Madanlal Gayari and others v. State of M.P. and others

under Section 6 of the Act. They had amended the writ petition and challenged the award dated 31.7.2011 on the plea that they had come to know about the passing of the award from the reply of the respondents. 3/ A reply has been filed by the respondents no.1 to 5 stating that the notification under section 4(1) and declaration under section 6 have been issued in accordance with the provisions of the Act and the land is required for establishing 18 lane check post under the integrated border check-post scheme at Nayagaon. The action of the respondents is for facilitating the traffic and in the public interest. They have also raised the plea that the award has been passed and one person has already received the compensation and the petitioners have suppressed the fact that the possession has already been taken. 3 4/ The respondents no.6 and 7 have also filed their separate reply raising an objection that the writ petition has been filed after taking possession of the land and passing of the award, therefore, it is not maintainable.

They have further stated that the acquisition has been done in accordance with law for the purpose of integrated inter-state border check post, which would control mal practices and corruption at the border and bring about transparency and prevent transportation of goods without payment of taxes. For the project substantial amount has been sanctioned by the State. They have further taken the plea that respondents no.6 and 7 are the executing agencies of the project. 5/ In the rejoinder, the petitioners have disputed the fact of taking of possession and payment of compensation and have also raised some other additional issues, for which the additional reply has been filed by the respondents. 6/ I have heard the learned counsel for the parties and perused the record. The original record of the acquisition proceedings has also been produced for the perusal of this Court. 7/ The first objection raised by the counsel for the petitioners is that the section 4(1) notification is unsustainable since it does not disclose the Survey numbers of the land which is sought to be acquired.

In this connection he has placed reliance upon the judgment of the Supreme Court in the matter of Madhya Pradesh Housing Board Vs. Mohd. Shafi and others reported in 1992 JLJ 331 and in the matter of Om Prakash Sharma and others Vs. M.P. Audyogik Kendra 4 Vikas Nigam and others reported in 2005(10) SCC 306. 8/ In the present case the impugned notification under section 4(1) of the Act mentions the area of 8.445 hectare and also specifies village Nayagaon, Tehsil Jawad, District Nimuch, for which the notification is issued. The issue which has been raised by the petitioners is covered by the Division Bench judgment of this Court in the matter of Executive Engineer, M.P. Housing Board and others Vs. Shri Kant Mishra and others reported in 2009(1) MPHT 162, wherein this Court after taking note of the judgments of Supreme Court in the matter of Mohd. Shafi (supra) and Om Prakash Sharma (supra) has held as follows :- “12.

The ratio of Narendrajit Singh's case and Mohd' Shafi's case (supra) is that in notification under Section 4 of the Act locality with precision should be mentioned not identity of the land. Too many details of land are not to be given. In Om Prakash Sharma (supra), also, the decision of Mohd. Shafi's case (supra), has been relied upon which is based on Narendrajit Singh's case (supra). In Om Prakash Sharma's case (supra) in Para 5 notification of Mohd. Shafi's case has been quoted which was with respect to Mandsaur, the district place divided into various municipal wards, locality of Mandsaur was not mentioned. Thus, we are unable to agree with the submissions raised by respondents/owners of land that similar notification was quashed in Mohd. Shafi's case (supra). the Counsel

In Bai Malimabu etc Vs. State of Gujarat and others, AIR 1978 SC 515, the Apex Court has held that when the 5 land is mentioned that includes super- structure, it is not the requirement of law to mention the structure if any in the notification under Section 4. The Apex Court in Babu Singh and others Vs. Union of India and others, AIR 1979 SC 1713, laid down that the statement of public purpose under Section 4(1) notification is more comprehensive setting out details of improvement works, while the one set out under Section 6(1) notification is more precise and restricted in terms. Under Section 4, broad and understandable statement has to be made of public purpose.

