Gujarat High Court
Maneka Co-Op. Housing Society Ltd. And ... vs State Of Gujarat And Ors. on 29 January, 1993
Equivalent citations: (1994)1GLR50
JUDGMENT R.A. Mehta, J.
1. Both these petitions involve common questions and arise from the similar facts and are claiming similar reliefs and therefore, both are heard and disposed of together by this common judgment.
2. The petitioners pray that the Government order dated 29-8-1992 Annexure "O" issued under Section 48(1) of the Land Acquisition Act be quashed and set aside and the Government be directed to make an award and complete acquisition proceedings and pay compensation at the rate of Rs. 92/- per sq. mtr., i.e., Rs. 98,28,728/- to the petitioners in the first petition and a corresponding amount in the other petition. It is mainly contended that the possession of the land had been taken by the Government and, therefore, the Government had no power to withdraw from the acquisition and reliance has been placed on the language of Section 48 of the Land Acquisition Act which provides that the Government shall be at liberty to withdraw from the acquisition of any land of which possession has not been taken.
3. The acquisition was for O.N.G.C. (CISF staff quarters and office) under Section 4, the notification was issued on 3-1-1990 and under Section 6 the notification was issued on 23-7-1990. Section 9 notices were issued in December, 1990. The possession was taken on behalf of the Government on 29-10-1991. The order of withdrawal under Section 48(1) is passed on 29-8-1992.
4. It is clear from the record that there were negotiations and ultimately an agreement was reached about consent award on 26-8-1991 as seen from Annexure "1". Condition No. 2 of that agreement is that the possession of the land has not been taken, but the Land Acquisition Officer shall initiate proceedings for taking possession within three months. In pursuance of this agreement dated 26-8-1991, on 28-8-1991, the Land Acquisition Officer passed an order that under the agreement, a sum of Rs. 1,28,26,088/- would be payable and, therefore, the Land Acquisition Officer directed half of the amount rounded to Rs. 65 lacs to be paid to the land owners by the acquiring body O.N.G.C. It was further directed that as and when the award is declared, such payment would be adjusted towards final payment. The advance payment was directed to be made within 10 days. A reminder was sent on 30-9-1991 (Annexure "K"), still however, no payment was forthcoming from O.N.G.C. It appears that the Circle Officer of the Land Acquisition Officer is purported to have taken possession under Annexure "L" (page 65). That possession receipt is in two parts. The first part is for taking possession from the land owners by the Circle Officer of the Land Acquisition Officer and the second part is for giving possession by the Circle Officer of the Land Acquisition Officer to the acquiring body. Both these are simultaneous as seen from the date filled in with ink in both. However, the possession is admittedly not taken by the O.N.G.C. and none has signed on behalf of the O.N.G.C. and it is left blank. On 22-11-1991, the possession receipt which was sent to the O.N.G.C. is returned by O.N.G.C. without signature stating that until the approval is received from the O.N.G.C. headquarters, Dehradun the possession was not to be taken and therefore, possession receipts were returned unsigned and were not to be acted upon. This was communicated to the petitioner on 25-2-1992 Annexure "G". The letter of O.N.G.C. dated 6-1-1991 is at page 67.
5. The petitioners of the first petition had filed Special Civil Application No. 4630 of 1992 on 3rd September, 1992 and the High Court has dismissed the said petition. In the said petition, a mandamus was sought directing the Land Acquisition Officer to pass an award in respect of the lands in terms of the agreement dated 26-8-1991. At the final hearing of that matter on 3-9-1992, it was declared on behalf of the Government that the lands in dispute had been released from acquisition under Section 48(1) and further" that proper proceedings would be initiated for payment of compensation under Section 48(2) of the Act. In that view of the matter that petition did not survive and on that ground, it was rejected and Rule was discharged. While doing so, the Court, had observed that it would be open to the petitioner to file a fresh petition if permissible under law, to challange the decision of the State Government to release the land in dispute from acquisition. By the present petition that withdrawal from acquisition is challenged. It is submitted that since the possession of the land was taken by the Government, the Government cannot withdraw from the acquisition. Reliance is placed on some judgments to which we refer hereinbelow.
