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Rajinder Singh Bhatti & Ors vs State Of Haryana & Ors on 3 March, 2009

Supreme Court of India
Rajinder Singh Bhatti & Ors vs State Of Haryana & Ors on 3 March, 2009
Bench: D.K. Jain, R.M. Lodha
                                                             REPORTABLE


               IN THE SUPREME COURT OF INDIA

                CIVIL APPELLATE JURISDICTION

             CIVIL APPEAL NOS.4117- 4118 OF 2001


Rajinder Singh Bhatti and Ors.                     ... Appellants
                                 Versus
State of Haryana and Ors.                         ..Respondents

                                 WITH

                      C. A. Nos.7019-7020/2001

Ram Kumar and Ors.                                ... Appellants
                                 Versus
State of Haryana and Ors.                              ...
Respondents

                      C. A. Nos.7023-7024/2001

Sanjeev Gupta and Anr.                           ...   Appellants
                                 Versus
State of Haryana and Ors.                        ...
Respondents

                      C.A.Nos.7321-7322/2001

Suraj Bhan and Ors.                              ...   Appellants
                                 Versus
State of Haryana and Ors.                        ...Respondents

                      C.A.Nos. 7323-7324/2001

Rajinder Singh and Ors.                          ...   Appellants

                                 Versus
State of Haryana and Ors.   ...
Respondents




                                  2
                     C.A. Nos. 1380-1381 /2009
           (Arising out of S.L.P.(c)Nos.18030-18031/2001

Daleep Chand and Ors.                                  ...   Appellants
                                Versus
State of Haryana and Ors.                              ...Respondents

                            C.A.Nos. 1382-1383 /2009
             (Arising out of S.L.P.(c) Nos.18231-18232/2001)

Tikka Sahib Singh and Anr.                            ...    Appellants
                                Versus
State of Haryana and Ors.                              ...
Respondents


                          JUDGEMENT

R.M. Lodha, J.

Leave granted in SLP ) Nos.18030-18031/01 and SLP

) Nos.18231-18232/2001.

2. This judgment will dispose of a group of fourteen civil

appeals by special leave. Since common questions of law have been

involved in all these appeals, it is appropriate to deal with and decide

them by a common judgment.

3. We will confine ourselves only to the facts of Civil

Appeals 4117-4118/2001 for the facts of this appeal are similar to the

facts of the other appeals comprised in this group.

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4. Rajinder Singh (1st appellant) is the owner of the land

comprising in Khewat No. 609/793 Khasra No.125/21/3(0-9), 127/1/2

(2-4), 2(8-0), 3(8-18), 8(5-0), 9/1(6-12), 125/2(8-0), 23(8-0), 24(4-10)

total admeasuring 51 kanals 3 marlas. Arkinder Pal Singh (2nd

appellant) owns the land in Khewat No. 610/794 Khasra No.125/2/3

(1-5), 3/2(2-9), 7/2(2-0), 8(8-0), 9/1(1-0),13(8-0), 14(8-0), 15(4-10),

17(8-8), 18(8-0) total admeasuring 51 kanals 12 marlas. They also

jointly own land comprising in Khewat No.611/795 Khasra

No.124/14/2(5-16), 15/2(5-11), 30/2(0-8), 31(0-8), 125/9/2(6-4),

11/1/2/(1-7), 19(8-0), 20(7-19), 21/1(4-4), 124/16/1(3-10), 16/4(1-16),

125/1/2(4-8), 12(8-0) total admeasuring 57 kanals 6 marlas. The

total land owned by the appellants is 160 kanals 16 marlas situate

in Jagadhri, District Yamuna Nagar, Haryana.

5. The government of Haryana through Urban Estate

Department, at the instance of Haryana Urban Development

Authority (`HUDA’) sought to acquire the land ( 326.43 acres) in

Sector 20, Jagadhri, for the public purpose namely; the development

and utilization of land for residential, institutional, commercial,

communication, transport and wholesale market etc. A preliminary

notification under Section 4 of the Land Acquisition Act, 1894 (for

short `the Act’) was issued in this regard that was published in the

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official gazette on March 7, 1996. The aforementioned land of the

appellants was included therein. The appellants filed objections

under Section 5-A of the Act before the Land Acquisition Collector.

The objections made by the appellants were not accepted and the

declaration (final notification) under Section 6 of the Act was issued

and published in the official gazette on March 6, 1997. The Land

Acquisition Collector then issued notices under Section 9 of the Act

calling upon the landowners to make their claim of compensation for

all interests in the said land that they may have. The appellants

filed their claim before the Land Acquisition Collector. The appellants

were then informed by the Land Acquisition Collector to remain

present in his office on March 3, 1999 at 11.30 A.M. According to

the appellants, they remained present in the office of the Land

Acquisition Collector on March 3, 1999 whole day but no award came

to be announced. Since the award was not announced by the Land

Acquisition Collector within two years of the publication of declaration

made under Section 6, by virtue of Section 11-A of the Act, the entire

proceedings for the acquisition of the land lapsed.

