PETITIONER: STATE OF MADHYA PRADESH AND ORS. Vs. RESPONDENT: VISHNU PRASAD SHARMA AND ORS. DATE OF JUDGMENT: 09/02/1966 BENCH: SARKAR, A.K. BENCH: SARKAR, A.K. WANCHOO, K.N. MUDHOLKAR, J.R. CITATION: 1966 AIR 1593 1966 SCR (3) 557 CITATOR INFO : RF 1968 SC1138 (28,44,45,46,51,52,54,57) R 1970 SC1576 (7) RF 1973 SC1150 (2) RF 1975 SC1699 (3) R 1975 SC1767 (4) E 1976 SC 417 (27) F 1977 SC 594 (5,6) E 1980 SC 367 (5,6,12) F 1985 SC1622 (15) D 1988 SC1615 (7) R 1989 SC 49 (26) RF 1991 SC1117 (9) ACT: Land Acquisition Act (1 of 1894), ss. 4, 5-A, 6, 17, 48 and 49-Notification under s. 4-If could be followed by more than one notification under s. 6., HEADNOTE: After the issue of a notification under a. 4(1) of the Land Acquisition Act, 1894, by which it was declared that lands in certain villages were likely to be needed for a public purpose, a number of notifications, in respect of different items of land specified in the notification under s. 4(1), were successively issued under s. 6. The validity of the last of them was challenged by the respondents, by a writ petition in the High Court The High Court allowed the petition holding that a notification under a. 4(1) could be followed only by one notification under. s. 6, and therefore it was not open to the Government to issue successive notifications with respect to different parts of land comprised in one notification under s. 4. In appeal to this Court, by the State, HELD: The High Court was right in holding that there can be no successive notifications under s. 6 with respect to land in a locality specified in one notification under a. 4(1). [572 C-D] Per Sarkar, J. Sections 4, 5-A and 6 of the Act read together indicates that the Act contemplates only a single declaration under s. 6 in respect of a notification under s. 4. There is nothing in ss. 17 and 49(2) (3) to lead to a contrary view. There is nothing in the Act to support the view that it is only a withdrawal under s. 48 that puts a notification under a. 4 completely out of the way. [560 G; 561 C; 561 E] Per Wanchoo and Mudholkar, JJ. Sections 4, 5-A and 6 are integrally connected and without the notifications under as. 4 and 6 no acquisition can take place, because, they are the basis of all proceedings which follow. The notification under s. 4(1) specifies the locality in which the land is to be acquired and under s. 4(2) survey is made to decide what particular land in the locality specified in the notification is to be acquired. Another purpose of the notification under a. 4(1) is to give opportunity to persons owning land in the locality to make objections under s. 5-A. Section 5-A specifically provides that the Collector shall hear all objections made before him and then make only one report to the Government containing his recommendations on the objections. When such a report is received by the Government, it must give a decision on all the objections at one stage and decide once for all what particular land out of the locality notified under s. 4(1) it wishes to acquire and then issue a declaration under s. 6. At the stage of s. 4, the land is not particularised but only the locality is mentioned; at the stage of a. 6 the land in the locality is particularised and thereafter, the notification under s. 4(1) having served its purpose exhausts itself. The sequence of events from a notification of the intention to acquire under s. 4 to the declaration under a. 6, leads to the conclusion that once a declaration under s. 6 particularising the area is issued, the remaining non- particularised area in the noti- Sup.C.I./66-4 558 fication under s. 4(1) stands automatically released. The intention of the legislature was that one notification under s. 4(1) should be followed by survey under s. 4(2), objections under s. 5-A heard, and thereafter, one declaration under s. 6 issued. If the Government requires more land in that locality, there is nothing to prevent it from issuing another notification under s. 4(i) making a further survey if necessary, hearing objections and then making another declaration under s. 6, whereas there is likely to be prejudice to the owner of the land if there is great delay between the notifications under s. 4(1) and s. 6. Even if it were possible to issue two notifications under s. 6 in the special circumstances arising out of the application of s. 17 (4), all that is possible is, to issue one notification relating to land to which s. 17(1) applies and another notification relating to land to which s. 17(1) cannot apply, and that is because of the special provisions contained in s. 17(1) and s. 17(4) and not because of the provisions of ss. 4, 5-A and 6. Section 48(1) only confers a special power on Government of withdrawal from acquisition without canceling the notifications under ss. 4 and 6, provided, possession of the land covered by the notification under s. 6 was not taken. It cannot be said that the only way in which the notification under s. 4(1) can corn.- to an end is by withdrawal under s. 48(1) and that unless action is taken under that section the notification under s. 4(1) would remain alive Section 49(2) and (3) also provide for a special case. The order of the Government under s. 49(2), ordering the acquisition of the whole of the land, even though under s. 6 only part of the land may have been declared, may be taken to serve the purpose of the noti- fication under s. 4(1) in such a special case; but it does not follow that successive notifications under s. 6 can be issued with respect to land in the locality specified in the notification under s. 4(1). [566 D-567 E; 567 F, H; 569 B, C; 570 A-D, C; 571 F, G] JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1018 of
1963.