Thus, the ratio of the decisions of the Apex Court consistently is that locality should be mentioned with precision not the precise identity of the locality at the state of notification under Section 4 of the Act. Similar is the view expressed by several High Courts. In Abdul Jabbar Vs. State of West Bengal, ILR (1967) 1 Calcutta 157, it was laid down that the notification under Section 4 is merely exploratory or preliminary in nature and the exact area to be acquired need not be particularised at that stage, but it is otherwise with the declaration under Section 6 which is issued after the Government has applied its mind to the exact area and location of the lands which are needed for the purpose of and are, therefore, acquired. Delhi High Court in Rajkumar and another Vs. Union of India and others, ILR (1974) II Delhi 81, has laid down that at the stage of notification under Section 4(1), it is not absolutely necessary that Government should have particularized the land. In Bahadur Singh Vs. Union of India, ILR (1976) I Delhi 375, it was laid down in Para 68, that it is not necessary that each and every items of the land should be mentioned in the notification under Section 4 which means 6 that survey numbers are not required to be mentioned. A Division Bench of Allahabad High Court in Chandan Singh Gosain Vs. State of U.P. and another, AIR 1980 Allahabad 106, following the decision of Narendrajit Singh's case (supra), held that plot numbers and other details are not necessary to be mentioned in the notification issued under Section 4 of the Act. Only the locality is to be mentioned which by very purpose of Section 4 can be mentioned. A Division Bench of Calcutta High Court in Jogendra Nath Chatterjee and others Vs. State of West Bengal, AIR 1971 Calcutta 458, held that neither the plots nor their boundary has to be specified in notification under Section 4(1) but, the In Nagar locality must be stated. Mahapalika, Varanasi Vs. Durga Shankar and others, AIR 1975 Allahabad 9, Allahabad High Court held that when the notification under Section 4(1) did not mention the details about the purpose of the plots or their boundaries, the notification could not be held to be vague as other sufficient particulars were mentioned.

In the light of the principles laid down in the aforesaid decision of the Apex Court and other decisions, coming to the notification issued under Section 4 in the instant case, it is apparent that name of the Village “Padara” has been mentioned, name of Tehsil Huzue, name of District Rewa has also been mentioned. Not only that 'mohalla', i.e., precise locality where the land is situated at Village Padara has also been mentioned as “suarantola'. Name of Village is Padara as apparent from Bhu Adhikar Evam Rin Pustika and Khasra Entry (P-2) filed by the petitioner, in W.P. No.14387/06 and from certificate of Tehsildar (A-4) placed on record, from 7 documents, it is clear that Suarantola is one of the locality of the Village Padara. It is obvious from name itself “Tola” means the smaller place as compared to the village, thus, mention of Suarantola in Village Padara is for precise locality. In the notification the particulars of the locality enjoined under Section 4(1) of the Act, has been mentioned with quite precision in the instant case.

6.3.1987 as Annexure R-6/12, by which the Dy. Collectors have been authorised by the State Government to perform the functions of Collector under the Land Acquisition Act. It has been pointed out that the officer, who had heard the objections in terms of Section 5A(2), was a duly authorised officer under section 2(c) of the Act. The original record also indicates that the procedure prescribed under Section 5A(2) of the Act has been followed. Thus no infirmity is found in this regard. 16/ The counsel for the petitioners has further submitted that since the respondent no.6 is a registered Company and the acquisition of the land is for respondent no.6, therefore, the provisions of Part VII of the Act are attracted and the acquisition 11 without invoking the provisions of Part VII relating to acquisition of land for companies can not be sustained. 17/ From the notification under section 4 or section 6 or from the award, it is not reflected that the land has been acquired for the respondent no.6-Company.

The section 4 notification indicates that the land has been acquired for the purpose of construction of integrated check post. The reply filed by the respondents also indicates that the acquisition of land is for the construction of integrated inter-state border check-post to facilitate the proper and correct revenue collections and to check the tax evasion at the border. The said check post will also integrate the different functions of various departments of the State and would avoid the traffic jams. The State Government has sanctioned substantial amount for the project and respondent no.6 is an authorised agency for project design and development and its execution. There is no material on record to contradict the aforesaid stand of the respondents and to hold that the acquisition of the land is for respondent No.6 Company. The reliance of the counsel for the petitioners on the Annexure R-6/8 and R-6/9 in this regard is of no consequence since they are only internal correspondence.

Even otherwise Annexure R-6/9 indicates that the respondent no.6 is only the executing agency responsible for construction of the border check-post. 18/ The petitioners have also raised an issue that the impugned award is an ante dated award. This plea has been raised to meet the objections of the respondents in respect of the maintainability of the writ petition after passing of the award. 12 The counsel for the petitioners has failed to substantiate this plea. The original record produced by the State indicates that the award has been passed on 31.7.2011. Under section 12(1) of the Act the award filed in the office of the Collector is final and conclusive evidence as between the Collector and the person interested. The Supreme Court in the matter of Sharadchandra Ganesh Muley Vs. State of Maharashtra and others reported in JT 1995(7) SC 317 has reiterated that once the land acquisition officer makes an Award under his signature and seal, then under Section 12(1) of the Act it is conclusive evidence of making of the award.

