TMI Blog1998 (3) TMI 689X X X X Extracts X X X X X X X X Extracts X X X X ..... y of the L T Ltd. which was engaged in Engineering Manufactures Industries which was for a public purpose . All the lands are situated in village Mandalla, Taluk Choryasi, District Surat. In SCA 1568/1987 acquisition was set aside on the ground that there was no compliance with the provisions of Rules 3 and 4 of the Land Acquisition (Companies) Rules, 1963 (`Rules' for short). In SCA 5149/89 acquisition was set aside not only on the ground of non-compliance with the Rules 3 and 4 of the Rules but also that petitioners therein were not served with notice under Section 9 of the Act before passing of the award. In SCA 5171 High Court held that the decision of the State Government for withdrawal from acquisition under Section 48 of the Act was neither illegal nor ultra vires though the same would be enforceable only on the issuing of notification under Section 48 of the Act. In this case, High Court also held that actual physical possession of the land had not been delivered to the acquiring body L T Ltd. Against the order passed in SCA 1568/87 both L T Ltd. and the State Government have filed special leave petition Nos. 11957/97 and 12986/97 respectively. Against the order in SCA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oint. Under Section 41 if the appropriate Government is satisfied after considering the report of the Collector under Section 5-A and on the report under Section 40 that the proposed acquisition is for the purpose mentioned in Section 40 it shall require the Company to enter into an agreement providing for the following matters, namely:- (1) the payment to the appropriate Government of the cost of the acquisition; (2) the transfer, on such payment, of the land to the Company; (3) the terms on which the land shall be held by the Company; (4) where the acquisition for the purpose of erecting dwelling houses or the provision of amenities connected therewith, the time within which, the conditions on which and the manner in which the dwelling houses or amenities shall be erected or provided; Under Section 42 every such agreement shall be published in the Official Gazette and shall thereupon have the same effect as if it had formed part of the Act. Under Section 55 of the Act powers have been conferred on the appropriate Government and on the Central Government to make rules. This Section, in relevant part, is as under: 55. Power to make rules.- (1) The appropriate Governm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cquisition of any land, that Government shall direct the Collector to submit a report to it on the following matters, namely- (i) that the company has made its best endeavour to find out lands in the locality suitable for the purpose of acquisition.; (ii) that the company has made all reasonable efforts to get such lands by negotiations with the persons interested therein on payment of reasonable price and such efforts have failed; (iii) that the land proposed to be acquired is suitable for the purpose; (iv) that the area of land proposed to be acquired is not excessive; (v) that the company is in a position to utilise the land expeditiously; and (vi) where the land proposed to be acquired is good agricultural land, that no alternative suitable site can be found so as to avoid acquisition of that land. (2) The Collector shall, after giving the company a reasonable opportunity to make any representation in this behalf, hold an inquiry into the matters referred to in sub-rule (1) and while holding such enquiry he shall (i) in any case where the land proposed to be acquired is agricultural land consult the Senior Agricultural Officer of the district whether or not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he occupier (if any) of such land and on all such persons known or believed to be interested therein, or to be entitled to act for persons so interested, as reside or have agents authorized to receive service on their behalf, within the revenue district in which the land is situate. (4) In case any person so interested reside elsewhere, and has no such agent, the notice shall be sent to him by post in a letter addressed to his last known residence, address or place of business and registered under Sections 28 and 29 of the Indian Post Office Act, 1898. In first special leave petition No 12986/97, land situated in Survey No 40, Village Mandalla, Taluk Choryasi in district Surat was subject matter of acquisition. M/s Mangal Park Cooperative Housing Society, respondent No. 1 challenged the action of the State Government in acquiring the land by issuing notification and declaration under Sections 4 and 6 of the Act on the ground that it acted without any authority of law and in purported exercise of the powers conferred upon it by committing fraud on the statute and by the colourable exercise of the said power and also without application of mind . First respondent, therefore, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as per the requirement of Rule 3 a Committee had been constituted by the State Government which consisted of (1) Secretary, Revenue Department (Land Acquisition), (2) Joint Commissioner of Industries, (3) Deputy Secretary, Agricultural Department (4) past M.L.A., (5) Member and (6) President