Appeal from the judgment and order dated February 21, 1962,
of the Madhya Pradesh High Court in Misc. Petition No. 275
of 1961.
C. K. Daphtary, Attorney-General, M. Adhikari, Advocate
General, Madhya Pradesh, H. L. Khaskalam and I. N. Shroff,
for the appellants.
S. V. Gupte, Solicitor-General and J. B. Dadachanji, for
the respondents.
S. N. Kacker and J. P. Goyal, for the intervener.
SARKAR, J. delivered a separate opinion. The Judgment of
WANCHOO and MUDHOLKAR, JJ. was delivered by WANCHOO, J.
Sarkar, J-My learned brother Wanchoo has set out the facts
fully in his judgment and that relieves me of the necessity
of stating them again.
The question that has arisen is whether a number of
declarations under S. 6 of the Land Acquisition Act, 1894
can be issued successively in respect of different pieces of
lands included within the locality specified in a
notification issued under S. 4 of the Act. My learned
brother has said that ss. 4, 5A and 6 of the Act have to be
read together and so read, the conclusion is clear that the
Act contem-
559
plates only a single declaration under s. 6 in respect of a
notification under s. 4.1 so entirely agree with his
reasonings for this view that I find it unnecessary to add
anything to them. But it was said that there are other
considerations which indicate that our reading of these
sections is unsound. In this judgment I propose to deal
only with these considerations.
It was said that the Government may have difficulty in
making the plan of its project complete at a time,
particularly where the project is large and, therefore, it
is necessary that it should have power to make a number of
declarations under s. 6.1 am wholly unable to accept this
argument. First, I do not think that a supposed difficulty
would provide any justification for accepting an inter-
pretation of a statute against the ordinary meaning of the
language used in it. General considerations of the kind
suggested cannot authorise a departure from the plain
meaning of words. Secondly,. I cannot imagine a
Government, which has vast resources, not being able to
make a complete plan of its project at a time. Indeed, I
think when a plan is made, it is a complete plan. I should
suppose that before the Government starts acquisition
proceedings by the issue of a notification under s. 4, it
has made its plan for otherwise it cannot state in the
notification, as it has to do, that the land is. likely to
be needed. Even if it had not then completed its plan, it
would have enough time before the making of a declaration
under s. 6 to do so. I think, therefore, that the
difficulty of the Government, even if there is one, does not
lead to the conclusion that the Act contemplates the making
of a number of ‘declarations under s. 6.1 would like to
observe here to avoid confusion that we are not concerned
now with extension of a completely planned project conceived
later. The present contention is not based on any
difficulty arising out of such a case. It was said that if
the Government has not finalised its plan when it makes a
declaration under s. 6, it would have to start fresh
acquisition proceedings beginning with a notification under
s. 4 to provide for the complete plan if it could not make
any more declarations and in such a case, in conceivable
circumstances, it may have to pay more for the land that it
then sought to acquire. This argument concedes that even
if the Government has not been able to make its plan when
making a declaration under s. 6, the result is not that it
cannot acquire any more land later when the plan is
completed. The real point, therefore, of the present
argument is that the Act should be so interpreted that the
Government should not be put to extra cost when it has been
unable to complete its plan at a time. This seems to me to
be a strange argument. First, there is no reason why the
Act should provide for the Government’s failure to complete
the plan. Secondly, the argument is hypothetical for one
does not know for sure whether a later acquisition will cost
more or lessr Arguments on hypothetical considerations can
have little weight in interpreting statutes. But even
otherwise this view of the matte.
560
does not support the argument. After the issue of a
notification under s. 4, an owner of land in the locality
notified cannot have full beneficial enjoyment of his
property; he cannot, for example, build on his land for if
he does so-and the land is acquired, he will get no
compensation for the building put up and will lose the costs
incurred for it. If it is a justification for saying that a
number of declarations can be made under s. 6 because
otherwise the Government may have to pay more, it seems to
me that it is at an equal justification for saying that such
declarations cannot have been contemplated by the Act
because that would mean an avoidable deprivation of the
owners of their beneficial enjoyment of lands till such time
as the Government is able to make its plan. As the Act is
an expropriatory Act, that interpretation of it should be
accepted which puts the least burden on the expropriated
owner. The Government could, of course, always make a
complete plan at a time and I am unable to hold that the Act
contemplated that it need not do so and go on making
declarations from time to time as its plan goes on taking
shape even though the result might be to increase the
hardship of persons whose lands are taken away.
Reference was then made to sub-ss. (1) and (4) of s. 17.
These give the Government the power to, take possession of
waste and arable lands included in the notification under S.