19/ Learned counsel for the petitioners has further raised the plea that the provisions contained in sub-section 2 of Section 12 in respect of notice to the interested person is mandatory, therefore, the award comes into operation when the notice under section 12(2) of the Act is served. Such a submission also can not be accepted since this issue is concluded by the judgment of the Supreme Court in the matter of Sharadchandra Ganesh Muley (supra), wherein it has been held that once the land acquisition officer has made the award under his signature and seal, that is the conclusive evidence under Section 12(1) of the Act and on mere fact that a party had received a copy of the award on a subsequent date, it can not be held that the award was made on that subsequent date. Even otherwise Section 12(2) of the Act can not be held to be mandatory in view of the test laid down by the Supreme Court in the matter of May George Vs.

Special Tehsildar and others reported in JT 2010(5) SC 526, wherein it has been held 13 that in order to declare a provision mandatory, the test to be applied is as to whether non compliance of the provision would render the entire proceedings invalid or not. The Division Bench of this Court in the matter of State of M.P. and others Vs. Sugandhi wd/o Dammulal and others reported in 1980 MPLJ 407 on the same reasoning has not held the provisions of Section 9(3) of the Act to be mandatory. The provisions of section 12(2) of the Act are relevant for the purpose of calculating the period of limitation for filing reference under section 18 of the Act as is clear from the judgment of the Supreme Court in the matter of State of Punjab Vs. Mst. Qaisar Jehan Begum and another reported in AIR 1963 SC

1604. In this regard the Full Bench judgment of the Delhi High Court in the matter of Roshanara Begum Vs. Union of India and others reported in AIR 1996 Delhi 206 is also relevant, wherein the Delhi High Court relying upon the judgment of the Supreme Court in the matter of Sharadchandra Ganesh Muley Vs. State of Maharashtra reported in 1995 AIR SCW 3713, has held that the signing of award on a particular date is a conclusive evidence of making of the award, so service of notice under Section 12 is not mandatory and even if no notice is served under Section 12, the award would remain valid and only limitation for seeking reference for enhancement of the compensation would commence when the aggrieved person comes to know about the making of the award. The Full Bench of the Delhi High Court referring to the judgment of the Supreme Court in the matter of Kaliyappan Vs. State of Kerala reported in AIR 1989 SC 239 has further held that the 14 date of signing of the award is the date of making of the award and that non issuance of notice soon after making of the award does not vitiate the award in any manner since it is only an offer of payment of compensation for the land sought to be acquired.

20/ In view of the aforesaid position in law, I do not find any substance in the argument of counsel for the petitioners that the award was ante dated or the relevant date for the purpose of making of the award is the date of service of notice under Section 12(2) of the Act. 21/ Counsel for the petitioners has also disputed the possession Panchnama (Ex.R-6/11) and submitted that by this Panchnama the possession was not taken from the petitioner. The question as to whether actual physical possession was taken in compliance of the provisions of section 17 of the Act or not, depend upon the facts and circumstances of each case and the delivery of possession in respect of immovable property is required to be in the manner laid down under Order 21 Rule 35 CPC. [See: 2009(8) SCC 339 National Thermal Power Corporation Ltd. Vs. Mahesh Dutta and others]. In the present case the possession Panchnama (Annexure R-6/11) indicates that at the time of preparing the Panchnama, the land was properly demarcated, the villagers had refused to accept the Cheque, the stones were affixed to demarcate the land, therefore, in substance the possession Panchnama (Annexure R-6/11) indicates that by the said Panchnama the actual physical possession was taken.

22/ The last issue is in respect of the maintainability of the writ petition. The respondents have raised an objection that 15 after passing of the award, writ petition is not maintainable. The award in the present case was passed on 31.7.2011, whereas the writ petition was filed on 9.8.2011. Though the writ petition was filed after passing of the award but in the petition the petitioners had not disclosed the fact of passing of the award. Once the award is passed ordinarily, the writ petition can not be filed challenging the acquisition notification or any proceedings thereunder. In the matter of Municipal Council Ahmednagar and another Vs. Shah Hyder Beig and others reported in 2000(2) SCC 48, the Supreme Court has reiterated the said position in law by observing as under :- “17. In any event; after the award is passed no writ petition can be filed challenging the acquisition notice or against any proceeding thereunder.