6. The appellants treated the lapse of the acquisition

proceedings as withdrawal from the acquisition by the Government

and, consequently, they filed their claim of compensation for the

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damage suffered by them under Section 48(2) of the Act before the

Land Acquisition Collector, Urban Estate, Panchkula. The

compensation was demanded on diverse grounds, inter alia, that

their various units and establishments got affected by the proposed

acquisition; that because of proposed acquisition they lost interest in

the land and entered into an agreement to purchase the land

elsewhere for establishing their industrial units, poultry farm etc.,

that money was invested for the purchase of that land but because

of withdrawal from acquisition, the purchase agreements were

cancelled and the vendors forfeited the earnest money. Since the

merits of the claim have not been examined either by the Land

Acquisition Collector or High Court, it is not necessary to give further

details of compensation claimed by the appellants.

7. The Land Acquisition Collector vide his communication

dated September 27, 1999 informed the appellants that their claim

under Section 48(2) of the Act was not maintainable in view of the

judgment of this Court in the case of Abdul Majeed Sahib And Anr.

vs. District Collector And Ors., (1997) 1 SCC 297.

8. The appellants challenged the order/communication of the

Land Acquisition Collector, Panchkula by approaching High Court of

Punjab and Haryana. The Single Judge of that Court dismissed the

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entire group of revision applications on November 7, 2000 and

upheld the view of the Land Acquisition Collector, Panchkula that

claim of compensation under Section 48 (2) of the Act was not

maintainable.

9. The appellants sought review of the order dated

November 7, 2000. The review applications also came to be

dismissed by the High Court. It is from these orders that the matters

have reached this Court.

10. At this stage we may notice that vide Order dated May 1,

2008, this Court directed the State of Haryana and HUDA to file an

affidavit indicating their stand with regard to the provisions of

Sections 11-A, 48 & 48-A of the Act. In response thereto, an

affidavit has been filed on behalf of these authorities. The stand of

these authorities is that the provisions of Section 11-A and 48 of the

Act are distinct and different. As per Section 11-A, the Collector is

under a statutory obligation to make an award under Section 11

within a period of two years from the date of the publication of the

declaration under Section 6 of the Act. Failure on the part of the

Collector to make the award within the said period, subject to the

exclusion of the time as provided in the explanation attached to

Section 11-A entails lapse of acquisition proceedings. On the other

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hand, Section 48 empowers the Government to withdraw from the

acquisition of any land of which possession has not been taken. In

order to withdraw from the acquisition, there has to be publication of

notification withdrawing notification under Section 4(1) and the

declaration published under Section 6 of the Act. As there was no

notification issued and published under Section 48(1) of the Act

withdrawing from acquisition of the land of the appellants covered

under Notifications dated March 7, 1996 and March 6, 1997 under

Sections 4 and 6 of the Act respectively, the appellants are not

entitled to any compensation under Section 48(2) of the Act. They

stated that acquisition proceedings have not been withdrawn but

lapsed for the reason that the Collector failed to make an award

under Section 11-A of the Act relating to the land of the appellants.

With regard to Section 48-A, it was submitted that the said section

has not been incorporated in the Act for all intents and purposes. Its

application is confined to the schemes framed by the Urban

Improvement Trust under Punjab Town Improvement Act, 1922.

11. An additional affidavit came to be filed by the 1st appellant

after the afore-referred response was filed by the respondents. In his

additional affidavit, he stated that he made application under the

Right to Information Act, 2005 and has procured (i) copy of the letter

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dated March 5, 1999 from the Chief Administrator, HUDA; (ii) three

pages of file notings regarding the decision not to approve acquisition

of 326.43 acres of land in Sector 20, Jagadhri; (iii) copy of office

memo dated January 10, 1997 and (iv) copy of letter dated March

18, 1999 of the Estate Officer, HUDA, Jagadhri. The 1st appellant,

thus, stated in the additional affidavit that the aforesaid documents

would show that the competent authority had not approved the

acquisition of 326.43 acres of land in Sector 20, Jagadhri as the

proposal was not viable and that the intention of the Government not

to acquire the land amounted to withdrawal from the acquisition for

all intents and purposes.

12. In reply to the additional affidavit, the respondents 2 to 4

reiterated that the intention of the State Government not to acquire

the land is not a withdrawal from acquisition under Section 48(1) of

the Act.

13. Mr. P.S.Patwalia, learned senior counsel for the

appellants submitted at the outset, and in our view fairly, that Section

48-A has not been incorporated in the Act. He did not rely upon

Section 48-A. He referred to the file notings regarding the decision

of the Government not to approve the acquisition of 326.43 acres of

land in Sector 20, Jagadhri and communication to that effect to the

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Land Acquisition Collector and submitted that non-approval of

acquisition by the State Government was nothing but a voluntary

withdrawal from the acquisition and communication of that decision

to the Land Acquisition Collector was sufficient publication of the

decision of the Government to withdraw from acquisition. The

learned senior counsel would submit that Section 48 does not speak

of notification being issued for withdrawal of acquisition and,

therefore, the decision of the State Government in not approving the

acquisition was a decision of withdrawal from the acquisition and, the

petition for compensation made by the appellants under Section 48

(2) of the Act was maintainable.

