Bal Krishan Sharma & Ors. v. State of H.P & Ors.

to the writ petitioners. 2(iii). Smt. Kamlesh and others Versus State of Himachal Pradesh and others4 and Vikram Singh Versus State of Himachal Pradesh and others5 were instituted seeking to set aside notification dated 01.03.2023 issued under Section 19 of the Act, whereunder, declaration was issued qua 125-4 bighas of land to be acquired for public purpose, namely construction of Bhanupali-Bilaspur-Beri, New Broad Gauge Railway Line. The main contention urged by the petitioners therein was that declaration under Section 19 of the Act was not made by the respondents and published within one year, as is the mandate of Section 19(7) of the Act, therefore, the same is liable to be rescinded. While dismissing the writ petitions, it was held that though Section 11 of the Act clearly mandates that a 4 CWP No.4829 of 2023, decided alongwith connected matter on 11.12.2023 5 CWP No.4300 of 2023, decided alongwith connected matter on 11.12.2023 4 notification in terms of Section 11 has to be published in the manner prescribed therein, but Section 19 does not envisage that declaration made thereunder shall be effective only from the date of its publication.

Therefore, whereas publication is sine qua non as far as the notification issued under Section 11 is concerned, but the same is not so, as far as making a declaration as provided in Section 19 is concerned. Section 19(7) of the Act further provides that where no declaration is made under Sub-section (1) within 12 months from the date of preliminary notification, then such notification shall be deemed to have been rescinded; In this sub-section, there is no mention that the declaration has to be construed as from the date of its publication. Relevant paras from the decision are as under:- the Act clearly mandates “14. This Court is of the considered view that whereas that a Section 11 of notification in terms of Section 11 has to be published in the manner prescribed therein, Section 19 of the Act does not envisage that the declaration made thereunder shall be effective only from the date of its publication.

In fact, whereas on one hand, Sub-section (1) of the Section 11 provides that whenever it appears to the appropriate Government that land in any area is required for the public purpose, a notification to the said effect shall be published in the manner prescribed, on the other hand, Sub-section (1) of Section 19 provides that when appropriate Government is satisfied, after considering the report, if any, made under Sub-section (2) of Section 15, that any particular land is needed for a public purpose, then a declaration shall be made to that effect etc. Therefore, whereas publication is sine qua non as far as notification issued under Section 11 is concerned, but the same is not so, as far as making a 5 declaration as provided in Section 19 is concerned. In fact, Subsection (7) of Section 19 further provides that where no declaration is made under Sub-section (1) within twelve months from the date of preliminary notification, then such notification shall be deemed to have been rescinded and in this Sub-section also there is no mention that the declaration has to be construed as from the date of its publication.

As observed by me hereinabove, the provisions of Section 11 and 19 of the 2013 Act are pari materia to Sections 4 and 6 of the Land Acquisition Act, 1894. Therefore, the adjudication made by the Hon’ble Supreme Court as well as Hon’ble Division Bench of this Court holds good while interpreting the provisions of the Statute in force also and the only conclusion that can be arrived at by the Court is that though declaration has to be made within one year as from the date of publication of notification under Section 11(1) of the 2013 Act, but the same need not be published within one year in the official gazette etc. to make it effective. If such a declaration is made within one year as from the date of issuance of notification under Section 11, then there is compliance of Section 19 of the Act and declaration is not bad simply because it has not been published within one year from the date of publication of notification issued under Section 11 of the Act.” 2(iv). Feeling aggrieved against the above decision, Smt. Kamlesh and others2 was preferred. Hon’ble Division Bench considered the contentions of the appellants that declaration issued under Section 19(7) of the Act ought to be issued within 12 months from the date of preliminary notification under Section 11(1) thereof, but in the instant case, the date of preliminary notification under Section 11(1) was 19.02.2022, whereas the date of declaration under Section 19(1) of the Act was 01.03.2023; The latter was issued beyond 12 months from the former, therefore, 6 the proceedings ought to have been quashed. This contention was accepted. The appeal was accordingly allowed. It was held that:- The preliminary notification under Section 11(1) of the 2013 Act bears the date ‘19.02.2022’ and it was published on 02.03.2022, but the date of preliminary notification cannot be taken to be

02.03.2022 having regard to the language used in Section 11(1) of the Act and it has to be taken to be 19.02.2022; Since declaration under Section 19 bears the date

01.03.2023 and was published on 18.03.2023, irrespective of whichever of these dates is taken into account, it had to be held that declaration was not issued within 12 months from the date of preliminary notification, which was

