Kerala High Court
Abdul Majeed Sahib And Anr. vs District Collector, Kollam And Anr. on 9 July, 1993
Equivalent citations: AIR1994KER171, AIR 1994 KERALA 171, ILR(1994) 1 KER 18, (1994) LACC 385, (1994) 1 KER LJ 301, (1993) 2 KER LT 317
Author: M. Jagannadha Rao
Bench: M. Jagannadha Rao
JUDGMENT Sreedharan, J.
1. This original petition has come up before us on a reference made by a learned single Judge of this Court on the question as to whether in a compensation claim under SECTION 48(2) of the Land Acquisition Act, withdrawal notification is necessary or withdrawal from the acquisition can be presumed in a case falling under Section 11A of the Act.
2. Short facts necessary for decision of the issue referred are as follows.-- A notification under Section 4(1) of the Land Acquisition Act, hereinafter referred to as "the Act", was published in 1988 for acquiring an extent of nearly 50 Cents of property belonging to the petitioner. Gazette notification was dated 26-5-1988 and paper publications dated 10-6-1988 and 17-6-1988 issued. That was followed by a declaration under Section 6 of the Act in June, 1988. The last date of the notification published in the paper is dated 17-6-1988. The acquisition was for the Telecommunication Department, for the purpose of construction of a Telephone Exchange building at Pathanapuram While the acquisition proceedings were in progress, there was an attempt to negotiate with the petitioner for the purchase of the property. Special Tahsildar, who was in charge of the acquisition, valued the property at Rs. 11,70,000/- and requested the Telecommunications Department to deposit that amount. He did so pursuant to an undertaking given by the power of attorney holder of the petitioner. The undertaking given by the power of attorney holder is to the following effect:--
"I, M. Bava Sahib for and on behalf of my sons Mr. B. Majid Sahib and Mr. B. A. Salim Sahib by Power of Attorney hereby agree for the compensation fixed for the award to be passed in respect of the above acquisition, as required by the Telecom Department vide their letter No. TDM Quilon 1003/BPH/ BLDG/90-91/8 dated 29-5-1990.
1 also agree that I will not claim/ approach the Court for any additional compensation in respect of the acquisition of 19.8 area of land in Survey No. 478/1/21-2 of Pathanapuram village".
This undertaking was filed by the power of attorney holder on 8-6-1990. On getting intimation of this, the Telecom District Manager, Kollam sent communication dated 14-6-1990 informing that the Land Acquisition Officer has not mentioned anything about the implication of the parties undertaking as to whether it is a consent award case or not. They had also forwarded legal opinion obtained by them to the Collector for his remarks. The legal opinion obtained by the Telecom Department was to the effect that the Department should obtain a clear statement from the Special Tahsildar to the effect that the award to be passed is reckoned as "consent award" and in full settlement of all claims of the landlords. According to the legal advisor, the wordings in the undertaking "as required by the Telecom Department" seems to be intentional, which would give rise to a loophole to the landlords to approach the Court in future. Special Tahsildar informed the Telecom District Manager that he had not examined the legality or otherwise of the undertaking now given by the power of attorney holder. Thereupon the Telecom District Manager by his communication dated 16-6-1990 informed the Collector that his Department is not able to proceed further without examining the legality or otherwise of the undertaking given by the land owner. Thereupon the Collector sent a communication dated 9-7-1990 to the Special Tahsildar to ascertain whether the party was willing to handover the land to the Post and Telegraph Department as per the land value already fixed and if so, to get an agreement executed after obtaining the fund and to pass an award before the proceedings lapse. To this communication, it appears that the Special Tahsildar replied stating that the landlords are prepared to handover possession on accepting the value already fixed by the officer. District Collector then required the Post and Telegraph Department to provide the funds and to get the agreement executed at 12.30p.m. on 18-7-1990. But, by that time the two-year period fixed under Section 11A of the Act had already expired and it was not possible to pass an award. Consequently the proceedings lapsed. Thereupon petitioners moved the Collector for getting a sum of Rs. 3,94,000/- as compensation for the damages under Section 48(2) of the Act.
3. As stated earlier, declaration under Section 6 of the Act was published on 17-6-1988. Section 11A enjoins the Collector to make an award under Section 11 of the Act within a period of two years from the date of the publication of declaration. It also states that if no award is made within that period, the entire proceedings for the acquisition of the land shall lapse. Since declaration under Section 6 was dated 17-6-1988, the award should have been passed by the Collector on or before 16-6-1990. It is the admitted case that the Collector did not pass the award on or before 16-6-1990. Even after 16-6-1990, Collector was earnestly pursuing the acquisition proceedings to have negotiated settlement. That is clear from the communications sent by him to the Telecom Division Manager subsequent to 16-6-1990. When the petitioner came forward with an offer to handover possession of the property on getting the amount fixed by the Land Acquisition Officer, the Telecom District Manager entertained certain doubts. This is evident from his communication dated 29-5-1990, seen at page 483 of the files handedover to us by the learned Government Pleader. We take it worthwhile to read the same :--
"Kind attention is invited to your office Endt. No. LA3, 50398/84 dated 30-3-1987 in which the report of the Tahsildar furnishing the details for 4(1) notification in respect of the above acquisition was forwarded (copy enclosed for ready reference). According to that report the land value was fixed at Rs. 50,000/- per cent. But in the payment of compensation requested for the same acquisition by the Spl. Tahsildar LA No. II Quilon vide his letter No. C. 234/87 dated 16-4-1990 the land value fixed is about Rs. 14,000/- per cent (copy enclosed for reference). As there are chances for the owners to approach the court for enhanced compensation on the basis of the valuation made by the Tahsildar at the initial stage, an undertaking from the owners of the land stating that they are satisfied with the compensation fixed now and that they will not claim/or approach the court for any additional compensation in this regard may be obtained as the Department cannot pay huge amount as additional compensation later".