of Zila Panchayat. In this affidavit it was also stated that the Assistant Collector, Surat prepared a detailed report which he submitted to the Collector and placed before the aforesaid Committee. Deputy Secretary, who was Ex-Officio Member Secretary of the Committee addressed a letter to all the members in this connection and along with that letter he circulated a note in connection with the acquisition of the land in question. President of the District Panchayat and a Member of the Committee also submitted a separate report to the Deputy Secretary, Revenue Department. The Committee thereafter met and discussed the matter and recommended acquisition of land for L T Ltd. to the Government. In this view of the matter it is difficult to understand as to how the High Court said that there was no compliance with Rule 3 by the State Government when as a matter of fact, as noted above, there was no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore, not right in quashing the acquisition proceedings in SCA 1568/87. In Special leave petition No. 11900/97 (arising out of SCA 5149/89), it was submitted by Mr. Naik, learned counsel for the appellant L T Ltd. that the writ petition should have been dismissed by the High Court on the ground of laches. In this case notification under Section 4 was issued on January 23, 1986, declaration under Section 6 on February 10, 1987, notices under Section 9 issued on January 27, 1989 and possession of the land taken over on July 5, 1989 and the writ petition was filed on July 19, 1989. Mr. Naik said in view of the law laid down by this court notification under Section 4 has to be challenged within a reasonable time and for any petitioner to contend that it was challenged immediately after possession of the land was taken over was not a relevant circumstance to be taken into consideration. He criticised the judgment of the High Court holding that no notices under Section 9 of the Act had been served upon the petitioners. He referred to averments made in the writ petition itself wherein petitioners themselves admitted that two separate notices under Section 9 were served upon them as di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the representative of the L T Ltd. at that time itself. In the High Court it was contended that no actual physical possession of the land had been taken. The petitioners filed affidavits of the Panchas who had signed the Panchanama. In these affidavits they stated that they were called to the office of the Panchayat and that their signatures were obtained on blank papers and that they had not gone to the sita and that neither the landlord was present not the actual possession was delivered to the acquiring body. Ready with these affidavits High Court noticed from the recitation in the Panchanama that it was nowhere mentioned that the panchas had gone to the site from the office of the panchayat. It was not disputed that in the revenue records it was L T Ltd. who was shown in possession of the land. Affidavits of the Panchas filed in the High Court which contained statements contrary to what was recorded in the Panchanama and against the revenue entries are quite meaningless and in our opinion High Court unnecessarily put undue reliance on the same. High Court could not convert itself into a revenue court and hold that in spite of the Panchanama and the revenue records actual ph ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... extent, was sufficient to constitute taking of possession. It appears that the appellant was not present when this was done by the Tehsildar, but the presence of the owner or the occupant of the land is not necessary to effectuate the taking of possession. It is also not strictly necessary as a matter of legal requirement that notice should be given to the owner or the occupant of the land that possession would be taken at a particular time, though it may be desirable where possible, to give such notice before possession is taken by the authorities, as that would eliminate the possibility of any fraudulent or collusive transaction of taking of mere paper possession, without the occupant or the owner ever coming to know of it. In Tamil Nadu Housing board vs. Viswam (Dead) by LRs. the issue whether the land in question was taken possession of in proceedings under the Act. It is not necessary for us to refer to the facts of that case. We find the following statement of law relevant to the controversy in the present case: It is settled law by series of judgments of this Court that one of the accepted modes of taking possession of the acquired land is recording of a memorandum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... original owners. Mr. Parmar therefore, justified the stand of the State Government in withdrawing from the acquisition. Panchanama mentioned in the affidavit of Mr. Parmar admits there is no construction and it is an open land. It is certainly diabolical to contend on the basis of Panchanama prepared on July 4, 1991 to say that possession of the land was not handed over to L T Ltd. on July 5, 1989. In view of the pendency of the proceeding in the High Court at that time and in the face of the interim order when High Court was seized of the matter it is difficult to appreciate how it was proper for the State