C.R.No.5185 of 2010 #1# IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH Date of decision: 27.5.2011 C.R.No.5185 of 2010 Punjab Water Supply and Sewerage Board ….Petitioner Vs. Ranbir Singh and others ….Respondents AND C.R.No.5186 of 2010 Punjab Water Supply and Sewerage Board ….Petitioner Vs. Gurnam Singh and others ….Respondents CORAM: HON’BLE MR. JUSTICE JASWANT SINGH Present: Mr. V.K. Kaushal, Advocate for the petitioner. Mr. R.S. Athwal, Advocate for the respondents. Jaswant Singh, J This order shall dispose of two petitions bearing C.R.No.5185 of 2010 and C.R.No.5186 of 2010 since common questions of law and facts are involved in the same and brief facts are being taken from C.R.No.5185 of 2010. Petitioner-Punjab Water Supply and Sewerage Board has approached this Court under Article 227 of the Constitution praying for setting aside the impugned order dated 3.5.2010 passed by the learned C.R.No.5185 of 2010 #2# Additional District Judge, Jalandhar whereby the petition purported to have been filed under Section 48 of the Land Acquisition Act, 1894 (hereinafter to be referred as “1894 Act”) on a reference made by the Land Acquisition Collector has been allowed and the Collector was directed to assess compensation within a period of three months for payment to the claimants- land owners on account of lapse of earlier notifications issued under Section 4 and 6 of the Act of 1894. Brief facts of the case are that a Notification dated 18.1.1996 under Section 4 of the 1894 Act was issued to acquire the land belonging to the respondent No.1-claimant and thereafter a declaration under Section 6 of the 1894 Act was also issued on 10.6.1996. No award was passed by the Collector within the stipulated period of two years and as such the Notification lapsed in view of Section 11-A of the 1894 Act. Thereafter, another notification dated 13.1.2001 under Section 4 of the 1894 Act followed by a declaration dated 10.2.2004 under Section 6 of the 1894 Act was issued but again no award came to be passed within a period of two years and as such the Notification lapsed. Subsequently, on third occasion, Notification dated 21.4.2004 under Section 4 followed by a declaration under Section 6 of the 1894 Act on 22.11.2004 were issued and an award was passed granting compensation to the claimants-land owners. Aggrieved against the amount of compensation awarded by the learned Collector, the landowners approached the learned Reference Court and in addition thereto, application under Section 48 (2) of the 1894 Act was filed by the landowners before the Collector for claiming compensation on account of lapse of Notification from the period from 18.1.1996 to 10.2.2004. Application was opposed by the present petitioner on the ground C.R.No.5185 of 2010 #3# that such compensation could be claimed only if the Government withdrew from the acquisition and in the present case, there is no such withdrawal from the Government and the Notification was lapsed only due to non- assessment of compensation by the Collector and as such the landowners- claimants were not entitled for the benefit of provisions of Section 48 (2) of the 1894 Act. The Collector outrightly rejected the claim of such compensation by passing a speaking order wherein it was held that the provisions contained in Section 48(2) of the 1894 Act were not attracted since on previous occasions the Department had not withdrawn from the acquisition rather the proceedings had lapsed due to non-finalisation of the complete procedure within the stipulated time. Thereafter, the landowners approached the court of learned Additional District Judge, Jalandhar, who vide the impugned orders dated 3.5.2010 held that the landowners are entitled to claim compensation under Section 48 (2) of the 1894 Act as the Collector did not take any step to assess the compensation within a period of two years from the date of Notification/declaration and as such, that will amount to “withdrawal” of Notification, and further directed the Collector to assess the compensation within a period of three months for payment to the respondent-claimants considering the lapse of notification under Section 4 and 6 of 1894 Act dated 18.1.1996 , 10.6.1996, 30.1.2001 and 10.2.2004 as having been withdrawn. Hence the present two revision petitions. Learned counsel for the petitioner submits that the matter is no longer res integra and in view of the judgment of Hon'ble Supreme Court reported as Rajinder Singh Bhatti v. State of Haryana, 2009(0) AJJEL- SC 42891, the impugned order cannot be sustained and the same is liable to be set aside. C.R.No.5185 of 2010 #4# On the other hand, learned counsel for the respondents has vehemently argued that after passing of the impugned order dated 3.5.2010 by the learned Additional District Judge, the Collector has assessed the