State of Madhya Pradesh & Ors Vs.
Vishnu Prasad Sharma & Ors [1966] INSC 42 (9 February 1966)
09/02/1966 SARKAR, A.K.
SARKAR, A.K.
WANCHOO, K.N.
MUDHOLKAR, J.R.
CITATION: 1966 AIR 1593 1966 SCR (3) 557
CITATOR INFO:
RF 1968 SC1138 (28,44,45,46,51,52,54,57) R
1970 SC1576 (7) RF 1973 SC1150 (2) RF 1975 SC1699 (3) R 1975 SC1767 (4) E 1976
SC 417 (27) F 1977 SC 594 (5,6) E 1980 SC 367 (5,6,12) F 1985 SC1622 (15) D
1988 SC1615 (7) R 1989 SC 49 (26) RF 1991 SC1117 (9)
ACT:
Land Acquisition Act (1 of 1894), ss. 4, 5-A,
6, 17, 48 and 49-Notification under s. 4-If could be followed by more than one
notification under s. 6.,
HEADNOTE:
After the issue of a notification under a.
4(1) of the Land Acquisition Act, 1894, by which it was declared that lands in
certain villages were likely to be needed for a public purpose, a number of
notifications, in respect of different items of land specified in the
notification under s. 4(1), were successively issued under s. 6. The validity
of the last of them was challenged by the respondents, by a writ petition in
the High Court The High Court allowed the petition holding that a notification
under a. 4(1) could be followed only by one notification under. s. 6, and
therefore it was not open to the Government to issue successive notifications
with respect to different parts of land comprised in one notification under s.
4.
In appeal to this Court, by the State,
HELD: The High Court was right in holding
that there can be no successive notifications under s. 6 with respect to land
in a locality specified in one notification under a. 4(1). [572 C-D] Per
Sarkar, J. Sections 4, 5-A and 6 of the Act read together indicates that the
Act contemplates only a single declaration under s. 6 in respect of a
notification under s. 4. There is nothing in ss. 17 and 49(2) (3) to lead to a
contrary view.
There is nothing in the Act to support the
view that it is only a withdrawal under s. 48 that puts a notification under a.
4 completely out of the way. [560 G; 561 C; 561 E] Per Wanchoo and Mudholkar,
JJ. Sections 4, 5-A and 6 are integrally connected and without the
notifications under as.
4 and 6 no acquisition can take place,
because, they are the basis of all proceedings which follow. The notification
under s. 4(1) specifies the locality in which the land is to be acquired and
under s. 4(2) survey is made to decide what particular land in the locality
specified in the notification is to be acquired. Another purpose of the
notification under a. 4(1) is to give opportunity to persons owning land in the
locality to make objections under s. 5-A.
Section 5-A specifically provides that the
Collector shall hear all objections made before him and then make only one
report to the Government containing his recommendations on the objections. When
such a report is received by the Government, it must give a decision on all the
objections at one stage and decide once for all what particular land out of the
locality notified under s. 4(1) it wishes to acquire and then issue a
declaration under s. 6. At the stage of s. 4, the land is not particularised
but only the locality is mentioned; at the stage of a. 6 the land in the
locality is particularised and thereafter, the notification under s.
4(1) having served its purpose exhausts
itself. The sequence of events from a notification of the intention to acquire
under s. 4 to the declaration under a. 6, leads to the conclusion that once a
declaration under s. 6 particularising the area is issued, the remaining nonparticularised
area in the notification Sup.C.I./66-4 558 under s. 4(1) stands automatically
released. The intention of the legislature was that one notification under s.
4(1) should be followed by survey under s. 4(2), objections under s. 5-A heard,
and thereafter, one declaration under s. 6 issued. If the Government requires
more land in that locality, there is nothing to prevent it from issuing another
notification under s. 4(i) making a further survey if necessary, hearing
objections and then making another declaration under s. 6, whereas there is
likely to be prejudice to the owner of the land if there is great delay between
the notifications under s. 4(1) and s.
