CWP No. 1264 of 1987 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH CWP No. 1264 of 1987 Date of decision February 4, 2010 Smt. Surjit Kaur wife of Mohinder Singh (through L.Rs.) ....... Petitioner Versus The State of Punjab and another ........ Respondents CORAM: HON'BLE MR. JUSTICE K. KANNAN Present:- Mr. P. S. Kang, Advocate for the petitioner (s). Mr. Anil Kumar Sharma, Additional Advocate General, Punjab for respondent No.1. Mr. T. S. Gujral , Advocate for respondent No.2. **** 1. Whether reporters of local newspapers may be allowed to see the judgment ? 2. To be referred to the reporters or not? 3. Whether the judgment should be reported in the digest? ****** K. Kannan, J. 1. The petitioners are the legal heirs of owner of the property. Smt. Surjit Kaur, who filed this writ petition for a declaration that the property in her possession was no longer subject to acquisition proceedings and for a restraint against the government from interfering with her possession. It is an admitted case that the property was a subject of housing scheme proposed under the Town Improvement Act, 1922 after having secured sanction under the Act. The statutory requirements of publication and pronouncement of notice appear to have been undertaken under Section 36 of the Act. The records reveal that the publication was CWP No. 1264 of 1987 2 made on 9.1.1975 and notice had also been issued, after publication under Section 9 of the Land Acquisition Act (hereinafter referred to as the 'Act') on 27.2.1976, after declaration under Section 6 of the Act. The contention of the petitioners is that the possession of the land owner continued and the government had not itself taken possession of the property in the manner contemplated under the Act. The proceedings, according to the petitioners, insofar as their land was concerned had abated abandonment and subsequent proceedings alleged to have been made under the award were no longer valid. The petitioners also placed reliance on a letter issued by the Chief Secretary to the Revenue Department, Government of Punjab referring to reduction of time limit provided under Section 6 of the Act for taking possession of the property from the period of three years to one year. This communication dated 28.12.1979 is again stated in the context of the petitioner's continuation in possession of the property to show that the acquisition proceedings stood abandoned in respect of the property. The cause for the writ petition itself was that on 25.2.1987 the staff of the Town Improvement Committee came upon the property to disturb possession which was fended off by the owner by sufficient resistance. 2. The contention on behalf of the government is that after above publication of the scheme under the Punjab Town Improvement Act, acquisition proceedings had been fully carried out and that a notice was issued under Section 9 of the Act to give an opportunity to participate in the proceedings as regards determination of compensation. She did not participate in the proceedings. An award had been passed on 1.5.1976 in terms of the notification already made and notices had been issued under Section 12 (2) and 31 (1) of the Act informing the land owner that a compensation of Rs.1207.50 had been determined. It is admitted on the part of the State through the written statement that the property was not taken possession of and the owner had caused obstruction to be made. CWP No. 1264 of 1987 3 The further contention is that the subject of acquisition which was owned was only 6 marlas of land equivalent to 180 sq.yards but she had also encroached upon over to an extent of 556 sq. yards that caused obstruction to other allottees under the scheme to take possession in respect of plot numbers 485 and 486. The property continued in her possession and if the government could not subsequently dispossess her out of the house it was only because of intervention of the Court through a writ petition. Learned counsel appearing for the State would submit that the writ petition itself is grossly belated having been instituted more than 11 years from the date of passing of the award. 3. Although, not specifically contended by the government, it is a trite proposition of law that a challenge to the acquisition proceedings cannot be urged subsequent to the passing of the award. In this case, the challenge is not for quashing of any of the notifications but for a declaration that the property is no longer subject of acquisition proceedings. The matter is to be considered in the light of statutory provisions and in the light of admission that the property had continued in the possession of the petitioner all these years. Although, learned counsel appearing for the State relied on a document of alleged taking of possession on 20.5.1976 (Annexure R-1). from the rest of the contentions of the State and their own admission that the property continued in the possession of the petitioner, it has to be only to be taken that Annexure R-1 was merely a paper delivery and no actual dispossession had been made. The document which is relied on by the petitioner is Annexure P-3 which is a letter dated 28.1.1979 that conveyed the decision of the Government of Punjab to reduce the time limit of three years to one year in the proviso to Section 6 of the Act. This letter, it must be noticed, was in a situation prior to the amending Act 68 of 1984. Although, specific details as to when the declaration under Section 6 was made is not available, it is borne out CWP No. 1264 of 1987 4 through the records that Section 9 notice was issued on 27.2.1976, the award had been passed on 1.5.1976 and Section 12 (2) notice had been issued on 17.5.1976. If possession had not been taken within one year from the date of notice under Section 4 the declaration under Section 6 itself would not be valid, as per the decision of the government of Punjab. The effect of not taking possession and the validity of declaration under Section 6 of the Act was dealt with in a decision of this Court in Parkash Singh Vs. State of Punjab in CWP No. 869 of 1981 which contained a challenge to notification under Section 4 and to a declaration under Section 6. Adverting to a situation that this decision of the government dated 28.12.1979 had also been withdrawn subsequently, the Court held that where a decision had been taken by the government and a particular benefit had been given, a subsequent decision withdrawing the same cannot operate to extinguish that right retrospectively. The Court held in that case therefore, that the property was no longer the subject of acquisition proceedings and it ought to be taken as abandoned or withdrawn. 