19.02.2022. Relevant portion from the decision is extracted hereinafter:- “4) It is contention of the appellants before the learned Single Judge that declaration issued u/s 19 (7) of 2013 Act ought to be issued within 12 months from the date of preliminary notification under Section 11(1) thereof ; in the instant case the date of the preliminary notification u/s 11(1) was 19.02.2022, but the date of declaration under Section 19(1) of the 2013 Act was 01.03.2023; that the latter was issued beyond 12 months from the former; and therefore the said proceedings ought to be quashed. 30) Admittedly, instant case, the preliminary notification u/s 11(1) of the 2013 Act bears the date 19.02.2022 and it was published on 02.03.2022. But the date of such preliminary notification cannot be taken to be 02.03.2022 in view of the language of section 11(1) of the 2013 Act and it has to be taken to 7 be 19.02.2022 only having regard to the language used in Section 11 (1) of 2013 Act.

31) Since the declaration u/s 19 bears the date 01.03.2023 and was published on 18.03.2023, irrespective of whichever of these dates is taken into account, it is clear that the declaration is not issued within 12 months from the date of preliminary notification, which is 19.02.2022. 32) The learned Single Judge unfortunately does not appear to have noticed the difference in language between the provisions dealing with preliminary notification in the Land Acquisition Act, 1894 and in Section 11 (1) of the 2013 Act and instead proceeded on the question whether the declaration made u/s 19 is required to be the date of published within 12 months preliminary notification or not. 33) While it may be true that the declaration u/s 19 is not required to be published within the period of 12 months from the date of preliminary notification, it is still required to be issued within 12 months from the date of the preliminary notification.

34) If the date of the preliminary notification is 19.02.2022, then a declaration issued u/s 19 on 01.03.2023 ( though published later) would not be valid in view of Section 19(7) which automatically preliminary notification u/Section 11. In the result the preliminary notification dated 19.02.2022 issued u/s 11 becomes invalid qua the appellants. As regards them the preliminary notification would have to be deemed to be rescinded. rescinds 37) Therefore, in the light of the fact that the declaration under Section 19 of the 2013 Act was issued beyond the period of 12 months from the date of issuance of Section 11 preliminary notification dt.19.2.2022, this Court has no choice but to allow the LPA and grant relief to the appellants. 38) For the aforesaid reasons, the LPA is allowed; and the order of learned Single Judge dismissing the Writ petition is set aside; and the said Writ petition is allowed only as regards the land and houses of the petitioners, if any, notified for acquisition by the respondents.

No costs.” 8 2(v). Following the same ratio, Vikram Singh3 was allowed by the Hon’ble Division Bench with the following order:-

14. Accordingly, this appeal is also disposed of in terms of order dt. 16.7.2024 in LPA no. 6 of 2024; the order of learned Single Judge dismissing the Writ Petition is set aside; and the said Writ Petition is allowed only with regard to lands and houses of the petitioners in the said Writ Petition, if any, notified for acquisition by the respondents. Pending applications, if any also stand disposed of.

2(vi). Significantly, while deciding Smt. Kamlesh and others2, Hon’ble Division Bench allowed the appeal and the writ petition only as regards the land and houses of the petitioners (therein), if any, notified for acquisition by the respondents or in other words, the notifications in question were not set aside as such, but were held invalid qua the petitioners therein.

The benefit of the decision was confined only to the writ petitioners (therein). In Vikram Singh3 also, Hon’ble Division Bench allowed the writ petition, but only with regard to the lands and houses of the petitioners in that writ petition and not qua other land owners. The notifications were not set aside as a whole. These were made inoperative qua the petitioners in both the writ petitions. It also needs to be noticed that in Vikram Singh3, CMP Nos.16104 & 16294 of 2024 were moved by some 9 persons/land owners seeking impleadment, contending that in view of the decision rendered in Smt. Kamlesh and others2, the respondents were delaying release of payment of compensation to them. They sought a clarification from the Court that Smt. Kamlesh and others2 will not be applied to the proposed parties, whose lands and houses were also the subject matter of the same land acquisition notification in view of specific directions issued in the said decision, whereunder, the writ petition was allowed only qua the land and houses of the writ petitioners in that case.

These applications were allowed by the Hon’ble Division Bench. The proposed parties were impleaded as respondents in Vikram Singh3. The applications were disposed of with the order that the decision in Smt. Kamlesh and others2 was very clear that it would apply only to the appellants in the said appeal/writ petitioners in Smt. Kamlesh and others2. That the said decision will not apply to the impleaded respondents. Being relevant, this portion of the order is extracted hereinafter:- “CMP Nos.16104 & 16294 of 2024 These applications are filed by the persons, seeking impleadment in LPA no. 38 of 2024, contending therein that the official respondents in this LPA are delaying the payment of compensation to them in view of the order passed by this Court in LPA no. 6 of 2024 dt. 16.7.2024; and they seek a clarification from this Court that the said judgment will not be applied to the 10 proposed parties, whose lands and houses are also the subject matter of the same land acquisition notification, in view of the specific directions in the said order that the said LPA no.6 of 2024 is allowed only as regards the land and houses of the appellants in that case.