6. Even if it were possible to issue two
notifications under s. 6 in the special circumstances arising out of the
application of s. 17 (4), all that is possible is, to issue one notification
relating to land to which s. 17(1) applies and another notification relating to
land to which s. 17(1) cannot apply, and that is because of the special
provisions contained in s. 17(1) and s. 17(4) and not because of the provisions
of ss. 4, 5-A and 6. Section 48(1) only confers a special power on Government
of withdrawal from acquisition without canceling the notifications under ss. 4
and 6, provided, possession of the land covered by the notification under s. 6
was not taken. It cannot be said that the only way in which the notification
under s. 4(1) can corn.to an end is by withdrawal under s. 48(1) and that
unless action is taken under that section the notification under s. 4(1) would
remain alive Section 49(2) and (3) also provide for a special case. The order
of the Government under s. 49(2), ordering the acquisition of the whole of the
land, even though under s. 6 only part of the land may have been declared, may
be taken to serve the purpose of the notification under s. 4(1) in such a
special case; but it does not follow that successive notifications under s. 6
can be issued with respect to land in the locality specified in the
notification under s. 4(1). [566 D-567 E; 567 F, H; 569 B, C; 570 A-D, C; 571
F, G]
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 1018 of 1963.
Appeal from the judgment and order dated
February 21, 1962, of the Madhya Pradesh High Court in Misc. Petition No. 275
of 1961.
C. K. Daphtary, Attorney-General, M. Adhikari,
Advocate General, Madhya Pradesh, H. L. Khaskalam and I. N. Shroff, for the
appellants.
S. V. Gupte, Solicitor-General and J. B.
Dadachanji, for the respondents.
S. N. Kacker and J. P. Goyal, for the
intervener.
SARKAR, J. delivered a separate opinion. The
Judgment of WANCHOO and MUDHOLKAR, JJ. was delivered by WANCHOO, J.
Sarkar, J-My learned brother Wanchoo has set
out the facts fully in his judgment and that relieves me of the necessity of
stating them again.
The question that has arisen is whether a
number of declarations under S. 6 of the Land Acquisition Act, 1894 can be
issued successively in respect of different pieces of lands included within the
locality specified in a notification issued under S. 4 of the Act. My learned
brother has said that ss. 4, 5A and 6 of the Act have to be read together and
so read, the conclusion is clear that the Act contem559 plates only a single
declaration under s. 6 in respect of a notification under s. 4.1 so entirely
agree with his reasoning’s for this view that I find it unnecessary to add
anything to them. But it was said that there are other considerations which
indicate that our reading of these sections is unsound. In this judgment I
propose to deal only with these considerations.
It was said that the Government may have
difficulty in making the plan of its project complete at a time, particularly
where the project is large and, therefore, it is necessary that it should have
power to make a number of declarations under s. 6.1 am wholly unable to accept
this argument. First, I do not think that a supposed difficulty would provide
any justification for accepting an interpretation of a statute against the
ordinary meaning of the language used in it. General considerations of the kind
suggested cannot authorise a departure from the plain meaning of words.
Secondly,. I cannot imagine a Government, which has vast resources, not being
able to make a complete plan of its project at a time. Indeed, I think when a
plan is made, it is a complete plan. I should suppose that before the
Government starts acquisition proceedings by the issue of a notification under
s. 4, it has made its plan for otherwise it cannot state in the notification,
as it has to do, that the land is. likely to be needed. Even if it had not then
completed its plan, it would have enough time before the making of a
declaration under s. 6 to do so. I think, therefore, that the difficulty of the
Government, even if there is one, does not lead to the conclusion that the Act
contemplates the making of a number of 'declarations under s. 6.1 would like to
observe here to avoid confusion that we are not concerned now with extension of
a completely planned project conceived later. The present contention is not
based on any difficulty arising out of such a case. It was said that if the
Government has not finalised its plan when it makes a declaration under s. 6,
it would have to start fresh acquisition proceedings beginning with a
notification under s. 4 to provide for the complete plan if it could not make
any more declarations and in such a case, in conceivable circumstances, it may
have to pay more for the land that it then sought to acquire. This argument
concedes that even if the Government has not been able to make its plan when
making a declaration under s. 6, the result is not that it cannot acquire any
more land later when the plan is completed. The real point, therefore, of the
present argument is that the Act should be so interpreted that the Government
should not be put to extra cost when it has been unable to complete its plan at
a time. This seems to me to be a strange argument. First, there is no reason
why the Act should provide for the Government's failure to complete the plan.
Secondly, the argument is hypothetical for one does not know for sure whether a
later acquisition will cost more or lessr Arguments on hypothetical
considerations can have little weight in interpreting statutes. But even
otherwise this view of the matte.