4 on the expiry of fifteen days from the publication of the
notice mentioned in S. 9 and before the making of the award,
without holding the enquiry contemplated by S. 5. It was
said that if a notification under s. 4 included both arable
and waste lands as also lands of other descriptions, it will
be necessary to issue two separate declarations under s. 6
in respect of the different kinds of lands. It was also
said that the vesting in respect of the two kinds of lands
in the Government would also be by stages, All this, it was
contended, would support the view that more than one
declaration under s. 6 was contemplated in such a case. I
do not feel called upon to ,express any opinion whether in
such a case a number of declarations under s. 6 is
contemplated. It is enough to say that it is not contended
that this is a case of that kind. Therefore, it cannot be
said that the disputed declaration under S. 6 was in this
case justified under s. 17. On the contrary, if t the
contention that S. 17 contemplates more declarations than
one under s. 6 be correct, that would be because the statute
specifically so provided for a particular case. It must
follow that without a special provision, more than one
declaration under S. 6 was not contemplated.
The next contention was that s. 48 which gives the
Government power of withdrawal from acquisition before
taking possession implies that a notification under s. 4
remains in force for all purpose till such withdrawal, and
if it so remains in force, successive declarations under s.
6 must be permissible for otherwise it would be useless to
keep the notification under s. 4 in force. The substance
561
of this argument is that the only way to get rid of a
notification under s. 4 is by a withdrawal of the
acquisition proceedings under s. 48; if the proceedings are
not withdrawn, the notification remains and then there may
be successive declarations. This argument seems to me
clearly ill founded. Now a notification under s. 4 will be
exhausted if a declaration is made under it in respect of
the entire area covered by it. Likewise, it seems to me
that if the correct interpretation is that only one
declaration can be made under s. 6, that also would exhaust
the notification under s. 4; that notification would no
longer remain in force to justify successive declaration
under s. 6 in respect of different areas included in it.
There is nothing in the Act to support the view that it is
only a withdrawal under s. 48 that puts a notification under
s. 4 completely out of the way. The effect of s. 48 is to
withdraw the acquisition proceedings, including the
notification under s. 4 with which it started. We are
concerned not with a withdrawal but with the force of a
notification under s. 4 having become exhausted. That is a
different case and has nothing to do with a withdrawal.
Lastly, we were referred to sub-ss., (2) and (3) of s. 49.
These sub-sections state that where a claim for compensation
is made on the ground of severance of the land acquired from
the remaining land of the owner for which provision is made
under s. 23, if the Government thinks that the claim is
unreasonable it may, before the making of the award, order
the acquisition of the whole land and in such a case no
fresh declaration under s. 6 will be necessary. It is
contended that these provisions support the view that
successive declarations under s. 6 were contemplated. I do
not think they do so. In any case, I even if they did, then
that would be because in d particular case the statute
specially provided for successive declarations under s. 6.
The present is not that special case. Furthermore, as I
have said in connection with the argument based on s. 17,
the fact that a special provision was necessary to enable
successive declarations under s. 6 to be made would go to
support the view that without a special provision there is
no power given by the Act to issue successive declarations
under s. 6.
1 would for these reasons dismiss the appeal with costs.
Wanchoo, J.-The only question raised in this appeal on a
certificate granted by the Madhya Pradesh High Court is
whether it is open to the appropriate government to issue
successive notifications under s. 6 of the Land Acquisition
Act, No. 1 of 1894, (hereinafter referred to as the Act)
with respect to land comprised within one notification under
s. 4(1) of the Act. The question arises in this way.
On May 16, 1949, a notification was issued under s. 4 (1) of
the Act by which it was declared that lands in eleven
villages including village Chhawani was likely to be needed
for a public
562
purpose, i.e., the erection of an iron and steel plant. It
appears that thereafter notifications were issued under s. 6
with respect to the villages notified in the notification
under s. 4(1) and it is not in dispute that a number of such
notifications under S. 6 were issued with respect to village
Chhawani and some land in that village was acquired under
those notifications, the last’ of such acquisitions being in
the vear 1956. Thereafter on August 12, 1960, another
notification under s. 6 of the Act was issued by the
appropriate government proposing to acquire 486-17 acres of
land in village Chhawani and the area which was proposed to
be acquired was demarcated on a map kept in the office of
the Collector of Durg for inspection. The notification also
stated that the provisions of S. 5-A of the Act shall not
apply thereto. Thereupon the respondents who are interested
in some of the land notified filed a writ petition in the
High Court challenging the validity of the notification
under s. 6. The principal contention raised on their behalf
was that the notification under s. 6 of the Act was void as
it had not been preceded by a fresh notification under s. 1)
and the notification under S. 4(1) issued in 1949 had
exhausted itself when notifications under s. 6 with respect
to this village had been issued previously and could not
support the issue of another notification under s. 6. In
substance the contention of the respondents in their
petition was that a notification under s. 4(1) could be
followed only by one notification under s. 6 and that there
could be no successive notifications under s. 6 with respect
to lands comprised in one notification under s. 4(1).