In the case of Special Land Acquisition Officer, Bombay v. Mfs. Godrej & Boyce Mfg. Co. Ltd. it is submitted that the Supreme Court has held that the title to the land vests in the Government only when possession is taken by the Government. Till that point of time, the land continues to be with the original owner and so long as possession is not taken over the acquisition proceeding does not divest its owner in respect of the land. The following observations of the Supreme Court in para 5 are relied upon:
It is in view of this position, that the owner's interests remain unaffected until possession is taken, that Section 48 gives a liberty to the State Government to withdraw from the acquisition at any stage before possession is taken.
This observation of the Supreme Court is in the context of the language of Section 16.
Sections 16 and 17 are the two Sections under the heading "taking possession". Marginal note of Section 16 is the power to take possession and marginal note of Section 17 is "the State power in case of urgency". Under Section 16 when the Collector has made an award under Section 11, he may take possession of the land which shall thereupon vests absolutely in the Government free from all encumbrances. Similarly under Section 17, in case of urgency, whenever the appropriate Government so directs, the Collector, though no such award has been made, may on expiry of 15 days from the publication of the notice mentioned in Section 9(1) take possession of any land needed for a public purpose. Such land shall, thereupon vest absolutely in the Government free from all encumbrances. These are the only provisions in the Act for "taking possession" and absolute vesting. Section 48 provides that any land "of which possession has not been taken". It would only mean that the possession to be taken under Section 16 or 17, it would have the legal effect of absolute vesting in the Government and after such vesting, it would not be open to the Government to withdraw from the acquisition and divest of the land. In the aforesaid cases, the Supreme Court has held that "under the scheme of the Act, neither the notification under Section 4 nor declaration under Section 6 nor notice under Section 9 is sufficient to divest the original owner to any other person interested in the land of his right therein. The Supreme Court has further observed that Section 16 makes it clear beyond doubt that the title to the land vests in the Government only when possession is taken by the Government under Section 16. Section 16 requires two things for absolute vesting: (1) Award (2) Possession. Till that point of time, the land continues to be of the original owner. In the present case, there is no award and therefore, there is no vesting. It is, therefore, clear that unless and until there is a statutory vesting by (i) award and (ii) "taking possession" the Government is free to withdraw from the acquisition.
6. The next judgment relied upon is in the case of Rajkumar Rajindra Singh v. State of Himathal Pradesh and Anr. reported in AIR 1982 HP 1992. The observation relied upon by the petitioner is that "The only criteria for the application of Section 48 is as to whether the possession has been taken over by the Government." But this observation is in the context of the finding that the possession of the property had been taken by the Government in pursuance of the award and, therefore, it was not competent for the Government to invoke the provisions of Section 48 for the withdrawal of the acquisition proceedings. In fact, in para 10 of the judgment, the High Court has observed that "It was not disputed that the respondents could withdraw from the acquisition of the land if possession of the acquired land had not been taken in pursuance of the award. Therefore this judgment also does not help the petitioners. On the contrary, it shows that taking of the possession contemplated by Section 48 is taking of the possession pursuance of an award under Section 16 or in case of "urgency" under Section 17 of the Act which has effect of statutory vesting.
7. The case of Trustees of Bai Samarath Jain Shvetamber Murtipujak Gyanodhya Trust and Ors. v. State of Gujarat reported in AIR 1981 Gujarat 107 directly concludes the question against the petitioners. In para 8 of the judgment, it is observed as under:
8. It is necessary in this context to note that the expression "to withdraw from the acquisition of land of which possession has not been taken" used in Section 48 has reference to Section 16 and Section 17. It is under Section 16 of the Land Acquisition Act that the Collector, after making an award under Section 11 takes possession of the land. It is applicable to the instant case. Section 16 provides as follows:
When the Collector has made an award under Section 11, he may take possession of the land, which shall thereupon vest absolutely in the Government free from all encumbrances.