560 does not support the argument. After the
issue of a notification under s. 4, an owner of land in the locality notified
cannot have full beneficial enjoyment of his property; he cannot, for example,
build on his land for if he does so-and the land is acquired, he will get no
compensation for the building put up and will lose the costs incurred for it.
If it is a justification for saying that a number of declarations can be made
under s. 6 because otherwise the Government may have to pay more, it seems to
me that it is at an equal justification for saying that such declarations
cannot have been contemplated by the Act because that would mean an avoidable
deprivation of the owners of their beneficial enjoyment of lands till such time
as the Government is able to make its plan. As the Act is an expropriator Act,
that interpretation of it should be accepted which puts the least burden on the
expropriated owner. The Government could, of course, always make a complete
plan at a time and I am unable to hold that the Act contemplated that it need
not do so and go on making declarations from time to time as its plan goes on
taking shape even though the result might be to increase the hardship of
persons whose lands are taken away.
Reference was then made to sub-ss. (1) and
(4) of s. 17.
These give the Government the power to, take
possession of waste and arable lands included in the notification under S.
4 on the expiry of fifteen days from the
publication of the notice mentioned in S. 9 and before the making of the award,
without holding the enquiry contemplated by S. 5. It was said that if a
notification under s. 4 included both arable and waste lands as also lands of
other descriptions, it will be necessary to issue two separate declarations
under s. 6 in respect of the different kinds of lands. It was also said that
the vesting in respect of the two kinds of lands in the Government would also
be by stages, All this, it was contended, would support the view that more than
one declaration under s. 6 was contemplated in such a case. I do not feel
called upon to ,express any opinion whether in such a case a number of
declarations under s. 6 is contemplated. It is enough to say that it is not
contended that this is a case of that kind. Therefore, it cannot be said that
the disputed declaration under S. 6 was in this case justified under s. 17. On
the contrary, if t the contention that S. 17 contemplates more declarations
than one under s. 6 be correct, that would be because the statute specifically
so provided for a particular case. It must follow that without a special
provision, more than one declaration under S. 6 was not contemplated.
The next contention was that s. 48 which
gives the Government power of withdrawal from acquisition before taking
possession implies that a notification under s. 4 remains in force for all
purpose till such withdrawal, and if it so remains in force, successive
declarations under s.
6 must be permissible for otherwise it would
be useless to keep the notification under s. 4 in force. The substance 561 of
this argument is that the only way to get rid of a notification under s. 4 is
by a withdrawal of the acquisition proceedings under s. 48; if the proceedings
are not withdrawn, the notification remains and then there may be successive
declarations. This argument seems to me clearly ill founded. Now a notification
under s. 4 will be exhausted if a declaration is made under it in respect of
the entire area covered by it. Likewise, it seems to me that if the correct
interpretation is that only one declaration can be made under s. 6, that also
would exhaust the notification under s. 4; that notification would no longer
remain in force to justify successive declaration under s. 6 in respect of
different areas included in it.
There is nothing in the Act to support the
view that it is only a withdrawal under s. 48 that puts a notification under s.
4 completely out of the way. The effect of s. 48 is to withdraw the acquisition
proceedings, including the notification under s. 4 with which it started. We
are concerned not with a withdrawal but with the force of a notification under
s. 4 having become exhausted. That is a different case and has nothing to do
with a withdrawal.
Lastly, we were referred to sub-ss., (2) and
(3) of s. 49.
These sub-sections state that where a claim
for compensation is made on the ground of severance of the land acquired from
the remaining land of the owner for which provision is made under s. 23, if the
Government thinks that the claim is unreasonable it may, before the making of
the award, order the acquisition of the whole land and in such a case no fresh
declaration under s. 6 will be necessary. It is contended that these provisions
support the view that successive declarations under s. 6 were contemplated. I
do not think they do so. In any case, I even if they did, then that would be
because in d particular case the statute specially provided for successive
declarations under s. 6.
The present is not that special case.
Furthermore, as I have said in connection with the argument based on s. 17, the
fact that a special provision was necessary to enable successive declarations
under s. 6 to be made would go to support the view that without a special
provision there is no power given by the Act to issue successive declarations
under s. 6.
1 would for these reasons dismiss the appeal
with costs.
Wanchoo, J.-The only question raised in this
appeal on a certificate granted by the Madhya Pradesh High Court is whether it
is open to the appropriate government to issue successive notifications under
s. 6 of the Land Acquisition Act, No. 1 of 1894, (hereinafter referred to as
the Act) with respect to land comprised within one notification under s. 4(1)
of the Act. The question arises in this way.
