TMI Blog1995 (7) TMI 424X X X X Extracts X X X X X X X X Extracts X X X X ..... the Notification is an elaborate one. It is in several parts. It sets out inter alia the boundaries of the land proposed to be acquired. Part I defines several expressions occurring in the scheme. Part II states that the area (covered by the scheme) proposed to be acquired will be laid out and developed as indicated in the zoning plan and the lay out plan. It specifies the several areas of the land reserved for several general and special purposes mentioned therein. Part III contains building restrictions, type of buildings permitted . It sets out elaborately the conditions and requirements to be observed in the construction of the buildings. Part IV, titled Miscellaneous states that the requirements of this schedule shall be in addition to the requirement of any by laws and Local Act. It also empowers the Trust to relax any provisions of the Scheme with the prior sanction of the Government. Pursuant to the above Notification/Scheme, proceedings were initiated for acquiring the requisite extent of the land and an award passed on November 3, 1976. The compensation determined under the award was also paid to the persons interested in the land acquired. Possession of the land w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons 3 to 11-A provides for constitution of Trusts and matters incidental thereto while Chapter-III (comprising Sections 12 to 21-A) contains provisions regulating the proceedings of the Trusts and the Committees constituted under the Act. Chapter-IV provides for preparation and publication of and other particulars concerning the schemes to be prepared under the Act. Sections 22 to 27 provide for the preparation of development schemes and rehousing schemes while Section 28 prescribes the matters which may be provided for in such schemes. Sections 29 to 31 provide for matters incidental to the Improvement schemes. Section 36 provides inter alia for publication of the scheme so prepared. Section 38 provides that during the thirty days next following the first day on which any notice is published under Section 36 in counsel submitted that there are no words in Section 44-A which purport to do so nor are there any words therein which purport have the effect of nullifying the acquisition or to convey the title back to the erstwhile owners. If that was the intention of the Legislature, counsel submitted, it would have used clear and specific language providing for the said consequences. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urpose of executing the scheme. Such notice must state that the trust proposes to acquire such property for the purpose of carrying out the scheme under the Act and require such person, if he objects to such acquisition, to state his reasons in writing within a period of thirty days from the date of service of such notice. Section 40 provides that after considering the objections filed and after hearing the objectors who may desire to be heard, the Trust may either abandon the scheme with the approval of the State Government or apply to the State Government for sanction of the scheme with such modifications as it may deem necessary. Section 41 provides that upon receiving the recommendation of the Trust, the State Government may sanction the scheme with or without modifications or may refuse to sanction the scheme or may return it for reconsideration of the Trust. If the State Government chooses to sanction the scheme, Section 42 provides that it shall notify the sanction of such scheme and that thereupon the Trust shall proceed forthwith to execute the scheme. Sub-section (2) declares that a same as it may deem fit. Chapter-V sets out the powers and duties of the Trust where a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case of disagreement between members in the matter of measurement of land and the amount of compensation, while clarifying the scope and extent of the powers of the President of the Tribunal. The Schedule to the Act provides the modifications subject to which the Land Acquisition Act is made applicable for the purpose of acquiring the land for executing the schemes. While it is not necessary to notice the several provisions in the Schedule, reference is necessary to Clause 6 of the Schedule, which adds a new Section, Section 17-A in the Land Acquisition Act. The new section reads: 17-A. In every case referred to in section 16 or section 17, the Collector shall, upon payment of the cost of acquisition, make over charge of the land to the trust, and the land shall thereupon vest in the trust subject to the liability of the trust to pay any further costs which may be incurred on account of its acquisition. Clause (14) of the Schedule has introduced Section 48- A. It provides for payment of compensation where an award is not passed within one year of the declaration of Section 6. A perusal of the above provisions makes it clear that the land required for executing a s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sted? This involves the question whether Section 44-A is mandatory or merely directory. For the sake of convenience, we may set out the Section 44-A in full: 44-A. Time limit for execution of scheme. - Any scheme in respect of which a notification has been published under section 42, shall be executed by the trust within a period of five years from the date of such notification. Provided that the State Government may, if it is satisfied that it is beyond the control of the trust to execute the scheme within the said period, extend the same as it may deem fit. In our considered opinion, Section 44-A cannot be held to be mandatory in the sense that non-compliance with it leads to nullification of the acquisition which has already become final. Such non-compliance cannot also result in divesting of title of the Trust nor is there any obligation to restore the unutilised portion(s) of land to its erstwhile owners/persons interested. The reasons are the following : (a) The Section while using the expression shall does not provide the consequence of non-compliance with its requirement. One of the well-accepted tests for determining whether a provision is directory or mand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so paid, the Deputy Commissioner may make an order directing the person having the custody of the balance of the trust fund to pay the expense, or so much thereof, as may from time to time be possible, from that balance in priority to all other charges against the same. The section is self-explanatory and needs no elaboration at our hands. Section 44-A has to be read and understood along with this section which means that the Deputy Commissioner will have to take action under Section 55-C, in case of the failure of the trust to execute the scheme within the period of five years. If the time is extended under the proviso and yet the trust fails to execute the scheme within the extended time, the Deputy Commissioner can - ought to - resort to Section 55-C. Sections 55-D and 55-E make the acts and orders of the Deputy Commissioner subject to Government's order. It, therefore, cannot be said that Section 44-A or its proviso (b) The more important and substantial reason, of course, is that Section 44-A does not provide expressly or by necessary implication that non-compliance therewith results in nullification of the acquisition or in the divesting of title of the Trust or t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titled to any damages for the deprivation for the period they have been kept out of possession? These are only a few problems which may arise and are mentioned only to emphasise that not providing for all these matters is a sure indication of the provision in Section 44-A not being mandatory in the sense it is sought to be understood by the respondents. (c) Yet another feature to be noticed is the placement of the Section 44-A. It occurs in Chapter IV which provides for preparation and publication of the schemes under the Act. Chapter-V speaks of powers and duties of the Trust where a scheme has been sanctioned and Chapter VI contains provisions relating to acquisition of land required for execution of the scheme and other incidental matters. If the legislature intended to say that failure to execute the scheme within the time prescribed in Section 44-A leads to nullification of acquisition with all the attendent consequences, the Section should have found its place in Chapter VI - and with specific and clearer language. Learned counsel for the respondents, however, places strong reliance upon the Full Bench decision of the Punjab and Haryana High Court in Naval Singh. We hav ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