Government to depute its officers to find out as to who were in possession of the land in question and then to justify its action under Section 48 of the Act. There is on record a letter dated April 12, 1990 addressed by the Assistant Collector, choryasi Prant to the Government advocate giving his comments on the affidavit of the petitioner (Respondent No.1) in SCA 5149/89. He sent his comments as under: On 05-07-1989 Circle Officer, Athwa has because of no occupant remaining present took possession in presence of Panchas and delivered to representative of Larsen and Toubro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Government is also aggrieved by the order allowing SCA 5149/89 whereby High Court quashed the notification under Section 4 and declaration under Section 6 of the Act. In this SCA 5149/89 State Government supported the stand of the L T Ltd. and also in this appeal. It has also stated that the possession of the land subject matter of the writ petition was taken over and delivered to L T Ltd. on July 5, 1989. Mr. Naik also submitted that it was not the requirement of law to issue notices to interested parties under Section 9 of the Act and he referred to a few decisions of this Court. In view of the fact, however, that there was no complaint of notices under Section 9 not having been served on the respondents, this question does not arise for consideration in this case. This Court has repeatedly held that writ petition challenging the notifications issued under Section 4 and 6 of the Act is liable to be dismissed on the ground of delay and laches if challenge is not made within a reasonable time. This Court has said that the petitioner cannot sit on the fence and allow the State to complete the acquisition proceedings on the basis that notification under Section 4 and the decl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or withdrawal from acquisition are justiciable and the beneficiaries for whom the land is acquired are to be heard. it is the beneficiary and in the present case L T Ltd. which is the affected party. When there is withdrawal from acquisition of the land, owners are well protected under sub-section (2) and (3) of Section 48 of the Act. Mr. Naik submitted that there cannot be any unilateral withdrawal and there has to be bona fide exercise of poser in case the State Government decides to withdraw fro acquisition before possession is taken over. State Government in the Revenue Department issued a `Yadi' (memo) on April 11, 1991 withdrawing from the acquisition of land under Survey No. 39 and 41/2 of the village Magdalla. This decision of the State Government was communicated to L T Ltd. on April 29, 1991/May 3, 1991. Yet another `Yadi' (memo) was issued by the State Government on May 3, 1991 withdrawing from acquisition of the land under Survey No. 44/2 in village Magdalla under Section 48 (1) of the Act. L T Ltd. was informed of this decision on June 3, 1991. High Court held that Section 48 created an absolute right as a dominion eminent in favour of the State which propos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sition all the lands which were acquired for petitioner, but only part of the lands in which the government found bona fide case for withdrawal from acquisition the Government has done so. Not only that but after the land were released from the acquisition the petitioner Larsen Toubro has filed objections and representations against the same. Immediate on getting the petition from Larsen Toubro petitioner herein on 21.6-1991 the Prant Officer Chorasiya Prant has written at the instructions of the Government to the land owners not to proceed further on the basis that the land have been denotified. This the been done because objections filed by Larsen and Toubro were under consideration. Thereafter having verified all the facts, Government was convinced that there was no reason to the change the said order and therefore Government i.e., Under Secretary, Revenue Department informed the Deputy Collector by his letter dated 15-07-1991 that the instructions which were given in the previous letter, stay order given is withdrawn. Mr. Naik strongly objected to the observations made by the High court that it would be open to the appellant to lay its claim and sue the State Government for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had also difficulties in finding accommodation in Surat for its employees and had to pay large amounts towards rent. The appellant said that the lands proposed to be withdrawn from acquisition were such that the planning of the appellant housing colony would go haywire. It was also submitted that the land proposed to be withdrawn from acquisition did constitute a compact block at one end of the lands acquired for the appellant housing colony. Various other pleas were also raised which did not find favour with the High Court and rather not adverted to. The appellant alleged that apart from legal submissions that appellant had been denied opportunity of being heard before decision was taken by the State government withdrawing from acquisition, the action of the state Government was politically motivated inasmuch as the decision was taken at the time of General Elections to the Parliament. This allegation has however been denied by the State Government. It