On May 16, 1949, a notification was issued
under s. 4 (1) of the Act by which it was declared that lands in eleven
villages including village Chhawani was likely to be needed for a public 562
purpose, i.e., the erection of an iron and steel plant. It appears that
thereafter notifications were issued under s. 6 with respect to the villages
notified in the notification under s. 4(1) and it is not in dispute that a
number of such notifications under S. 6 were issued with respect to village
Chhawani and some land in that village was acquired under those notifications,
the last' of such acquisitions being in the vear 1956. Thereafter on August 12,
1960, another notification under s. 6 of the Act was issued by the appropriate
government proposing to acquire 486-17 acres of land in village Chhawani and
the area which was proposed to be acquired was demarcated on a map kept in the
office of the Collector of Durg for inspection. The notification also stated
that the provisions of S. 5-A of the Act shall not apply thereto. Thereupon the
respondents who are interested in some of the land notified filed a writ petition
in the High Court challenging the validity of the notification under s. 6. The
principal contention raised on their behalf was that the notification under s.
6 of the Act was void as it had not been preceded by a fresh notification under
s. 1) and the notification under S. 4(1) issued in 1949 had exhausted itself
when notifications under s. 6 with respect to this village had been issued
previously and could not support the issue of another notification under s. 6.
In substance the contention of the respondents in their petition was that a
notification under s. 4(1) could be followed only by one notification under s.
6 and that there could be no successive notifications under s. 6 with respect
to lands comprised in one notification under s. 4(1).
The petition was opposed on behalf of the
appellant, and it was contended that it was open to the appropriate government
to issue as many notifications as it deemed fit under s. 6 of the Act with
respect to lands comprised in one notification under s. 4(1) and that it was
not correct that the notification under s. 4(1) was ,exhausted as soon as one
notification under s. 6 was issued with respect to a part of the land comprised
in the notification under s. 4(1), and that it was always open to the
appropriate government to issue successive notifications under s. 6 so long as
these notifications were with respect to land comprised within the notification
under s. 4(1).
The High Court has accepted the contention of
the respondents and has held that a notification under s. 4 (1) can only be
followed by one notification under S. 6 and that it is not open to the
appropriate government to issue successive notifications with respect to parts
of the land comprised in one notification under s. 4 and that as soon as one
notification is issued under s. 6, whether it be with respect to part of the
land comprised in the notification under s., 4(1) or with respect to the whole
of it, the notification under s. 4(1) is exhausted and cannot support any
further notification under s. 6 ,of the Act with respect to parts of land
comprised in the notifi563 cation under s. 6. In consequence the petition was
allowed and the notification dated August 12, 1960 quashed. The appellant then
applied to the High Court for a certificate which was granted; and that is how
the matter has come up before us.
The question whether only one notification
under s. 6 can be issued with respect to land comprised in the notification
under s. 4(1) and thereafter the notification under S. 4(1) exhausts itself and
cannot support any further notification under s. 6 with respect to such land
depends upon the construction of ss. 4, 5-A and 6 of the Act and on the
connection between these provisions. Before however we deal with these
provisions we may briefly refer to the scheme of the Act and the background in
which these provisions have to be interpreted.
The Act provides for the exercise of the
power of eminent domain and authorises the appropriate government to acquire
lands there under for public purpose or for purposes of a company. The
proceedings begin with a notification under S. 4 (1). After such a notification
it is permissible under s. 4(2) for any officer of government, his servants and
workmen to enter upon and survey the land in such locality, to dig or bore into
the subsoil, to do all other acts necessary to ascertain whether the land is
adapted for the purpose for which it was needed, to set out the boundaries of
the land proposed to be taken and the intended line of the work proposed to be
made thereon, to mark boundaries etc. by placing marks and fences and where
otherwise the survey cannot be completed to cut down and clear away any part of
any standing crop, fence or jungle. While the survey is being done under S. 4
(2), it is open to any person interested in the land notified under s. 4 (1) to
object under s. 5-A before the Collector within thirty days after the issue of
the notification to the acquisition of the land or of any land in the locality.
The Collector is authorised to hear the objections and is required after
hearing all such objections and after making such further enquiry as he thinks
necessary to submit the case for the decision of the appropriate government
together with the record of the proceedings held him and a report containing his
recommendations on the objections. There aft the appropriate government decides
the objections and such decision is final. If the appropriate government is
satisfied after considering the report that any particular land is needed for a
public purpose or for a company it has to make a declaration to that effect.