The petition was opposed on behalf of the appellant, and it
was contended that it was open to the appropriate government
to issue as many notifications as it deemed fit under s. 6
of the Act with respect to lands comprised in one
notification under s. 4(1) and that it was not correct that
the notification under s. 4(1) was ,exhausted as soon as one
notification under s. 6 was issued with respect to a part of
the land comprised in the notification under s. 4(1), and
that it was always open to the appropriate government to
issue successive notifications under s. 6 so long as these
notifications were with respect to land comprised within the
notification under s. 4(1).
The High Court has accepted the contention of the
respondents and has held that a notification under s. 4 (1)
can only be followed by one notification under S. 6 and that
it is not open to the appropriate government to issue
successive notifications with respect to parts of the land
comprised in one notification under s. 4 and that as soon as
one notification is issued under s. 6, whether it be with
respect to part of the land comprised in the notification
under s., 4(1) or with respect to the whole of it, the
notification under s. 4(1) is exhausted and cannot support
any further notification under s. 6 ,of the Act with respect
to parts of land comprised in the notifi-
563
cation under s. 6. In consequence the petition was allowed
and the notification dated August 12, 1960 quashed. The
appellant then applied to the High Court for a certificate
which was granted; and that is how the matter has come up
before us.
The question whether only one notification under s. 6 can be
issued with respect to land comprised in the notification
under s. 4(1) and thereafter the notification under S. 4(1)
exhausts itself and cannot support any further notification
under s. 6 with respect to such land depends upon the
construction of ss. 4, 5-A and 6 of the Act and on the
connection between these provisions. Before however we deal
with these provisions we may briefly refer to the scheme of
the Act and the background in which these provisions have to
be interpreted.
The Act provides for the exercise of the power of eminent
domain and authorises the appropriate government to acquire
lands thereunder for public purpose or for purposes of a
company. The proceedings begin with a notification under S.
4 (1). After such a notification it is permissible under s.
4(2) for any officer of government, his servants and workmen
to enter upon and survey the land in such locality, to dig
or bore into the subsoil, to do all other acts necessary to
ascertain whether the land is adapted for the purpose for
which it was needed, to set out the boundaries of the land
proposed to be taken and the intended line of the work
proposed to be made thereon, to mark boundaries etc. by
placing marks and fences and where otherwise the survey
cannot be completed to cut down and clear away any part of
any standing crop, fence or jungle. While the survey is
being done under S. 4 (2), it is open to any person
interested in the land notified under s. 4 (1) to object
under s. 5-A before the Collector within thirty days after
the issue of the notification to the acquisition of the land
or of any land in the locality. The Collector is authorised
to hear the objections and is required after hearing all
such objections and after making such further enquiry as he
thinks necessary to submit the case for the decision of the
appropriate government together with the record of the
proceedings held him and a report containing his
recommendations on the objections. Thereaft the appropriate
government decides the objections and such decision is
final. If the appropriate government is satisfied after
considering the report that any particular land is needed
for a public purpose or for a company it has to make a
declaration to that effect. After such a declaration has
been made under s, 6 the appropriate government directs the
Collector under S. 7 to take order for the acquisition of
the land. Sections 8 to 15 provide for the proceedings
before the Collector. Section 16 authorises the Collector
to take possession after he has made the award under s. II
and thereupon the land vests absolutely in the government
free from all encumbrances. Section 17 provides for special
powers in cases of urgency. If a
564
person is not satisfied with the award of the Collector, ss.
18 to 28 provide for proceedings on a reference to court.
Sections 31 to 34 provide for payment of compensation.
Sections 38 to 44 make special provisions for acquisition of
land for companies. Section 48 gives power to government to
withdraw from the acquisition of any land of which
possession has not been taken. Section 49 provides for
special powers with respect to acquisition of house,’
building or manufactory and of land severed from other land.
It will be seen from this brief review of the provisions
with respect to acquisition of land that ss. 4 and 6 are the
basis of all the proceedings which follow and without the
notifications required under ss. 4 and 6 no acquisition can
take place. The importance of a notification under s. 4 is
that on the issue of such notification the land in the
locality to which the notification applies is in a sense
freezed. This freezing takes place intwo ways. Firstly the
market value of the land to be acquired has to be determined
on the date of the notification under s. 4(1) : [see s.
23(1) firstly]. Secondly, any outlay or improvements on or
disposal of the land acquired commenced, made or effected
without the sanction of the Collector after the date of the
publication of the notification under s. 4(1) cannot be
taken into consideration at all in determining compensation
: (see s. 24, seventhly).
It is in this background that we have to consider the
question raised before us. Two things are plain when we
come to consider the construction of ss. 4, 5A and 6. The
first is that the Act provides for acquisition of land of
persons without their consent, though compensation is paid
for such acquisition; the fact however remains that land is
acquired without the consent of the owner thereof and that
is a circumstance which must be borne in mind when we come
to consider the question raised before us. In such a case
the provisions of the statute must be strictly construed as
it deprives a person of his land without his consent.