If possession has been taken, then by virtue of the provisions of Section 16, the owner of the land is divested of his title and the title to the land vests in the Government absolutely free from all encumbrances. Under such circumstances, the Government by simply withdrawing from acquisition cannot divest of its title and return it to its original owner. Therefore, the concept of possession having not been taken as expressed in Section 48 appears to have reference to the divesting and vesting of title or has reference to the transfer of title from the original owner to the State Government. Section 17 provides for the same situation. It comes into play where urgency Clause has been applied and possession has been taken before making an award under Section 11.
8. The petitioners have also relied upon the case of Lt. Governor of Himachal Pradesh and Anr. v. Sri Avinash Sharma . After referring to the provisions of Section 48, the Supreme Court has observed in para 6 as follows:
Power to cancel a notification for compulsory acquisition is, it is true, not affected by Section 48 of the Act; by a notification under Section 21 of the General Clauses Act, the Government may cancel or rescind the notifications issued under Sees 4 and 6 of the Land Acquisition Act. But the power under Section 21 of the General Clauses Act cannot be exercised after the land statutorily vests in the State Government.
The Supreme Court has further observed in para 7 as under:
It is clearly implicit in the observations that after possession has been taken pursuant to a notification under Section 17(1), the land is vested in the Government, and the notification cannot be cancelled under Section 21 of the General Clauses Act, nor can the notification be withdrawn in exercise of the powers under Section 48 of the Land Acquisition Act. Any other view would enable the State Government to circumvent the specific provision by relying upon a general power. When possession of the land is taken under Section 19(1)), the land vests in the Government. There is no provision by which land statutorily vested in the Government reverts to the original owner by mere cancellation of the notification.
It is thus, clearly held by the Supreme Court that statutory vesting of title in the land is necessary before the Government loses the liberty to withdraw from the acquisition.
9. The next judgment relied upon is in the case of State of Bihar v. Ram Ballabhdas Jaalan and Anr. reported in AIR 1960 Patna 400. In that case, the Full Bench has held that "Under a proceeding of land acquisition, the title of the land does not pass to the State as soon as the award under Section 11 is made and is filed under Section 12, but it is differed till the decision is taken under Section 16 of the Act." This judgment is of no assistance to the petitioners. It nowhere deals with the situation where decision is taken neither under Section 16 nor under Section 17 of the Act and there is no vesting in the Government. No. question under Section 48 had arisen there.
10. In the case of Burn & Co. Ltd. v. State of West Bengal reported in AIR 1976 Calcutta 389, the Government had taken possession of the land under Section 17(1) of the Land Acquisition Act and the land had accordingly, vested in the Government. However, in the proceedings for compensation, there was nil award on the ground that it was forest land which was already vesting in the Government and the Calcutta High Court held that the Government had taken possession of the land under Section 17(1) by applying urgency Clause applicable to waste land. Then, it was not open to the Government to say that it was a forest land which was already vested in the Government. There was no question of withdrawing from the acquisition and there was no discussion about Section 48 of the Act. Therefore, this judgment also is of no assistance to the present case.
11. The learned Counsel for the petitioner submitted that here, taking of the possession is sufficient on the plain language of Section 48, to deprive the Government of any right of withdrawing from the acquisition and it is submitted that Section 48 only puts a condition of possession and not of vesting the title in the Government. It is not possible to accept this contention in view of the fact that "taking possession" is specifically provided under that heading "taking possession" in Sections 16 and 17 which provision if expressly provides for statutory vesting of the land in the Government on taking possession under these provisions and it is because of absolute statutory vesting by operation of Section 16 or 17 that the Government is precluded from withdrawing from the acquisition. As held by the Supreme Court, after statutory vesting, there is no question of unilaterally divesting by the Government by any administrative order. But before such vesting, any party is free to change its mind and the Government is free to withdraw from the acquisition, subject, of course, to the provision of Section 48(2) providing for compensation if any one has suffered any damage because of the proceedings for acquisition from which the Government has later on withdrawn.