After such a declaration has been made under s, 6 the appropriate government
directs the Collector under S. 7 to take order for the acquisition of the land.
Sections 8 to 15 provide for the proceedings before the Collector. Section 16
authorises the Collector to take possession after he has made the award under
s. II and thereupon the land vests absolutely in the government free from all
encumbrances. Section 17 provides for special powers in cases of urgency. If a
564 person is not satisfied with the award of the Collector, ss.
18 to 28 provide for proceedings on a
reference to court.
Sections 31 to 34 provide for payment of
compensation.
Sections 38 to 44 make special provisions for
acquisition of land for companies. Section 48 gives power to government to
withdraw from the acquisition of any land of which possession has not been
taken. Section 49 provides for special powers with respect to acquisition of
house,' building or manufactory and of land severed from other land.
It will be seen from this brief review of the
provisions with respect to acquisition of land that ss. 4 and 6 are the basis
of all the proceedings which follow and without the notifications required
under ss. 4 and 6 no acquisition can take place. The importance of a
notification under s. 4 is that on the issue of such notification the land in
the locality to which the notification applies is in a sense freezed. This
freezing takes place in two ways. Firstly the market value of the land to be
acquired has to be determined on the date of the notification under s. 4(1) :
[see s.
23(1) firstly]. Secondly, any outlay or
improvements on or disposal of the land acquired commenced, made or effected
without the sanction of the Collector after the date of the publication of the
notification under s. 4(1) cannot be taken into consideration at all in
determining compensation : (see s. 24, seventhly).
It is in this background that we have to
consider the question raised before us. Two things are plain when we come to
consider the construction of ss. 4, 5A and 6. The first is that the Act
provides for acquisition of land of persons without their consent, though
compensation is paid for such acquisition; the fact however remains that land
is acquired without the consent of the owner thereof and that is a circumstance
which must be borne in mind when we come to consider the question raised before
us. In such a case the provisions of the statute must be strictly construed as
it deprives a person of his land without his consent.
Secondly, in interpreting these provisions
the court must keep in view on the one hand the public interest which compels
such acquisition and on the other the interest of the person who is being
deprived of his land without his consent. It is not in dispute that it is open
to the appropriate government to issue as many notifications as it deems fit
under s. 4(1) even with respect to the same locality followed by a proper
notification under s. 6 so that the power of the appropriate government to
acquire land in any locality is not exhausted by the issue of one notification
under s. 4(1) with respect to that locality.
On the other hand as the compensation has to
be determined with reference to the date of the notification under S. 4(1) the
person whose land is to be acquired may stand to lose if there is a great delay
between the notification under s.
4(1) and the notification under s. 6 in case
prices have risen in the meantime. This delay is likely to be greater if
successive notifications under s. 6 can be 565 issued with respect to land
comprised in the notification under s. 4 with greater consequential loss to the
person whose land is being acquired if prices have risen in the meantime. It is
however urged that prices may fall and in that case the person whose land is
being acquired will stand to gain. But as it is open to the appropriate government
to issue another notification under s. 4 with respect to the same locality
after one such notification is exhausted by the issue of a notification under
S. 6, it may proceed to do so where it feels that prices have fallen and more
land in that locality is needed and thus take advantage of the fall in prices
in the matter of acquisition. So it is clear that there is likely to be prejudice
to the owner of the land if the interpretation urged on behalf of the appellant
is accepted while there will be no prejudice to the government if it is
rejected for it can always issue a fresh notification under s. 4(1) after the
previous one is exhausted in case prices have fallen. It is in this background
that we have to consider the question raised before us.
As we have said already, the process of
acquisition always begins. with a notification under s. 4(1). That provision
authorises the appropriate government to notify that land in any locality is
needed' or is likely to be needed for any public purpose. It will be noticed
that in this notification the land needed is not particularised but only the
locality where the land is situate is mentioned. As was. observed by this Court
in Babu Barkya Thakur v. The State of Bombay,(1) a notification under S. 4 of
the Act envisages a preliminary investigation and it is only under s. 6 that
the government makes a firm declaration. The purpose of the notification under
S. 4(1) clearly is to enable the government to take action under S. 4(2) in the
matter of survey of land to decide what particular land in the locality
specified in the notification under s. 4(1) it will decide to acquire. Another
purpose of the notification under s. 4(1) is to give opportunity to persons
owning land in that locality to make objections under s. 5-A. These objections
are considered by the Collector and after considering all objections he makes a
report containing his recommendation on the objections to the appropriategovernment
whose decision on the objections is final.