Secondly, in interpreting these provisions the court must
keep in view on the one hand the public interest which
compels such acquisition and on the other the interest of
the person who is being deprived of his land without his
consent. It is not in dispute that it is open to the
appropriate government to issue as many notifications as it
deems fit under s. 4(1) even with respect to the same
locality followed by a proper notification under s. 6 so
that the power of the appropriate government to acquire land
in any locality is not exhausted by the issue of one
notification under s. 4(1) with respect to that locality.
On the other hand as the compensation has to be determined
with reference to the date of the notification under S. 4(1)
the person whose land is to be acquired may stand to lose if
there is a great delay between the notification under s.
4(1) and the notification under s. 6 in case prices have
risen in the meantime. This delay is likely to be greater
if successive notifications under s. 6 can be
565
issued with respect to land comprised in the notification
under s. 4 with greater consequential loss to the person
whose land is being acquired if prices have risen in the
meantime. It is however urged that prices may fall and in
that case the person whose land is being acquired will stand
to gain. But as it is open to the appropriategovernment to
issue another notification under s. 4 with respect to the
same locality after one such notification is exhausted by
the issue of a notification under S. 6, it may proceed to do
so where it feels that prices have fallen and more land in
that locality is needed and thus take advantage of the fall
in prices in the matter of acquisition. So it is clear that
there is likely to be prejudiceto the owner of the land if
the interpretation urged on behalf of the appellant is
accepted while there will be no prejudice to the govem-ment
if it is rejected for it can always issue a fresh
notification under s. 4(1) after the previous one is
exhausted in case prices havefallen. It is in this
background that we have to consider the question raised
before us.
As we have said already, the process of acquisition always
begins. with a notification under s. 4(1). That provision
authorises the appropriate government to notify that land in
any locality is needed’ or is likely to be needed for any
public purpose. It will be noticed that in this
notification the land needed is not particularised but only
the locality where the land is situate is mentioned. As
was. observed by this Court in Babu Barkya Thakur v. The
State of Bombay,(1) a notification under S. 4 of the Act
envisages a preliminary investigation and it is only under
s. 6 that the government makes a firm declaration. The
purpose of the notification under S. 4(1) clearly is to
enable the government to take action under S. 4(2) in the
matter of survey of land to decide what particular land in
the locality specified in the notification under s. 4(1) it
will decide to acquire. Another purpose of the notification
under s. 4(1) is to give opportunity to persons owning land
in that locality to make objections under s. 5-A. These
objections are considered by the Collector and after
considering all objections he makes a report containing his
recommendation on the objections to the appropriate-
government whose decision on the objections is final.
Section 5-A obviously contemplates consideration of all
objections, made to thenotification under s. 4(1) and one
report thereafter by the Collectorto the government with
respect to those objections. The government then finally
decides those objections and thereafter proceeds to make a
declaration under s. 6. There is nothing in s. 5-A to
suggest that the Collector can make a number of reports
dealing with the objections piecemeal. On the other hand S.
5-A specifically provides that the Collector shall hear all
objections made before him and then make a report i.e. only
a single report to the government containing his
recommendation oil the objections.
(1) [1961] 1 S.C.R. 128).
566
It seems to us clear that when such a report is received
from the Collector by the government it must give a decision
on all the objections at one stage and decide once for all
what particular land out of the locality notified under S.
4(1) it wishes to acquire, It has to be satisfied under s. 6
after considering the report made under S. 5-A that a
particular land is needed for a public purpose or for a
company and it then makes a declaration to that effect under
s. 6. Reading ss. 4, 5-A and 6 together it seems to us clear
that the notification under S. 4(1) specifies merely the
locality in which the land is to be acquired and then under
S. 4(2) survey is made and it is considered whether the land
or part of it is adapted to the purpose for which it is
required and maps are prepared of the land proposed to be
taken. Then after objections under s. 5-A have been
disposed of the government has to decide what particular
land out of the locality specified in the notification under
S. 4(1) it will acquire. It then makes a declaration under
s. 6 specifying the particular land that is needed.
Sections 4, 5-A and 6 in our opinion are integrally
connected. ‘Section 4 specifies the locality in, which the
land is acquired and provides for survey to decide what,
particular land out of the locality would be needed. Section
5-A provides for hearing of objections to the acquisition and
after these objections are decided the government has to
make up its mind and declare what particular land out of the
locality it will acquire. When it has so made up its mind
it makes a declaration as to the particular land out of the
locality notified in S. 4(1) which it will acquire. It is
clear from this intimate connection between ss. 4, 5-A and 6
that as soon as the ,government has made up its mind what
particular land out of the locality it requires, it has to
issue a declaration under S. 6 to that effect. The purpose
of the notification under S. 4(1) is at this stage over and
it may be said that it is exhausted after the notifi-cation
under S. 6. If the government requires more land in that
locality besides that notified-under S. 6, there is nothing
to prevent it from issuing another notification under S.