rate of compensation and such orders have not been challenged, thus, no effective relief can be granted to the petitioners. He, however, has not been able to refute the proposition of law settled by Hon'ble the Supreme Court in Rajinder Singh Bhatti's case (supra). After hearing learned counsel for the parties and perusing the paper book, this court is of the opinion that the matter is squarely covered by the judgment in Rajinder Singh Bhatti's case (supra). The contention that in compliance of the orders dated 3.5.2010, the compensation has been assessed by the Collector and such orders have not been challenged is of no consequence since the right to claim compensation under Section 48 (2) by the respondents-claimants has been decided vide the impugned order dated 3.5.2010, which is liable to be set aside in view of the settled law. Consequently, the assessment of compensation by the Collector in compliance of the impugned orders would also be a nullity. Relevant Paras 15,24, 25,26,27,28 & 29 of the aforesaid judgment of Hon'ble Supreme Court reads as under: “15. On the contentions urged, two points arise for our consideration: (one) Whether in view of the decision of the government in not approving the award proposed by the Collector, the award could not be made within the period of two years from the date of publication of declaration (final notification under Section 6) and the acquisition of land lapsed, would such lapse of acquisition proceedings amount to withdrawal from the acquisition by the State Government under Section 48(1) of the Act ? C.R.No.5185 of 2010 #5# (two) Whether the decision of the State Government for withdrawal from the acquisition under Section 48 (1) is mandatorily required to be published in the official gazette ? Re: point (one) 16 to 23. xx xx 24. In the context of Section 48, the word “withdraw” is indicative of the voluntary and conscious decision of the government for withdrawal from the acquisition; statutory lapse under Section 11-A is entirely different. The object of Section 11-A is to arrest delay in making award. An obligation is cast on the Collector under Section 11-A to make the award within the time prescribed therein failing which statutory consequence follows namely, acquisition proceedings lapse automatically. This Court in Abdul Majeed said: “The word ‘withdraws’ would indicate that the Government by its own action voluntarily withdraws from the acquisition; the Government has necessarily to withdraw from the acquisition, in other words, there should be publication of the withdrawal of the notification published under Section 4(1) and the declaration published under Section 6 by exercising the power under Section 48 (1). Sub-section (2) of Section 48 would then apply. In this case, admittedly, the Government had not exercised the power under Section 48(1) withdrawing from the notification under Section 4(1) or the declaration under Section 6. The statutory lapse under Section 11-A is distinct different from voluntary act on the part of the Government. Therefore, it must be by withdrawal of the notification by voluntary act on the part of the State under Section 48(1). Under these circumstances, the appellant is not entitled to avail of the remedy of sub-section (2) of Section 48.” 25. As a matter of fact, the Land Acquisition Collector followed Abdul Majeed and held that the claim of the appellants under Section 48(2) was not maintainable. 26. As noticed above, the Land Acquisition Collector moved the government seeking its approval for the proposed award. This was imperative as per the first proviso to Section 11. The government considered the matter and did not approve the proposed award. When no such approval was granted by the government, the Collector could not have made the award and in fact he did not. As a result thereof, the acquisition proceedings lapsed. The lapse of acquisition proceedings in the circumstances under Section 11-A cannot and would not C.R.No.5185 of 2010 #6# amount to withdrawal from acquisition by the government under Section 48(1). We answer the point (one) in negative. re : point (two) 27. The question now needs to be considered is: whether the decision of the Government for withdrawal of acquisition under Section 48(1) is required to be published in official gazette ? It is true that Section 48 does not in express terms require the decision of the government for withdrawal of acquisition to be published in the official gazette. In Abdul Majeed, this Court has held that there should be publication of the withdrawal of the notification published under Section 4(1) and declaration under Section 6 by exercising power under Section 48(1). Even on first principles, such requirement appears to be implicit. The Act provides for the publication of notification and declaration under