Section 5-A obviously contemplates
consideration of all objections, made to the notification under s. 4(1) and one
report thereafter by the Collector to the government with respect to those
objections. The government then finally decides those objections and thereafter
proceeds to make a declaration under s. 6. There is nothing in s. 5-A to
suggest that the Collector can make a number of reports dealing with the objections
piecemeal. On the other hand S.
5-A specifically provides that the Collector
shall hear all objections made before him and then make a report i.e. only a
single report to the government containing his recommendation oil the
objections.
(1) [1961] 1 S.C.R. 128).
566 It seems to us clear that when such a
report is received from the Collector by the government it must give a decision
on all the objections at one stage and decide once for all what particular land
out of the locality notified under S.
4(1) it wishes to acquire, It has to be
satisfied under s. 6 after considering the report made under S. 5-A that a
particular land is needed for a public purpose or for a company and it then
makes a declaration to that effect under s. 6. Reading ss. 4, 5-A and 6
together it seems to us clear that the notification under S. 4(1) specifies
merely the locality in which the land is to be acquired and then under S. 4(2)
survey is made and it is considered whether the land or part of it is adapted
to the purpose for which it is required and maps are prepared of the land
proposed to be taken. Then after objections under s. 5-A have been disposed of
the government has to decide what particular land out of the locality specified
in the notification under S. 4(1) it will acquire. It then makes a declaration
under s. 6 specifying the particular land that is needed.
Sections 4, 5-A and 6 in our opinion are
integrally connected. 'Section 4 specifies the locality in, which the land is
acquired and provides for survey to decide what, particular land out of the
locality would be needed. Section 5-A provides for hearing of objections to the
acquisition and after these objections are decided the government has to make
up its mind and declare what particular land out of the locality it will
acquire. When it has so made up its mind it makes a declaration as to the
particular land out of the locality notified in S. 4(1) which it will acquire.
It is clear from this intimate connection between ss. 4, 5-A and 6 that as soon
as the ,government has made up its mind what particular land out of the
locality it requires, it has to issue a declaration under S. 6 to that effect.
The purpose of the notification under S. 4(1) is at this stage over and it may
be said that it is exhausted after the notification under S. 6. If the
government requires more land in that locality besides that notified-under S.
6, there is nothing to prevent it from issuing another notification under S. 4(1)
making a further survey if necessary, heating objections and then making
another declaration under S. 6.
The notification under S. 4(1) thus informs
the public that land is required Or would be required in a particular locality
and thereafter the Members of the public owning land in that locality have to
make objections under S. 5-A;
the government then makes up its mind as to
what particular land in that locality is required and makes a declaration under
s. 6. It seems to us clear that once a declaration under s. 6 is made, the
notification under S. 4(1) must be, exhausted, for it has served its purpose.
There is nothing in ss. 4, 5-A and 6 to suggest that S. 4 ,(1) is a kind of
reservoir from which the government may from time to time draw out land and
make declarations with respect to it :successively. If that was the intention
behind sections 4, 5-A and 567 6 we would have found some indication of it in
the language used therein. But as we read these three sections together we can
only find that the scheme is that s. 4 specifies the locality, then there may
be survey and drawing of maps of the land and the consideration whether the
land is adapted for the purpose for which it has to be acquired, followed by
objections and making up of its mind by the government what particular land out
of that locality it needs. This is followed by a declaration 'Under s. 6
specifying the particular land needed and that in our opinion completes the
process and the notification under s. 4(1) cannot be further used thereafter.
At the stage of s. 4 the land is not particularised but only the locality is
mentioned; at the stage of s. 6 the land in the locality is particularised and
thereafter it seems to us that the notification under s. 4(1) having served its
purpose exhausts itself. The sequence of events from a notification of the
intention to acquire (s. 4(1) to the declaration under s. 6 unmistakably leads
one to the reasonable conclusion that when once a declaration under S. 6
particularising the area out of the area in the locality specified in the
notification under s. 4(1) is issued, the remaining nonparticularised area
stands automatically released. In effect the scheme of these three sections is
that there should be first a notification under S. 4(1) followed by one
notification under S. 6 after the government has made up its mind which land
out of the locality it requires.