4. It must be noticed that in that case judicial intervention by the owner and the decision came about before the award had been passed, at the stage when a declaration had been made but the declaration came to be effected without taking possession of the property. The decision of the Government as found expressed in its letter dated 28.12.1979 which was purported to have been even withdrawn subsequently, obtained a statutory recognition subsequently in the year 1984 through an amendment to the proviso to Section 6 by amending Section 68 of 1984. The importance of taking possession from the date of publication of declaration was also reaffirmed through Section 11-A through the Act 68 of 1984. The amendment mandated that the Collector should make an award within a period of two years from the date of publication of CWP No. 1264 of 1987 5 the declaration under Section 11-A of the Act. Neither of the amendments to the Land Acquisition Act carried through the amending Act 68 of 1984 applies to this case but they are stated only to bring home to the fact of about how the government viewed time limits set down unde the Act and the effect of following the respective mandates relating to the declaration and possession. Section 48 of the Act is another key provision which enables a government to forsake its right to the property and taking of delivery after withdrawal from acquisition of any land of which the possession has not been taken. In this case, although, the notifications required under the Punjab Town Improvement Act have been properly done and the proceedings of acquisition have also been carried within the respective dates which the law sets out through Section 4,6 and 11 relating to notification declaration and passing of award, one thing stands out clearly that the government never took possession of the property. 5. The arguments that the writ petition is belated would have merited acceptance if the challenge had been to quash the acquisition proceedings. On the other hand, neither the notification nor the declaration, nor indeed, the passing of the award are in challenge before this Court. The petitioner wants only a declaration that the property is not the subject of acquisition under the provisions of the Act. Such a declaration however, cannot be granted in view of the finality of the award but in my view, the interest of justice would be best met if the government is ordered to release the property of the petitioners alone, namely the property in khewat No.123, Khatoni No.172, Khasra No.4/22 of area of 6 marlas. The government contends that the petitioner is keeping an excess of land of 556 sq. yards and has been causing obstruction to the allotment of plots No.485 and 486. The government is entitled to take possession of such property held in excess of 6 marlas and the petitioner shall not be entitled to plead any limitation or adverse possession against the CWP No. 1264 of 1987 6 government, in view of the fact that the continuation of possession became possible only by virtue of the interim order passed by this Court in the writ petition and the continuation of such interim order till the final disposal of the case. In my view, forfeiting the property of the petitioners will not be just especially in a case where there is admittedly a building in the property but the acquisition proceedings, there is no reference even to the existence of the building. Even the determination of compensation made after notice under Section 9 appears to have been taken up without adverting to the actual existence of the house. Further, the scheme that was floated itself is only for housing purposes and there will be no justice in acquiring the property, demolishing the same and again making it possible for giving such property to yet another person. It is also seen from the records that there is also a scheme for rehabilitation of oustees and the petitioners had also applied for allotment under such a scheme on 29.11.1979. The plea for alternative allotment had been rejected as time barred. This only shows that the petitioners have not come to any benefit for retaining the property, since even the compensation had not been received by the petitioners from the government. 6. Under the circumstances, the writ petition is allowed with the following modifications in the reliefs prayed for: i) The government shall withdraw from the acquisition the property owned by the petitioner viz., the property in Khewat No.123 Khatoni No.172 Khasra No.4/22 of an area of 0.6 marlas in District Rupnagar. ii) The petitioner shall not be entitled to any compensation by withdrawal of the notification of the government from such acquisition in the manner contemplated under Section 48 (2) of the land acquisition. iii) The petitioner shall voluntarily deliver an extent of 556 sq. yards alleged to have been encroached by the petitioners beyond an extent of 180 sq. yards covered in 6 marlas of land which the petitioners own, if it is not already done. The government shall CWP No. 1264 of 1987 7 be at liberty to take possession of the such excess land purported to be falling within plot Nos.485 and 486. The possession could be taken with the aid of revenue officials without resort to the Court. However, if any obstruction is made for taking possession of the excess land, the government shall be at liberty to apply to the Court to enforce this direction and the costs of recovery shall be collected from the petitioners. 7. The writ petition is allowed with the above directions. There shall, however, be no direction as to costs. (K. KANNAN) JUDGE February 4 , 2010 archana