reads as follows:- “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 authorized to certify its orders 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 Amended CWP No. 960 of 1990 11 whether one report or different reports has or have been made (wherever required) under Section 5A, sub-section (2): 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 (1 of 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 (ii) 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 1.-In computing any of the periods referred to in the first proviso, the period during which any action or proceeding 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. Explanation 2.-Where the compensation to be awarded for such property is to be paid out of the funds of a Corporation Amended CWP No. 960 of 1990 12 owned or controlled by the State, such compensation shall be deemed to be compensation paid out of public revenues. (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 date 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 situated, 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.” A perusal of the above would show that the appropriate Government having satisfied itself after considering the report, if any, made under Section 5-A 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. First Proviso to sub-section (1) of Section (6) prescribes the time limit within which declaration under Section 6 is to be made in respect of Amended CWP No. 960 of 1990 13 any particular land covered by a notification under Section 4 sub-section (1). Clause (i) of the first proviso to Section 6 would cover the present case, which prescribes a period of three years within which declaration under Section 6 can be made from the date of publication of the notification under Section 4 (1) of the Act. However, Explanation-1 has been provided, according to which, the period during which any action or proceedings to be taken in pursuance of the notification under Section 4 sub-section (1), is stayed by an order of a Court, shall be excluded in computing any period referred to in the first proviso meaning thereby that in case of a stay granted by any Court, the said period has to be excluded and not taken into consideration for computing the period as provided in clause (i) of first proviso to Section 6 (1) of the Act. This is what has been held by the Hon'ble Supreme Court in the case of Padma Sundara Rao (dead) and others (supra), which has been referred to by the counsel for the petitioners. Applying the provisions of Section 6 (1) of the Act and the ratio of the aforesaid judgment of the Hon'ble Supreme Court to the facts of the present case, would lead to rejection of the contention of the counsel for the petitioners. In the present case, notification under Section 4 was issued on 17.12.1981 and Section 6 notification was issued on 04.02.1983. These notifications were challenged by the petitioners in CWP No. 1891 of 1983, wherein dispossession of the petitioners was stayed by this Court vide order dated 19.04.1983 . The said stay order continued till the disposal of the writ petition vide order dated 23.01.1984. In view of the Explanation-1 which is applicable to first proviso to Section 6 (1) of the Act, the period from 19.04.1983 till 23.01.1984 will have to be excluded in computing the period referred to in the first proviso to Section 6 (1) of the Act, according to Amended CWP No. 960 of 1990 14 which, declaration under Section 6 may be made before the expiry of three years from the date of publication of the notification under Section 4 (1) of the Act. After the quashing of the notification dated 04.02.1983 issued under Section 6 of the Act by this Court vide order dated 23.01.1984 in CWP No.1891 of 1983, preferred by the petitioners, fresh notification under Section 6 was issued on 29.04.1985, after complying with the order passed by this Court, which is well within the time i.e. three years by excluding the period during which stay was in operation when the writ petition was pending in this Court. Award has been passed on 28.04.1987, which is within a period of two years from the date of issuance of the declaration under Section 6 i.e. 29.04.1985. Thus, notification under Section 6 of the Act and the Award under Section 11 of the Act have been passed in accordance with law and accordingly, the writ petition deserves to be dismissed. In this writ petition, the challenge has been made to the Award dated 28.04.1987 (Annexure P-8). The present writ petition was preferred by the petitioners, which came up for hearing before this Court for the first time on 29.01.1990. Firstly, there is a delay in approaching this Court and secondly, it is by now well settled that no writ petition would be competent after passing of the Award because possession of the land free from all encumbrances was taken and it is deemed to be vested in the State Government. In this regard, reliance may be placed on the judgments of the Hon'ble Supreme Court in the cases of Municipal Corporation of Greater Bombay vs. Industrial Development and Investment Company (P) Limited, (1996) 11 SCC 501; Municipal Council, Ahmednagar vs. Shah Hyder Beig, (2000) 2 SCC 48; C.Padma vs. Deputy Secretary to Amended CWP No. 960 of 1990 15 the Government of Tamil Nadu, (1997) 2 SCC 627; Star Wire (India) Ltd. vs. State