This communication is the one referred to in the undertaking filed by the power of attorney holder before the Special Tahsildar. Since that undertaking made specific reference to the letter dated 29-5-1990, the Telecommunication Department wanted to have its legal consequences examined. Special Tahsildar admitted that he had not examined the legal consequences. In such a situation, the Telecommunication Department could not execute the agreement on or before 16-6-1990. The further communication between the Collector and the Telecommunication Department shows that they had no intention to back out from the acquisition proceedings, but they wanted to have the matters clarified. Files thus establish beyond any doubt that the Department had not allowed the proceedings to lapse by efflux of time to cover up the intention to withdraw from the acquisition proceedings. In fact they wanted to push through the transaction. But, the Collector could not pass the award because of the mandate contained in Section 11A of the Act. On the facts of this case, we are clear in our mind that the Collector had not allowed time to expire to wriggle out of the acquisition proceedings. In other words, there is no material to show that the Government had any intention to withdraw from the proceedings and with that intention allowed to lapse the period fixed under Section 11A of the Act.
4. Section 48 of the Act is in the following terms:--
"48. Completion of acquisition not compulsory, but compensation to be awarded when not completed.-- (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.
(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 the 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":
Under Clauses (2) and (3), owner of the land is entitled to damages where the Government decides to withdraw from the acquisition proceedings. Situation contemplated by Clause (2) does not take within its ambit that arising from the lapse of proceedings under Section 11A of the Act. Can the termination of land acquisition proceedings by virtue of the operation of Section 11A be equated to withdrawal from acquisition? Can it be said that the Government had withdrawn from the acquisition proceedings in a case where the notification has lapsed by efflux of time fixed by Section 11A of the Act?
5. Section 48 of the Act came up for consideration before the Supreme Court in State of M.P. v. Vishnu Prasad, AIR 1966 SC 1593. While repelling the contentions that a notification under Section 4(1) of the Act can come to an end only by a withdrawal as contemplated by Section 48(1) of the Act. Their Lordships observed:--
"Section48(1) is a special provision for those cases where proceedings for acquisition have gone beyond the stage of the issue of notice under Section 9(1) and it provides for payment of compensation under Section 48(2) read with Section 48(3). We cannot, therefore, accept the argument that without an order under Section 48(1), the notification under Section 4 must remain outstanding. It can be cancelled at any time by Government under Section 21 of the General Clauses Act and what Section 48(1) shows is that once Government has taken possession, it cannot withdraw from the acquisition. Before that, it may cancel the notification under Sections 4 and 6 or it may withdraw from the acquisition under Section 48(1). If no notice has been issued under Section 9(1) all that the Government has to do is to pay for the damage caused as provided in Section 5; if on the other hand, a notice has been issued under Section 9(1), damage has also to be paid in accordance with the provisions of Section 48(2) and (3)".
Section 48(2) can come into operation only if there is a conscious withdrawal from the proceedings initiated under the Act. Whenever the proceedings happen to lapse on account of efflux of time and such lapsing is not a result of deliberate or conscious withdrawal from the proceedings, Section 48 cannot come into operation. In the instant case even after the lapse of two-year period fixed under Section 11A, the Collector was earnestly pursuing the matter for getting the agreement executed for the negotiated purchase of the property owned by the petitioners. On the facts and circumstances of this case, we are clear in our mind that no intention to withdraw from the proceedings can be spelled out. Lapse of proceedings under Section 11A of the Act can take place even without any volition or conscious decision on the part of the Government to withdraw from the proceedings. When proceedings lapse under such circumstances, according to us, Section 48 of the Act cannot come into play.
6. Identical issue came up before a Division Bench of the Andhra Pradesh High Court in N. Narasimha Rao v. Chief Secretary, Government of Andhra Pradesh, 1990 (3) ALT 462. The Bench observed :--
"The lapse of proceedings under Section 11A could take place without any volition or conscious decision on the part of the Government as in the present case. In our view, a case of withdrawal from acquisition under Section 48 arises only in a situation where the appropriate Government considers the expediency or desirability of concluding the acquisition and then reaches a conscious decision thereon. In other words, there should be an application of mind on the part of the appropriate Government on the question of continuance or otherwise of the proceedings for the acquisition of the land of which possession has not been taken. It would be straining the language of Section 48 if the lapse of proceedings under Section 11A are equated to withdrawal of proceedings under Section 48 by the appropriate Government".
We are in respectful agreement with this statement of the law. As stated earlier, the files now made available by the learned Government Pleader disproves any conscious or deliberate action on the part of the Collector to withdraw from the acquisition proceedings. The Special Tahsildar, who wanted to have the acquisition on the basis of negotiated settlement, did not go into the legal consequences of the terms of the settlement proposed by the land owners. By the time the matter was pursued, the two-year period fixed under Section 11A expired. Consequently, the Collector was incapacitated from passing an award. Lapse of the proceedings under such circumstances can never be considered as a withdrawal from the acquisition proceedings. The result is, Section 48 will not be attracted to the instant rase. The result, therefore, is petitioners are of entitled to clim any compensation in terms of Section 48 of the Act. Petitioners are not entitled to the special remedy under Section 48(2) and (3) of the Act.
In the result original petition fails. It is accordingly dismissed.