4(1) making a further survey if necessary, heating
objections and then making another declaration under S. 6.
The notification under S. 4(1) thus informs the public that
land is required Or would be required in a particular
locality and thereafter the Members of the public owning
land in that locality have to make objections under S. 5-A;
the government then makes up its mind as to what particular
land in that locality is required and makes a declaration
under s. 6. It seems to us clear that once a declaration
under s. 6 is made, the notification under S. 4(1) must be,
exhausted, for it has served its purpose. There is nothing
in ss. 4, 5-A and 6 to suggest that S. 4 ,(1) is a kind of
reservoir from which the government may from time to time
draw out land and make declarations with respect to it
:successively. If that was the intention behind sections 4,
5-A and
567
6 we would have found some indication of it in the language
used therein. But as we read these three sections together
we can only find that the scheme is that s. 4 specifies the
locality, then there may be survey and drawing of maps of
the land and the consideration whether the land is adapted
for the purpose for which it has to be acquired, followed by
objections and making up of its mind by the government what
particular land out of that locality it needs. This is
followed by a declaration ‘Under s. 6 specifying the parti-
cular land needed and that in our opinion completes the
process and the notification under s. 4(1) cannot be further
used thereafter. At the stage of s. 4 the land is not
particularised but only the locality is mentioned; at the
stage of s. 6 the land in the locality is particularised and
thereafter it seems to us that the notification under s.
4(1) having served its purpose exhausts itself. The
sequence of events from a notification of the intention to
acquire (s. 4(1) to the declaration under s. 6
unmistakably leads one to the reasonable conclusion that
when once a declaration under S. 6 particularising the area
out of the area in the locality specified in the
notification under s. 4(1) is issued, the remaining non-
particularised area stands automatically released. In
effect the scheme of these three sections is that there
should be first a notification under S. 4(1) followed by one
notification under S. 6 after the government has made up its
mind which land out of the locality it requires.
It is urged however that where the land is required for a
small project and the area is not large the government may
be able to make up its mind once for all what land it needs,
but where as in the present case land is required for a
large project requiring a large area of land government may
not be able to make up its mind all at once. Even if it be
so there is nothing to prevent the government from issuing
another nonfication under s. 4 followed by a notification
under S. 6. As we have said before, the government’s power
to acquire land in a particular locality is not exhausted by
issuing one notification under s. 4(1) followed by a
notification under S. 6. The interpretation which has
commended itself to us therefore does not deprive the
government of the power to acquire more land from the same
locality if later on it thinks that more land than what has
been declared under s. 6 is needed. It can proceed to do so
by a fresh notification under s. 4(1) and a fresh
declaration under s. 6. Such a procedure would in our
opinion be fair to all concerned; it will be fair to
government where the prices have fallen and it will be fair
to those whose land is being acquired where the prices have
risen. Therefore as we read these three sections we are of
opinion that they are integrally and intimately connected
and the intention of legislature was that one, notification
under S. 4(1) should be followed by survey under S. 4 (2)
and objections under s. 5-A and thereafter one declaration
568
under S. 6. There is nothing in ss. 4, 5-A and 6 which
supports the construction urged on behalf of the appellant
and in any case it seems to us that the construction which
commends itself to us and which has been accepted by the
High Court is a fair construction keeping in view the
background to which we have referred. Even if two
constructions were possible, which we think is not so, we
would be inclined to the construction which has commended
itself to us because that construction does not restrict the
power of the government to acquire land at any time it deems
fit to do and at the same time works fairly towards persons
whose land is to be acquired compulsorily.
It now remains to consider certain other provisions of the
Act to which reference has been made on behalf of the
appellant to show that successive notifications under s. 6
are contemplated with respect to land in a locality
specified in the notification under s. 4(1). The first
provision is contained in s. 17(4). Section 17(1) gives
power to government in cases of urgency to direct that the
Collector should take possession of-the land before the
award is made and such possession can be taken on expiration
of fifteen days from the publication of the notice under s.
9(1). Further such possession can only be taken of waste or
arable land and on such possession being taken such land
vests absolutely in the government free from all
encumbrances. To carry out the purposes of S. 17(1), S.
17(4) provides that the appropriate government may direct
that the provisions of S. 5-A shall not apply in cases of
urgency and if it so directs, a declaration under S. 6 may
be made in respect of the land at any time after the
publication of the notification under s. 4(1). It is urged
that this shows that where the land notified under S. 4(1)
includes land of the kind mentioned in S. 17 (1) and also
land which is not of that kind it would be open to govern-
ment to make a declaration under S. 6 with respect to the
land mentioned in S. 17(1) immediately after the
notification under s. 4(1) while notification with respect
to the land which is not of the kind mentioned in s. 17(1)
can follow later after the enquiry under s. 5-A is over and
objections have been disposed of. So it is urged that more
than one declaration is contemplated under s. 6 after one
notification under s. 4(1). There are two answers to this
argument. In the first place where the land to be acquired
is of the kind mentioned in s. 17(1) and also of the kind
not included in S. 17(1) there is nothing to prevent the
government from issuing two notifications under s. 4(1) one
relating to land which comes within s. 17(1) and the other
relating to land which cannot come within S. 17(1). There-
after the government may issue a notification under s. 6
following the. notification under s. 4(1) with respect to
the land to which s. 17(1) applies while another
notification under S. 6 with respect to land to which s.