Sections 4 and 6 of the Act in official gazette. Obviously the withdrawal from land acquisition proceedings by taking resort to Section 48(1) of the Act also must be in the like manner. As a matter of fact, this aspect is no more res integra. In the case of Larsen & Toubro Ltd. vs. State of Gujarat And Ors., (1998) 2 SC 536; 1998 (4) SCC 387], the identical contentions which have been advanced before us by the senior counsel were raised in that case. Section 21 of the General Clauses Act, 1897 was also pressed into service there. This Court considered: “It was submitted by Mr. Salve that Section 48 of the Act did not contemplate issue of any notification and withdrawal from the acquisition could be by order simpliciter. He said that Sections 4 and 6 talked of notifications being issued under those provisions but there was no such mandate in Section 48. It was thus contended that when the statute did not require to issue any notification for withdrawal from the acquisition, reference to Section 21 of the General Clauses Act was not correct. Section 21 of the General Clauses Act is as under: “21. Power to issue, to include power to add to, to amend, vary or rescind, notifications, orders, rules or bye-laws.—Where by any Central Act, or Regulation, a power to issue notifications, orders, rules, or bye-laws is conferred, then that power includes a power, exercisable in the like manner and subject to the like sanction and conditions (if any) to add to, amend, vary or rescind any notifications, orders, rules or bye-laws so issued.” Mr. Salve said that Section 21 expressly referred to the powers being given to issue notifications etc. under an Act or C.R.No.5185 of 2010 #7# Regulation and under this that power included power to withdraw or rescind any notification in a similar fashion. It was therefore submitted that when Section 48 did not empower the State Government to issue any notification and it could not be read into that provision that withdrawal had to be issued by a notification. His argument, therefore, appeared to be that on correct interpretation of Section 21 of the General Clauses Act before reaching the stage of Section 48, the State Government could withdraw notifications under Sections 4 and 6 of the Act by issuing notifications withdrawing or rescinding earlier notifications and that would be the end to the acquisition proceedings. We do not think that Mr. Salve is quite right in his submissions. When Sections 4 and 6 notifications are issued, much has been done towards the acquisition process and that process cannot be reversed merely by rescinding those notifications. Rather it is Section 48 under which, after withdrawal from acquisition is made, compensation due for any damage suffered by the owner during the course of acquisition proceedings is determined and given to him. It is, therefore, implicit that withdrawal from acquisition has to be notified. Principles of law are, therefore, well settled. A notification in the Official Gazette is required to be issued if the State Government decides to withdraw from the acquisition under Section 48 of the Act of any land of which possession has not been taken”. 28. In view of the legal position exposited by this Court in the case of Larsen & Toubro Ltd., with which we respectfully agree, we hold, as it must be, that decision of the government for withdrawal from acquisition has to be published in the official gazette. We answer point (two) in affirmative. 29. In so far as present case is concerned, firstly, there is no decision by the government for withdrawal from the acquisition. Even if we assume for the argument sake that such decision was taken on the file, since such decision has not been published in the official gazette, there is no withdrawal from the acquisition by the State Government within the meaning of Section 48(1) of the Act. The application under Section 48(2) C.R.No.5185 of 2010 #8# of the Act was, therefore, rightly held to be not maintainable.” Keeping in view the ratio of the judgment of Hon'ble Supreme Court in Rajinder Singh's case (supra) as referred above, in the present cases it cannot be entertained that there was any conscious withdrawal from acquisition by the Government of the earlier acquisitions initiated in the years 1996 and 2001 entitling any claim for compensation under Section 48 (2) of 1894 Act, moreso during the proceedings for determination of compensation relating to completed subsequent acquisition of the year 2004. In view of the aforesaid discussion, both the petitions are allowed and the impugned orders dated 3.5.2010 passed by the learned Additional District Judge, Jalandhar along with orders passed in compliance by the learned Collector assessing the compensation under Section 48(2) of 1894 Act, are set aside. May 27, 2011 ( JASWANT SINGH ) manoj JUDGE