12. The learned Counsel for the petitioners have also submitted that Section 48 order withdrawing from the acquisition is illegal and invalid on the ground that the procedure applicable to the issuance of the notification under Sections 4 and 6 has not been followed. This argument is based on a misconception. The Government has not acted under its general power under Section 21 of the General Clauses Act where an act done after following the required procedure can be undone by following the same procedure. In the present case. Sections 4 and 6 notifications are not cancelled, but an independent power is exercised and exercise of that power of withdrawal from the acquisition is not subject to any such condition. Sections 4 and 6 notifications are not cancelled and therefore, the procedure of Sections 4 and 6 is not required to be adopted.
13. In this context, reliance, was placed on the Andhra Pradesh High Court judgment in the case of Sadar Anjuman Ahmediyya Muslim Mission v. State of Andhra Pradesh and Ors. reported in AIR 1980 AP 246. There is a rule made by the Governor of Andhra Pradesh under Section 55 of the Act which provides that if the Government decides to give up the acquisition, a notification under Section 48(1) withdrawing from such acquisition shall be published by them. There is no such corresponding rule in Gujarat. In that case, there was a mere proposal for withdrawal from the acquisition sent to the Government for approval and it was not approved by the Government and, therefore, the High Court held that there was no withdrawal from the acquisition.
14. Manual of Land Acquisition for the State of Gujarat in para 303(B) states that the Land Acquisition Act does not prescribe any formality for withdrawing from the acquisition under Section 48 and mere cessation of proceedings is sufficient, and when Government decides to withdraw and decision is communicated to the owner of the land, it should be held that the Government has withdrawn from the acquisition. On plain language of Section 48, no formality for effecting withdrawal by the Government is prescribed and any act which manifests the intention of the Government to withdraw from the acquisition and is communicated to the person interested would be sufficient to enable the Government to effectively withdraw from the acquisition.
15. It was lastly submitted that the Government and the acquiring body O.N.G.C. are the State within the meaning of Article 12 and they are estopped from rescinding from their promise by equity of promissory estoppel. It is submitted that by issuance of Section 4 and 6 notifications and Section 9 notice and subsequent agreement and taking possession, the respondents have made promise and they must be held to be bound by the promise. In view of the statutory provision and the statutory power under Section 48 of the Act, there cannot be any estoppel against the State Government. Moreover, this is not in the realm of a contract, but these are statutory proceedings and initiation of those proceedings including possible withdrawal under the powers reserved to the Government have to be taken into account and cannot be excluded. Therefore, this contention also cannot help the petitioners.
16. It was lastly submitted that the award has been made in the present case and reliance has been placed on the letter dated 5/25th September, 1991 whereby the Land Acquisition Officer has informed the acquiring body O.N.G.C. that the award has been drafted and is ready for declaration as soon as the amount of compensation is deposited by the Commissioner and it is stated that the Commission may deposit the amount of compensation so that this award/order can be declared. Therefore, it is submitted that the award has been made. It is not possible to uphold this contention. The preparation of the award and the making of the award are two different steps and the award can be said to have been made only when it is legally effective and merely drafting and making ready an award for declaration is not making of the award. Making of the award is only by its due declaration and signing of the same. The authority competent to make the award has made it clear that the award would be declared only after the deposit is made. Therefore, the intention of the authority competent to make the award also manifests that he had not made and declared the award. Only draft is prepared and if the amount is deposited, he may thereafter, make the award. But till he makes the award, the draft award has no effect of award and it cannot be said that the award is made.
These were the only contentions raised by the learned Counsel. Since all of them fail, both the petitions are dismissed.