Jharkhand High Court
Kohinoor Steel (P) Limited vs State Of Jharkhand & Ors on 10 March, 2011
Equivalent citations: 2011 (2) AIR JHAR R 431, AIR 2011 (NOC) (SUPP) 977 (JHAR.), (2011) 2 JCR 494 (JHA), AIR 2011 (NOC) (SUPP) 977 (JHA)
Author: R.R. Prasad
Bench: R.R. Prasad
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (C) No. 5923 of 2007
Kohinoor Steel (P) Limited through its
Manager Corporate Affairs Mr. Prabir Ghosh ... ... Petitioner
Versus
The State of Jharkhand and others ... ...Respondents
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CORAM: HON'BLE MR. JUSTICE R.R. PRASAD
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For the Petitioner : M/s Manjul Prasad, Sr. Ad. & A.K. Das, Ad.
For the State : J.C. to A.G.
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3/10.03.2011Heard Mr. Manjul Prasad, learned senior counsel appearing for the petitioner and learned J.C. to A.G. appearing for the State.
Learned counsel appearing for the petitioner submits that at the instance of the petitioner a proceeding under the Land Acquisition Act was initiated in the year 2008 for acquiring about 50.81 acres of land of different plots of Village Khuchidih, P.S. Chandil in the district of Saraikela-Kharsawan, detail of which is being described hereinbelow :-
Sl Details of land Applied Area of land Nature of land Date of No Land application
1. Mouza Kuchudi P.S. 0.18 acres Government 1.12.2005 Chandil Thana No. 194; land Saraikela-Kharsawan
2. Mouza Dhunabur P.S. 8.38 acres Government 29.10.2005 Chandil Thana No. 196, land Saraikela, Kharsawan
3. Mouza Bansa, P.S. 0.73 acres Now after Government OCT. 2006 Chandil Thana No. 195; verification Land Saraikela-Kharsawan Government land 0.12 Raiyati land .61
4. Mouza Dhunaburu P.S. 54.79 50.81 Now after Raiyati land 01.12.2005 Chandil Thana No. 196, verification.
Saraikela, Kharsawan
5. Mouza Kuchidih P.S. 70.73 0.53 Raiyati land 27.9.2006 Chandil Thana No. 194
6. Mouza Bansa, P.S. 62.64 Raiyati Land 27.9.2006 Chandil Thana No. 195
7. Mouza Dhunaburu P.S. 6.42 Raiyati Land 27.9.2006 Chandil Thana No. 196, Saraikela, Kharsawan According to the petitioner, the land was to be acquired urgently and as such, an amount to the extent of 80% of the total estimated value of the land was deposited in the year 2006-07 but still the proceeding has not reached to its final stage and thereby, the possession of the land has not been given to the petitioner for establishing Industry, though the State Government, according to the statement made in the counter affidavit, has already taken possession of those lands and that as the Collector has not prepared the award, the rest of the 20% amount could not be paid and under this situation, the petitioner has moved this Court for a direction to the Authority to prepare an award so that rest of the payments be made by the petitioner and the petitioner be given possession over the land.
A counter affidavit has been filed on behalf of the State, wherein it has been stated that since two years have already elapsed from the date of issuance of the notification under Section 4 of the Land Acquisition Act, a fresh estimate of the compensation amount is to be made and unless it is done and the payment is made, the petitioner is not entitled to have possession over the land.
Mr. Manjul Prasad, learned senior counsel for the petitioner, submits that as the matter was urgent, the process of acquisition admittedly got started in terms of Section 17 of the Land Acquisition Act and whenever a proceeding is initiated in terms of Section 17 of the Land Acquisition Act, there would be no application of Section 11-A of the Land Acquisition Act and thereby the question of termination of the proceeding after expiry of two years from the date of issuance of the notification under Section 4 of the Land Acquisition Act does not arise. Moreover, the plea taken by the State that a fresh estimate of the compensation amount is to be made is not tenable, as admittedly the State has not issued any notification in terms of Section 48 of the Land Acquisition Act denotifying the acquisition of land, which could not be done as admittedly the State Government has taken possession of the land.
Learned counsel in support of his submission has referred to a decision rendered in the case of U.P. Jal Nigam, Lucknow through its Chairman and another vs. M/s Karla Properties (P) Ltd. Lucknow and others {A.I.R. 1996 SUPREME COURT 1170}.
I do find sufficient force in the submission advanced on behalf of the petitioner. Admittedly, the process of acquisition of land in question was initiated at the instance of the petitioner under Section 17 of the Land Acquisition Act. In course of time, when a notification was made under Section 6 of the Land Acquisition Act, the petitioner did deposit 80% of the total estimated value of the land. Thereupon, as per the statement made in the counter affidavit, possession has even been taken by the State Government but the same was not handed over to the petitioner as the award was not prepared.
Now the stand has been taken by the State Government that as two years have already elapsed from the date of issuance of the notification under Section 4 of the Land Acquisition Act, a fresh estimate of the compensation amount is to be made as according to the respondents, the value has gone up. The question is as to whether the stand taken by the State is tenable? Perhaps, the said stand has been taken keeping in view the provision as contained in Section 11-A of the Land Acquisition Act, which reads as follows:-
"11-A. Period within which an award shall be made.--(1) 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".
According to this provision, if an award is not made 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, but in a case where process of acquisition is undertaken under Section 17, possession is being taken under Section 17(2) of the Land Acquisition Act, which in fact, according to the statement made in the counter affidavit, has been taken by the State Government and, therefore, the question of proceeding being lapsed after expiry of two years from the date of publication of the declaration does not arise.
Further, the State has not come forward to denotify the notification in terms of Section 48-A of the Land Acquisition Act and, therefore, it is not legal on the part of the State Government to say that fresh estimate of the compensation amount is to be made on new market rate after expiry of two years.
I am supported with this view propounded in a case of U.P. Jal Nigam, Lucknow through its Chairman and another (supra), wherein it has been held :
" ............... it is settled law that after the notification under Section 4(1) is published in the Gazette any encumbrance by the owner does not bind the Government and the purchaser does not acquire any title to the property. In this case, notification under Section 4(1) was published on March 24, 1973, possession of the land admittedly was taken on July 5, 1973 and pumping station house was constructed. No doubt, declaration under Section 6 was published later on July 8, 1973. Admittedly, power under Section 17(4) was exercised dispensing with the enquiry under Section 5-A and on service of the notice under Section 9 possession was taken, since urgency was acute, viz., pumping station house was to be constructed to drain out flood water. Consequently, the land stood vested in the State under Section 17(2) free from all encumbrances. It is further settled law that once possession is taken by operation of Section 17(2), the land vests in the State free from all encumbrances unless a notification under Section 48(1) is published in the Gazette withdrawing from the acquisition. Section 11-A, as amended by Act 68 of 1984, therefore, does not apply and the acquisition does not lapse.
Here, it be reiterated that admittedly, possession has been taken by the State Government and that no notification has been issued in terms of Section 48 of the Land Acquisition Act. Therefore, there would be no application of Section 11-A of the Land Acquisition Act.
Under that situation, there does not seem to be any justification or rationality in the statement made on behalf of the State that a fresh estimate of compensation amount is to be made.
Accordingly, respondent no. 4-Deputy Commissioner, Seraikela-
Kharsawan is directed to finalize the proceeding and to prepare the award within a period of three months from the date of receipt/ production of a copy of this order.
It goes without saying that immediately after preparation of the award, rest of the amount would be paid and on such payment possession of the land would be given to the petitioner.
With this observation and direction, this writ application stands disposed of.
(R.R. Prasad, J.) AKT