has justified its action otherwise as stated above and asserted that it was not the requirement of law nor necessary to hear the appellant before taking decision to withdraw from acquisition under Section 48(1) of the Act. A great ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from acquisition would be of no consequence. This Court referred to its earlier decisions in State of Maharashtra Anr. vs. Umashankar Rajabhau Ors. [(1996) 1 SCC 299] and also in U.P. Jal Nigam, Lucknow through its Chairman Anr. vs. Kalra Properties (P) Ltd., Lucknow Ors. [(1996) 3 SCC 124] and said in this view of the matter even if we assume that there was an order for release of certain land from acquisition the same could not be given effect to in the absence of a notification denotifying the acquisition of land . In The Special Land Acquisition Officer, Bombay Ors. vs. M/s Godrej Boyce [JT 1987 (4) SC 218 = (1988) 1 SCC 50] the State Government wanted to withdraw from acquisition of land by exercising its power under Section 48 but the owner of the land insisted that the government should be directed to go ahead with the acquisition, take over the land and pay him the compensation. The High Court Struck down the order made under Section 48 and directed and State Government to acquire the lands of the respondent-owner. This Court held that the High Court committed error in doing so. In the context whether the view taken by the High Court that a decision of withdraw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llenged by the owner of the land by filling writ petition in the Allahabad High Court and an interim order was passed directing the parties to maintain status quo as regards possession. During the pendency of the said writ petition the government denotified the land from acquisition in exercise of its power under Section 48 of the Act. Challenge to this by the appellant in the High Court failed. Contention of the State before this Court was that the State was under no obligation to give any reason for withdrawing from the acquisition and when it was shown that the power was exercised bonafide it was not open to the Court to invalidate such an action even if the reason given by the State was found to be erroneous. it was submitted on behalf of the State that Section 48 contained no words of limitation as regards the exercise of power and the only limitation put upon the power of the State Government was that it could exercise that power till possession of the land sought to be acquired was taken and not thereafter. Strong reliance was placed by the State upon the decision of this Court in special Land Acquisition Officer, Bombay vs. Godrej and Boyce [JT 1987 (4) SC 218]. This Court, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot contemplate issue of any notification and withdrawal from the acquisition could be by order simpliciter. He said that Section 4 and 6 talked of notification being issued under those provisions but there was no such mandate in Section 48. It was thus contended that when statute did not require to issue any notification for withdrawal from the acquisition, reference to Section 21 of the General Clauses Act was not correct. Section 21 of the General Clauses Act is as under: 21. Power to issue, to include power to add to, amend, vary or rescind, notifications, orders, rules or bye-laws.- Where by any Central Act, or Regulation, a power to issue notification orders, rules, or bye-laws is conferred, then that power includes a power exercisable in the like manner and subject to the like sanction, and conditions, if any, to add to, amend, vary or rescind any notifications, orders, rules or bye-laws so issued. Mr. Salve said that Section 21 expressly referred to the powers being given to issue notifications etc. under an Act or Regulations and under this that poser included power to withdraw or rescind any notification in the similar fashion. It was therefore submitted that when ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing and who after giving the objector an opportunity of being heard and after hearing of such objections and after making such further enquiry, if any, as the Collector thinks necessary, is to make a report to the State Government for its decision. Then the decision of the State Government on the objections is final. Before the applicability of other provisions in the process of acquisition, in the case of company, previous consent of the State Government is required under Section 39 of the Act nor unless the company shall have executed the agreement as provided in Section 41 of the Act. Before giving such consent, Section 40 contemplates a previous enquiry. then compliance with Rules 3 and 4 of the Land Acquisition (Company) Rules, 1963 is mandatorily required. After the stage of Section 40 and 41 is reached, the agreement so entered into by the company with the State Government is to be published in the Official Gazette, This is Section 42 of the Act which provides that the agreement on its publication would have the same effect as if it had formed part of the Act. After having done all this, State Government cannot unilaterally and without notice to the company withdraw from acq ..... X X X X Extracts X X X X X X X X Extracts X X X X
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