14. The counsel for the respondent No.1 as well as

respondent Nos. 2 to 4, however, urged that first proviso to Section

11 mandates the Collector to seek approval from the appropriate

government before making the award. In the present case, the

Collector sought approval of the award from the appropriate

government but the government did not grant approval and, thus,

award could not be made by the Collector. It was submitted by the

learned counsel that non-grant of approval by the State Government

is not withdrawal from acquisition. Since award was not made within

a period of two years from the date of publication of the declaration,

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the entire proceedings for the acquisition of the land lapsed. Thus,

according to the learned counsel, the State Government had not

withdrawn from the acquisition and there being no notification issued

to that effect, petition for compensation under Section 48(2) of the

Act was not maintainable.

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 ?

(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. Section 4 of the Act provides for publication of preliminary

notification whenever it appears to the appropriate government that

land is needed or likely to be needed for any public purpose. Inter

alia, such notification is required to be published in the official

gazette.

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17. The person interested in the land having been notified

under Section 4 may file objections to the acquisition of that land and

other aspects as provided in Section 5-A.

18. When the appropriate government is satisfied after

considering the report from the Collector, if any, made under Section

5-A(2) that any particular land is needed for a public purpose, as

per Section 6 of the Act a declaration shall be made and, inter alia,

published in the official gazette. The said declaration is conclusive

evidence that land is needed for a public purpose.

19. Section 9 makes a provision for notice to persons

interested in the land intimating them the government’s intention to

take possession and that they may claim compensation for their

interest in such land.

20. Section 11 provides for an enquiry into measurements,

value and claims and award by the Collector. It reads as follows:

“11. (1) 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 into
the value of the land at the date of the publication of
the notification under Section 4, sub-section (1),
and into the respective interests of the persons
claiming the compensation and shall make an
award under his hand of –

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(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
authorise 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 stage 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 (2) shall not in any way
affect the determination of compensation in respect
of other lands in the same locality or elsewhere in
accordance with the other provisions of this Act.

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(4) Notwithstanding anything contained in the
Registration Act, 1908, (16 of 1908), no
agreement made under sub-section (2) shall be
liable to registration under that Act.”

21. Section 11-A provides as follows:

“11-A. 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 be 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 excluded.”

22. Section 48 enables the State Government to withdraw

from the acquisition in the circumstances mentioned therein. It

reads:

“48 – (1) Except in the case provided for in Section
36, the Government shall be at liberty to withdraw
from the acquisition of any land of which
possession has not been taken.

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(2) Whenever the Government withdraws from
any such acquisition, the Collector shall determine
the amount of compensation due for the damage
suffered by the owner in consequence of the notice
or of any proceedings thereunder, and shall pay
such amount to be person interested, together with
all costs reasonably incurred by him in the
prosecution of the proceedings under this Act
relating to the said land.

(3)The provisions of Part III of this Act shall
apply, so far as may be, to the determination of the
compensation payable under this section.”

23. From the perusal of Section 11, particularly first proviso

thereto, it is apparent that the approval of the appropriate

government to the award proposed by the Collector is mandatory. In

other words, it is imperative for the Collector to seek previous

approval of the appropriate government to the award that he

proposes to make unless the case is covered by Section 11(2). If

an award under Section 11 is not made by the Collector within a

period of two years from the date of the publication of the declaration,

the entire proceedings for the acquisition of the land shall lapse

under Section 11-A. Section 11-A provides maximum period within

which the award from the date of the publication of the declaration

has to be made. In default, the consequence is that the entire

proceedings for the acquisition would lapse. Section 48(1) empowers

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the State Government to withdraw from the acquisition of any land

subject to two conditions namely; (i) the case is not provided under

Section 36 and (ii) that possession has not been taken. Section 11-

A and the consequence provided therein i.e., lapse of acquisition

proceedings in the event of the award having not been made within

a period of two years from the date of publication of the declaration

under Section 6 is entirely distinct and different than the decision that

the government may take for withdrawal from the acquisition under

Section 48(1), provided possession has not been taken. It is only in

a case where the Government withdraws from the acquisition under

Section 48(1), that by virtue of Section 48(2), the claim for

compensation for the damage suffered by the owner in consequence

of the acquisition proceedings together with costs could be made.

The statutory lapse of acquisition proceedings under Section 11-A

as a result of non-grant of approval of proposed award by the State

Government or for any other reason would not tantamount to

withdrawal from acquisition by the State Government as

contemplated under Section 48(1). As a necessary corollary, no

claim for compensation could be made under Section 48(2) of the

Act.

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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.”

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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 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

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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) 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:

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“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 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.

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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) of the Act was, therefore, rightly held

to be not maintainable.

30. In view of what we have discussed above, all these

appeals fail and are liable to be dismissed and are dismissed with no

order as to costs.

……………………..J
(D.K. Jain)

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……………………..J
(R.M. Lodha)
New Delhi,
March 3, 2009.

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