This has been the consistent view taken by this Court and in one of recent cases (C. Padma v. Dy Secretary to the Govt of T.N. 1997(2) SCC 627 this court observed as below : (SCC p.628, para 4) “4. The admitted position is that pursuant to the notification published under Section 4(1) of the Land Acquisition Act, 1894 (for short "the Act") in GOR No. 1392 Industries dated 17.10.1962, total extent of 6 areas 41 cents of land in Madhavaram Village, Saidapet Taluk, Chengalpattu District in Tamil Nadu was acquired under Chapter VII of the Act for the manufacture of Synthetic Rasiua by Tvl. Reichold Chemicals India Ltd., Madras. The acquisition proceedings had become final and possession of the land was taken on 10.4.1964. Pursuant to the agreement executed by the company, it was handed over to Tvl, Simpson and General Finance Co. which is a subsidiary of Reichold Chemicals India Ltd. It would appear 16 in GOMs No. that at a request made by the said company, 66 cents of land out of one acre 37 cents in respect of which the appellants originally had ownership, was transferred in GOMs No.

816 Industries dated 24.3.1971 in favour of another subsidiary company. Shri Rama Vilas Service Ltd., the 5th respondent Which is also another subsidiary of the company had requested for two acres 75 cents of land; the same came to be assigned on leasehold basis by the Government after resumption in terms of the agreement 439 Industries dated 10.5.1985. In GOMs No. 546 Industries dated 30.3.1986, the same came to be approved of. Then the appellants challenged the original GOMs No. 1392 Industries dated 17.10.1962 contending that since the original purpose for which the land was acquired had ceased to be in operation, the appellants are entitled to restitution of the possession taken from them. The learned Single Judge and the Division Bench have held that the acquired land having already vested in the State, after receipt of compensation by the predecessor-in-title of the appellants, they have no right to challenge the notification. Thus the writ petition and the writ appeal came to be dismissed. "

Similar is the view in an earlier decision of this Court in the case of Municipal Corporation of Greater Bombay v. Industrial Development Investment Co. Pvt. Ltd and Ors [1996(11) SCC 501]. Incidentally, the decision last noted was also on the land acquisition and requisition under the Maharashtra Regional and Town Planning Act, 1966 and in paragraph 29 of the report, this Court observed :- (SCC p. 520) “29. It is thus well settled law 17 factors that when there is inordinate delay in filing the writ petition and when all steps taken in the acquisition proceedings have become final, the Court should be loath to quash the notifications. The High Court has, no doubt, discretionary powers under Article 226 of the Constitution to quash the notification under Section 4(1) and declaration under Section 6. But it should be exercised taking all relevant into pragmatic consideration. When the award was passed and possession was taken, the Court should not have exercised its power to quash the award which is a material factor to be taken into consideration before exercising the power under Article 226. The fact that no third party rights were created in the case is hardly a ground for interference. The Division Bench of the High Court was not right in the discretion interfering with exercised by the learned Single Judge dismissing the writ petition on the grounds of laches. "

Mr. Venugopal, learned senior counsel appearing for one of the respondents placed strong reliance upon a recent decision of this Court in the case of Hindustan Petroleum Corporation Ltd. v. Dolly Das [1999(4) SCC 450]. This Court in paragraph 8 of the report observed as below : (SCC p. 455) "8. So far as the contention regarding laches of the respondent in filing the writ petition is concerned, delay, by itself, may not defeat the claim for relief unless the position of the appellant had been so altered which cannot be retracted on account of lapse of time or inaction of the other party. This aspect being dependent upon the examination of the facts of the case and such a contention not having been 18 raised before the High Court, it would not be appropriate to allow the appellants to raise such a contention for the first time before us. Besides, we may notice that the period for which the option of renewal has been exercised has not come to an end. During the subsistence of such a period certainly the respondent could make a complaint that such exercise of option was not available to the appellants and, therefore, the jurisdiction of the High Court could be invoked even at a later stage. Further, the appellants are not put to undue hardship in any manner by reason of this delay in approaching the High Court for a relief. " 23/ The writ jurisdiction exercisable by the High Court under Article 226 of the Constitution is discretionary and while exercising the said jurisdiction all the relevant factors are required to be taken into account and if the award has already been passed, it becomes a relevant consideration to decline interference in the challenge to the notification under section 4 and section 6 of the Act. 24/ The Supreme Court in the matter of A.P. Industrial Infrastructure Corporation Ltd. Vs. Chinthamaneni Narasimha Rao & Ors. reported in AIR 2011 SC (Civil) 2301 after taking note of the several judgments on the point has reiterated the settled legal position as under :- “11. This Court has held in several judgments that if the land owners are aggrieved by the acquisition proceedings, they must challenge the same at least before an award is made and the possession of the land in question is taken by the Government Authorities. It has been held in Swaika Propeties 19