17(1) does not apply can follow after the enquiry under S.
5-A. So section 17(4) does not necessarily mean that
569
there can be two notifications under s. 6 where the
provisions of that section are to be utilised, for, the
government can from the beginning issue two notifications
under s. 4 and follow them up by two declarations under s.
6. But even assuming that it is possible to make two
declarations under s. 6 (though in view of what we have said
above this is not necessary and we express no final opinion
about it) where the land to be acquired is both of the kind
mentioned in s. 17(1) and also of the kind not comprised
therein, all that the government can do in those
circumstances after one notification under s. 4 (1)
comprising both lands is to issue one notification under s.
6 comprising lands coming within s. 17(1) and another
notification under s. 6 with respect to land not coming
within s. 17(1) sometime later after the enquiry under s. 5-
A is finished. This however follows from the special
provisions contained in s. 17(1) and (4) and in a sense
negatives the contention of the appellant based only, on ss.
4, 5-A and 6. It may be added that that is not the position
in the present case. Therefore even if it were possible to
issue two notifications under s. 6 in the special
circumstances arising out of the application of s. 17(4),
all that is possible is to issue one notification relating
to land to which S. 17(1) applies and another. notification
relating to land to which s. 17(1) cannot apply. Further
if both these kinds of land are included in the notification
under S. 4(1), the issue of two notifications under s. 6
follows from the special provisions contained in s. 17(1)
and S. 17(4) and not from the provisions of ss. 4, 5-A and
6. The present is not a case of this kind, for the
notification under S. 4(1) in this case issued in May 1949
did not contain any direction relevant to S. 17(4). It is
true that the declaration under S. 6 dated August 12, 1960
contains a direction under s. 17(4), but the effect of that
merely is to allow the government to take possession of the
land within 15 days after the issue of notice under S. 9(1).
This is on the assumption that a direction under s. 17(4)
can be issued along with the notification under S. 6 as to
which we express no opinion. We are therefore of opinion
that the provisions in S. 17(4) do not lead to the
conclusion that section 6 contemplates successive
notifications following one notification under s. 4(1). As
we interpret ss. 4, 5-A and 6 that is not the intention in a
normal case. Even in a case of urgency there can at the
most be only two notifications under s. 6 following one
notification under s. 4(1), one relating to land which is
covered by s. 17(1) and the other relating to land which is
not covered by S. 17(1), provided both kinds of land are
notified by one notification under s. 4(1). As we have said
even that is not necessary for we are of opinion that in
such a case the government can issue two notifications under
s. 4(1), one relating to land to which S. 17(1) applies and
the other relating to land to which s. 17(1) does not apply
and thereafter there will be two notifications under s. 6
each following its own predecessor under s. 4(1).
570
Then reliance is placed on S. 48 which provides for
withdrawal from acquisition. The argument is that S. 48 is
the only provision in the Act which deals with withdrawal
from acquisition and that is the only way in which
government can withdraw from the acquisition and unless
action is taken under S. 48(1) the notification under S.
4(1) would remain (presumably for ever). It is urged that
the only way in which the notification under S. 4(1) can
come to an end is by withdrawal under S. 48(1). We are not
impressed by this argument. In the first place, under S. 21
of the General Clauses Act, (No. 10 of 1897), the power to
issue a notification includes the power to rescind it.
Therefore it is always open to government to rescind a
notification under s. 4 or under s. 6, and withdrawal under
S. 48(1) is not the only way in which a notification under
s. 4 or S. 6 can be brought to an end. Section 48(1)
confers a special power on government of withdrawal from
acquisition without canceling the notifications under ss. 4
and 6, provided it has not taken possession of the land
covered by the notification under S. 6. In such
circumstances the government has to give compensation under
S. 48(2). This compensation is for the damage suffered by
the owner in consequence of the notice under S. 9 or of any
proceedings thereafter and includes costs reasonably in-
curred by him in the prosecution of the proceedings under
the Act relating to the said land. The notice mentioned in
sub-s. (2) obviously refers to the notice under S. 9(1) to
persons interested. It seems that S. 48 refers to the stage
after the Collector has been asked to take order for
acquisition under S. 7 and has issued notice under S. 9(1).
It does not refer to the stage prior to the issue of the
declaration under s. 6. Section 5 says that the officer
taking action under s. 4(2) shall pay or tender payment for
all necessary damage done by his acting under s. 4(2).
