LT. GOVERNOR OF HIMACHAL PRADESH versus AVINASH SHARMA

LT. GOVERNOR OF HIMAC.HAL PRAD~SH

AVINASH SHARMA

April 28, 1970

[J. C. SWAH AND K. S. HEGDE, JJ;]

Land Acquisition Act, 1894 Ss. 4, 6. 17(1) and (4) and 48-tand 1-f:'.~ting in Gover11111ent after notification under S. l 7t 1 )-// ccut rei·1..•rt to original Oll'ner by cllncellation of notification under s. 21 of the Crut'nt! c·lauses Act, 1891-0riginal possession of acquirt>d land taken ilh·ga/fy-lf land \'ests in Govt. free fro111.enc111nhrances IS days t1fter s. 17\ I l 1101ification.

Possession of an area of lan<l in Himachal Pradesh including some }Jn<l helonging to the respondent was taken in December I %3 by the Deputy (~·on1missioner· and the land was handed over to the Air Force.Authori-ties. Subsequently, on March 31, 1964, notification under s. 4 of the Land Acquisition Act, 1894. was published. Thereafter by composite notification under s. 6 and s. l 7 (l) & 14) date'd May 16, 1964, tbc ~tate Government declared that the land was needed for public purpose, that since it was required urgently, the enquiry under s. 5-A of the Act was dispensed with, and that posse5'1ion of the land woµld be taken under s. 17(1) of the Act after the expiry of 15 days of the notice under s. 9(1) of the Act. The Collector then served notices under s. 9 in June 1964. On October 5, 1965, the State Government published an order can-oe!ling the notifications dated March 31, 1964 and May 16, 1964, for acqui· 'ition of the land. The respondent flied writ petition and prayed that the notification dated October 5, 1965, be quashed· and that writ of nll111danius be issued directing the authorities to discharge their duties in lriw· to determine compensation for compulsory and urgent acquisition. The petition was allowed by the Judicial Commissioner. ·

ln appeal to this Court it was contended on behalf of the appellant that under s. 21 of the General Clauses Act, the State had the power to cancel the notifications at any time and that s. 48 of the Land Acquisiti•n Act did not trench upon that power; furtherltlore, where the Government had obtained JlO'Session illegally or under some unlawful transaction and notification under sec. 17 (I) was issued, the land did not vest in the Government [1]iree from all encumbrances; and that the notification issued by the State Gove1nment under Sec. 17 (I) and ( 4) was without authority because it did not recite that the land notified was "waste or arable".

HELD : Dismissing the appeal,

When possession of the land- is taken under s.17 (I) of the Land Acqui-sition Act 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. notific_atio~ under s. 17 ( 1). Although the government may cancel or rescmd notifications under section 4 and 6 -of the Land Acquisition Act notification under s. 17 ( 1) cannot be can-celled nor can it be withdrawn in exercise of the powers under Sec. 48 of the Land Acquisition Act. Any other view would enable the State Government to circumvent the specific provision by relying upon general power in the General clauses Act, [415 H, 417 C.E]

State of Madhya Pradesl1 and Ors. v. Vishnu Prasad Slwrma & Ors., [1966) 3 S.C.R. 557, referred to ..

CIVIL APPELLATE JuRrso1cr10N: Civil Appeal No. 514 of 1967. . ~

Appeal by special leave from the juogment and order datod September 27, 1966 of the Judicial Commis•ioner's Court at Simla and Civil Writ Petition No. 30 of 1965.

Jagadish Swarup, Solicitor-General, V. C. Mahajan and R. N. Sachthey. for the appellants.

Bishan Narain and 0. N. Mahindroo, for the respondent.

The Judgment of the Court wa,> delivered by

Shah, J, The Deputy Conmnssioner, Mahasu, apparently acting on the request of the Air Force authorities took possession on December 23, 1963, of an area of land in village Galu Chak. That area included 8-14-0 bighas belonging to the respondent. The reeord does not disclose the authority under which posses-sion of the land was taken and delivered over to the Air Force. There was correspondence between the Air Force Authorities and the State of Himachal Prndesh in regard to the land occu-pied by the Air Force and ultimately on March 31, 1964, notification under s. 4 of the Land Acquisition Act, 1894, was published notifying that the area of land (including the land of the respondent) was likely to be needed by the State Govern· ment for public purpOE·~. · By composite notification under s. 6 & s. 17 (1) & ( 4) dated May 16, 1964, lhe State of Hima· cha! Pradesh declared that the land was needed for · public purpose, that since it was required urgent, the enquiry under s. 5-A of the Act was dispensed with, and that possession of the land will be taken under ·s. 17 ( I) of the Act after the expiry cf fifteen days from the publication of the notice under s. 9 ( 1 ) of the Act. The Collector of Mahasu then served notices under s. 9 of the Land Acquisition Act in June 1964. On October 5. 1965, the Government of Himachul Pradesh published an order cancelling the notification dated March 31. 1964, and May I 6. 1964, for acquisition of land for public purpose.

The r.;:spond.~nt then presented petition before the Judicial Commissioner, Himachal Pradesh. for writ quashing the noti-tication dated October 5, 1965, withdrawing and cancelling the orevious notifications and for writ of mandamus directing the authorities of thl! State Government to act according to law and discharge the duties cast by law upon them in the· matter of d_e~ermination of_ ~ompensation for compulsory and urgent acqui-s1t1on. The petthcn was granted by the Judicial Commission.:r. In the view of the frdiciat Commissioner when the notification

under s. 17 ( 1) 8r. ( 4) was issued, and possession was taken by the State Government the land vested in the Government and it was not competent to the State Government thereafter to with-draw the notifications in exercise of .the power under s. 48 of the Land Acquisition Act. Against the order of the Judicial Commis-sioner. this appeal has been preferred with special leave.