The counsel for the non-applicant/appellant in LPA has no objection to the impleadment of the said parties, and also for clarifying the order in the manner sought by the proposed parties.

The proposed parties also contend that the relief which may be granted to the appellant in LPA no. 38 of 2024 may be on the same lines as the relief granted in LPA no. 6 of 2021, but notwithstanding the pendency of LPA no. 38 of 2024, the official respondents be directed for payment of compensation under the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (For short 2013 Act). the proceedings to delay Having regard to the said submission, these 4. applications for impleadment are ordered, and the proposed parties are impleaded as party respondents in LPA no.38 of 2024.

We have heard the counsel for the appellant in LPA, the impleaded respondents, and the learned Additional Advocate General. 6. held as under:- In LPA no.6 of 2024 in para-38, this Court has

For the aforesaid reasons, the LPA is allowed; and the order of learned Single Judge dismissing the Writ Petition is set aside; and the said Writ Petition is allowed only as regards the land and houses of the petitioners, if any, notified for acquisition by the respondents. No costs.

(emphasis supplied) In view of the said order, there is no ambiguity 7. about the order passed in LPA no. 6 of 2024. The said order dt. 16.7.2024 would apply only to the appellant in the said Appea/writ petitioner in CWP no.4300 of 2023. The clarification is therefore issued as above that it will not apply respondents. The applications thus stand disposed of.” impleaded 2(vii). Petitioners, 11 in number, have instituted this writ petition on 04.12.2024, seeking the same relief as 11 allowed to Smt.

3. Submissions:- 3(i). Learned Senior Counsel for the petitioners submits that the petitioners had also preferred objections against the notification dated 19.02.2022, as published on

02.03.2022. Another representation was preferred by the petitioners on 16.05.2023. The respondents had not decided these representations. In the given facts and circumstances, the petitioners are similarly placed both on facts and law as the petitioners in Smt. Kamlesh and others2 and Vikram Singh3. The reliefs granted to Smt. Kamlesh and others2 and Vikram Singh3 are liable to be granted to the present petitioners as well. Preliminary notification dated

19.02.2022 issued under Section 11 of the Act has to be held invalid qua the present petitioners as well. Reliance in support of these submissions was placed upon Chandra Kishore Jha v. Mahavir Prasad and others6 to urge the well settled principle that if a Statute provides for a thing to be done in a particular manner, then it has to be done in that manner and in no other manner. Relevant para of the judgment is as under:- “17. In our opinion insofar as an election petition concerned, proper presentation of an election petition in the Patna High Court can only be made in the manner prescribed by Rule 6 of Chapter XXI-E. No other mode of presentation of an election petition is envisaged under 6 (1999) 8 SCC 266 13 the Act or the Rules thereunder and, therefore, an election petition could, under no circumstances, be presented to the Registrar to save the period of limitation. It is a well-settled salutary principle that if a statute provides for a thing to be done in a particular manner, then it has to be done in that manner and in no other manner.

(See with advantage: Nazir Ahrnad v. King Emperor7, Rao Shiv Bahadur Singh & Anr. V. State of V.P.8, State of U.P. v. Singhara Singh9. An election petition under the Rules could only have been presented in the open Court upto 16-5-1995 till 4.15 P.M. (working hours of the Court) in the manner prescribed by Rule 6 (supra) either to the Judge or the Bench as the case may be to save the period of limitation. That, however, was not done. However, we cannot ignore that the situation in the present case was not of the making of the appellant. Neither the designated election Judge before whom the election petition could be formally presented in the open Court nor the Bench hearing civil applications and motions was admittedly available on 16-5-1995 after 3.15 P.M., after the Obituary Reference since admittedly the Chief Justice of the High Court had declared that “the Court shall not sit for the rest of the day” after 3.15 P.M. Law does not expect a party to do the impossible - impossiblium nulla obligation est - as in the instant case, the election petition could not be filed on 16-5-1995 during the Court hours, as for all intents and purposes, the Court was closed on 16-5-1995 after 3.15 p.m.” Vidya Devi Versus State of H.P.10 and Tukaram Kana Joshi and others Versus Maharashtra Industrial Development Corporation and others11 were also pressed into service to submit that delay & laches, if any, on part of the petitioners would not extinguish their right to put forth a lawful claim.