Therefore the damage if any, caused after the notification
under S. 4(1) is provided in section 5. Section 48(2)
provides for compensation after notice has been issued under
S. 9(1) and the Collector has taken proceedings for
acquisition of the land by virtue of the direction under s.
7. Section 48(1) thus gives power to government to withdraw
from the acquisition without canceling the notifications
under ss. 4 and 6 after notice under s. 9(1) has been issued
and before possession is taken. This power can be exercised
even after the Collector has made the award under S. 11 but
before he takes possession under s. 15 Section 48(2)
provides for compensation in such a case. The argument that
S. 48(1) is the only method in which the government can
withdraw from the acquisition has therefore no force because
the government can always cancel the notifications under ss.
4 and 6 by virtue of its power under S. 21 of the General
Clauses Act and this power can be exercised before the
government directs the Collector to take action under S. 7.
Section 48(1) is a special provision for those cases where
proceedings for acquisition have’ gone beyond the stage of
the issue of notice under S. 9(1) and
571
it provides for payment of compensation under. s. 48(2)
read with S. 48(3). We cannot therefore accept the
argument that without an order under S.48(1) the
notification under S. 4 must remain outstanding. It can be
cancelled at any time by government under s. 21 of the
General Clauses Act and what s. 48(1) shows is that once
government has taken possession it cannot withdraw from the
acquisition. Before that it may cancel the notifications
under ss. 4 and 6 or it may withdraw from the acquisition
under s. 48(1). If no notice has been issued under s. 9(1)
all that the government has to do is to pay for the damage
caused as provided in s. 5; if on the other hand a notice
has been issued under s. 9(1), damage has also to be paid in
accordance with the provisions of s. 48(2) and (3). Section
48(1) therefore is of no assistance to the appellant for
showing that successive declarations under S. 6 can be made
with respect to land in the locality specified in the
notification under s. 4(1).
Then reference is made to s. 49(2) and (3). These sub-
sections. lay down a special provision applicable in certain
circumstances. Among the factors to be taken into
consideration in fixing the compensation is the damage if
any sustained by the person interested at the time of the
Collector’s taking possession of the land by reason of
severing such land from his other land. Section 49(2)
provides. that if a person is claiming an unreasonable and
excessive compensation for this kind of damage, the
government can order the acqui-sition of the whole of the
land even though under s. 6 only part of the land may have
been declared. Sub-section (3) provides that in such a case
no action under S. 6 to S. 10 would be necessary and that
all that the Collector is to do is to give an award under s.
11. The argument is that S. 49(3) does not mention S. 4 and
therefore it follows that successive notifications under S.
6 can be issued with respect to land in the locality
specified in the notification under s. 4(1). We have not
been able to understand how this follows from the fact that
S. 4(1) is not mentioned in S. 49(3).. As we have said
already s. 49(2) and (3) provide for a very special case and
the order of government under s. 49(2) may in a sense be
taken to serve the purpose of S. 4(1) in such a special
case. Thereafter all that s. 49(3) provides is that the
Collector may proceed straight off to determine compensation
under s. 11, the reason for this being that all the other
steps necessary for determining compensation under s. 11
have already been taken in the presence of the parties.
Lastly it is urged that vesting is also contemplated in two,
stages and that shows that successive notifications can be
issued under s. 6 following one notification under s. 4(1).
Section 16 provides for taking possession and vesting after
the award hap, been made. Section 17 provides for taking
possession and consequent vesting before the award is made
in case of urgency. We
572
fail to see how these provisions as to vesting can make any
difference to the interpretation of ss. 4, 5-A and 6.
Section 16 deals with a normal case where possession is
taken after the award is made while s. 17(1) deals with a
special case where possession is taken fifteen days after
the notice tinder s. 9(1). Vesting always follows taking of
possession and there can be vestin either under s. 16 or
under s. 17(1) depending upon whether the case is a normal
one or an urgent one. What we have said with respect to s.
17(1) .and S. 17(4) would apply in this matter of vesting
also and if the matter is of urgency the government can
always issue two notifi-cations under s. 4, one relating to
land urgently required and covered by S. 17(1) and the other
relating to land not covered by S. 17(1). The argument
based on these provisions in s. 16 and s. 17 can have no
effect on the interpretation of ss. 4, 5-A and 6 for reasons
which we have given when dealing with ss. 17(1) and 17(4).
We are therefore of opinion that the High Court was right in
holding :that there can be no successive notifications under
S. 6 with respect to land in a locality specified in one
notification under S. 4(1). As it is not in dispute in this
case that there have been a number of notifications under s.
6 with respect to this village based on the notification
under S. 4(1) dated May 16, 1949, the High Court was right
in quashing the notification under s. 6 issued on August 12,
1960 based on the same notification under S. 4(1).
The petition had also raised a ground that the
notification .under S. 6 was vague. However, in view of our
decision on the main point raised in the case we express no
opinion on this aspect .of the matter.
The appeal therefore fails and is hereby dismissed with
costs
Appeal dismissed.
573