PETITIONER: THE GEN. MANAGER TELE-COMMUNICATION AND ANR. ETC. Vs. RESPONDENT: DR. MADAN MOHAN PRADHAN & ORS. ETC. DATE OF JUDGMENT08/11/1995 BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. PARIPOORNAN, K.S.(J) CITATION: 1995 SCC Supl. (4) 268 JT 1995 (8) 193 1995 SCALE (6)387 ACT: HEADNOTE: JUDGMENT:
O R D E R
A notification under Section 4(1) of the Land
Acquisition Act, 1894 (for short, ‘the Act’) was published
in January, 1973 acquiring Ac.3.589 of land situated in
Cuttack for Telecommunication Department for residential
quarters of the staff, Telephone exchange, Post office etc.
In exercise of the power under Section 17(4) read with 17(1)
enquiry under Section 5A was dispensed with. Before the
declaration under Section 6 could be published a
representation was made by the wife of the respondent No.1
i.e. Dr. Sarojini Pradhan requesting to delete 24 decimals
of land for construction of Nursing Home etc. In the
meanwhile, Cuttack Development Authority declared the area
to be commercial zone. In consequence, the appellant made an
application requesting to permit construction upto 90 ft.
and rest of the land may be permitted to be released for
residential purposes. In the meanwhile, the representation
made by Dr. Sarojini was pending declaration under Section 6
was published on June 30, 1975. A notice under Section 9 was
served on November 1, 1975, possession of the land was also
claimed to have been taken on April 12, 1976 and was handed
over to the Union of India. The Land Acquisition Officer
made his award on November 2, 1976 and paid the amount to
all persons who had accepted the award or those who received
under protest and it is said that as regards the amount
awarded to Dr. Sarojini Pradhan, it was kept in deposit.
On August 18, 1979 the respondent No.1, since his wife
died in the meanwhile, filed W.P. No.1139/79, challenging
the validity of the notification under Section 4(1) and
Section 6 declaration. The High Court by order dated March
16, 1982 disposed of the writ petition with a direction to
the Government to consider the representation of the
respondent for exclusion of the land from acquisition. After
an elaborate consideration and scrutiny of the necessary
material, Union of India rejected the representation on June
3, 1987. Thereafter the respondents filed W.P. No.435 of
1988 challenging the notifications. In the meanwhile the
headquarters of the Telecommunication Department was shifted
from Cuttack to Bhubaneswar but it was decided that the
existing staff would remain at Cuttack. The High Court by
the impugned order dated October 31, 1990 quashed the
notification under Section 4(1) on the ground that the
exercise of the power under Section 17(4) was invalid. Since
the declaration was made after the amendment to Section 6
has come into existence, the notification under Section 4(1)
was held to be invalid. Thus these appeals by special leave.
The crucial question that arises for consideration is
whether the High Court was right and justified in
interfering with the acquisition. It is seen that out of the
extent of Ac.3.589, the claim of the respondents is only
Ac.o.240 dec. In other words, only around 1162 sq. yards.
All others had accepted the award, a few of them under
protest. It is common knowledge that possession would always
be taken under a memo and handing over also would be under a
memo. It is a recognized usual practice in all the
acquisition proceedings. By operation of Section 17(1) even
before award could be made, the Land Acquisition Officer is
entitled to take possession of the land. He did so. The time
mentioned in Section 9 stood expired by them. Even
otherwise, award was made on November 2, 1976. By operation
of Section 16 of the Act right, title and interest in the
land vested in the Government absolutely free from all
encumbrances. Thereby the Government became the absolute
owner with effect from April 12, 1976. This Court in the
case of Satendra Prasad Jain & Ors. Vs. State of U.P. & Ors.
[(1991) 4 SCC 531 had held that once possession has been
taken validity of the notification under Section 4(1) and
declaration under Section 6 cannot be gone into and Section
11 A does not apply.
It is already seen that the possession having already
been taken on April 12, 1976 and vested in the Government
free from all encumbrances and many others having accepted
the award and some had received the compensation under
protest, the High Court was wholly unjustified in
interfering with the acquisition. We have seen the plan
produced before us which would indicate that the land
acquired comprises the establishment of Officers’ building
and 2000 electronic exchange. Under theses circumstances, it
would be highly inconvenient to exclude this land from
acquisition. The purpose of enquiry under Section 5A is only
to show that any other convenient and suitable land would be
available other than the land sought to be acquired, or
there is no public purpose. This issue would become an
academic, once the construction started and was in progress.
The ratio in the case of oxford English School v. A.
Hastings Hope reported in [(1995) 5 SCC 206 has no
application to the facts of these appeals. In that case,
neither the award was made before the amendment act has come
into force nor was possession taken. In these circumstances,
this Court held that declaration under Section 6 was invalid
and direction given by the High Court to conduct enquiry
under Section 5A, after three years had expired, is illegal.
Section 4(1) also stood lapsed by operation of proviso to
Section 6 of the Act. Therefore, the ratio is clearly
inapplicable to the facts of these appeals.
In these circumstances, the High Court was wholly
unjustified in interfering with the acquisition and quashing
the notification and declaration under Section 6 of the Act.
The appeals are allowed. No costs.