The Solicitor-General appearing ()n behalf of the State contended that under s. 21 of the General Clauses Act the State has the p0wer to cancel the notifications at any time, and that s. 48 of the Land Acquisition Act did not trench upon that power. Under ihe Land Acquisition Act notification under s. 4 of the Act may be issued by the appropriate Government that any land is needed or is likely to be needed for public purpose. Unless the inquiry under s. 5-A is dispensed with. any person interested in the land notified may object to the acquisition of the land, or of any land in the locality. On the objections made, the Collector holds an inquiry after giving the objector an opportunity of being heard, and makes report. The appropriate Government may, if satisfied, after considering the report, if any, of the Collector under s. 5-A(2), make declaration that the land is needed for public purpose. The declaration is conclusive evidence that the land is needed for public purpose. Then follows an 'inquiry as to the amount of compensation payabl~ to the owner of the land, and to the other claimants. If the land is waste or arable, the Gover11ment may in case of urgency dispense with the inquiry under s. 5-A and direct that possession may be ta)cen on the expiration of · fifteen days after publication of the notice under s. 9 (1) of the Act e\'en though no award of compensation is made by the Collector. When possession is taken the land vests exclusively in the Government f1ee from all encumbrances ••

I~ the present case notification under s. 17 (1) and ( 4 J was issued by the State Government and possession which had· previously been taken must, from the date of expiry of fifteen days fro_m the publication of the notice under s. 9(1), be deem-ed to be the possession of the Government. We are unable to ~gree that where the Government has obtained possession 11legally or under some unlawful transaction and notification under s. 17 ( 1 ) is issued the land does not vest in the Govern-ment free f;om .all encumbrances. We are of the view that when notificat10n under s. 1 _7 (1) is issued, on the expiration of fifteen days from the pubhcatlon of the notice meniloned in s. 9( 1 ), th~ possession previously obtained will be.,deemed to be· the possess10n <?f the Government under s. 17 ( 1) of the Act al!Jil the land w11J vest in the Government free from all encum-branches.

It is true that the notification issued by the State of Himachai Pradesh under s. 17 ( l ) & ( 4) does not recite that the land noti-fied was "waste or arable". But it was not contended before the Judicial Commissioner that the Government issued the notifica-tion under s. 17 (I) & 14) without authority. Power under sub-ss. (l) & ( 4) of s. 17 may be only exercised when the land is waste or arable, and the Gov.~rnment having issued the notili-cation, it is not be open to them to contend for the fir>t time at this stage that the land of the respondent was not waste or .1rable and the notifications were unauthorised.

Section 48 of the Land Acquisition Act by the first s.ection provides :

sub-

" Except in the case provided for in section 36. the Government shall be at liberty to withdraw from the acquisition of any land of which posression has not been taken. " Power to cancel notification for compulsory acquisition is. it is true, not affected by s. 48 of the Act: by notification under s. 21 of the General Clauses Act, the Government may cancel ·Jr rescind the notifications issued under ss. 4 & 6 of the Land Acquisition Act. But the power under s. 21 of the General Clauses Act cannot be exercised after the land statutorily vesb in the State Government.

In State ·Of Madhya Pradesh and Ors. v. Vishnu Prasad Sharma & Ors(') on which reliance was placed, the only ques-tion which fell to be considered by the Court was whether notification under s. 4( I) may be followed by successive notifi-~ations under s. 6 for small parts of the land comprised- in one notification issued under s. 4. The· Court rejected th~ conten-tion that the Stat.~ was invested with such power. In consider· ing the argument the Court referred to the power to cancel the notification under s. 21 of the General Clauses Act, apart fr0fl1 1he pow~r conferred by s. 48 of the Land Acquisition Act. Th~ Court observed :

" Section 48 I 1 ) is special provision for those cases where proceedings for acquisition have gone be-yond the stage of the issue of notice under s. 9 ( I ) and it provides for payment 'of compensation under s. 48"(2) reac with s. 48(3 ). We cannot . accept the argument that withoi.;t an order under s. 48 (l) the notification under s. 4 must remain out-standing. It can be cancelled at any time by Govern-ment under s. 21 of the General Clauses Act and what

(I) 119661 JS.C. R. 557.

s. 48 (I). ~·If no notice has been issued under possession it cannot withdraw from· the acquisition. Before that it may cancel the notification under ss. 4 and 6 or it may withdraw from the acquisition under s. 48 (1). If no notice has been issued under s. 9 ( l) all that the government has to do is to pay for the damage caused as provided in s. 5; if on the other hand notice has been issued under s. 9 ( 1), damage has also to be paid in accordance with the provisions of s. 48(2) and ( 3) ." .

But these observations do not assist the case of the appellants.. It is clearly ill]plicit in the observati<111s that after possession has been taken pursuant to notification under s. 17 ( 1) the land is vested in the Government, and tlie notification cannot be cancelled under s. 21 of the General Clauses Act,'nor can the notifica\ion be withdrawn in exercise of the powers under s. 48. of the Land. Acquisition Act. Any other view would enable the State Govern-ment to circumvent the specific provision by relying upon gene-ral power. When possession of the land is taken under s. 17 ( 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.

The appeal fails and is dismissed with costs.

lfppeal dismissed.»

R.K.P.~.