It is urged however that where the land is
required for a small project and the area is not large the government may be
able to make up its mind once for all what land it needs, but where as in the
present case land is required for a large project requiring a large area of
land government may not be able to make up its mind all at once. Even if it be
so there is nothing to prevent the government from issuing another nonfiction
under s. 4 followed by a notification under S. 6. As we have said before, the
government's power to acquire land in a particular locality is not exhausted by
issuing one notification under s. 4(1) followed by a notification under S. 6.
The interpretation which has commended itself to us therefore does not deprive
the government of the power to acquire more land from the same locality if
later on it thinks that more land than what has been declared under s. 6 is
needed. It can proceed to do so by a fresh notification under s. 4(1) and a
fresh declaration under s. 6. Such a procedure would in our opinion be fair to
all concerned; it will be fair to government where the prices have fallen and
it will be fair to those whose land is being acquired where the prices have
risen. Therefore as we read these three sections we are of opinion that they
are integrally and intimately connected and the intention of legislature was
that one, notification under S. 4(1) should be followed by survey under S. 4
(2) and objections under s. 5-A and thereafter one declaration 568 under S. 6.
There is nothing in ss. 4, 5-A and 6 which supports the construction urged on
behalf of the appellant and in any case it seems to us that the construction
which commends itself to us and which has been accepted by the High Court is a
fair construction keeping in view the background to which we have referred.
Even if two constructions were possible, which we think is not so, we would be
inclined to the construction which has commended itself to us because that
construction does not restrict the power of the government to acquire land at
any time it deems fit to do and at the same time works fairly towards persons
whose land is to be acquired compulsorily.
It now remains to consider certain other
provisions of the Act to which reference has been made on behalf of the
appellant to show that successive notifications under s. 6 are contemplated
with respect to land in a locality specified in the notification under s. 4(1).
The first provision is contained in s. 17(4). Section 17(1) gives power to
government in cases of urgency to direct that the Collector should take
possession of-the land before the award is made and such possession can be
taken on expiration of fifteen days from the publication of the notice under s.
9(1). Further such possession can only be
taken of waste or arable land and on such possession being taken such land
vests absolutely in the government free from all encumbrances. To carry out the
purposes of S. 17(1), S.
17(4) provides that the appropriate government
may direct that the provisions of S. 5-A shall not apply in cases of urgency
and if it so directs, a declaration under S. 6 may be made in respect of the
land at any time after the publication of the notification under s. 4(1). It is
urged that this shows that where the land notified under S. 4(1) includes land
of the kind mentioned in S. 17 (1) and also land which is not of that kind it
would be open to government to make a declaration under S. 6 with respect to
the land mentioned in S. 17(1) immediately after the notification under s. 4(1)
while notification with respect to the land which is not of the kind mentioned
in s. 17(1) can follow later after the enquiry under s. 5-A is over and
objections have been disposed of. So it is urged that more than one declaration
is contemplated under s. 6 after one notification under s. 4(1). There are two
answers to this argument. In the first place where the land to be acquired is
of the kind mentioned in s. 17(1) and also of the kind not included in S. 17(1)
there is nothing to prevent the government from issuing two notifications under
s. 4(1) one relating to land which comes within s. 17(1) and the other relating
to land which cannot come within S. 17(1). Thereafter the government may issue
a notification under s. 6 following the. notification under s. 4(1) with
respect to the land to which s. 17(1) applies while another notification under
S. 6 with respect to land to which s. 17(1) does not apply can follow after the
enquiry under S. 5-A. So section 17(4) does not necessarily mean that 569 there
can be two notifications under s. 6 where the provisions of that section are to
be utilised, for, the government can from the beginning issue two notifications
under s. 4 and follow them up by two declarations under s. 6. But even assuming
that it is possible to make two declarations under s. 6 (though in view of what
we have said above this is not necessary and we express no final opinion about
it) where the land to be acquired is both of the kind mentioned in s. 17(1) and
also of the kind not comprised therein, all that the government can do in those
circumstances after one notification under s. 4 (1) comprising both lands is to
issue one notification under s. 6 comprising lands coming within s. 17(1) and
another notification under s. 6 with respect to land not coming within s. 17(1)
sometime later after the enquiry under s. 5A is finished. This however follows
from the special provisions contained in s. 17(1) and (4) and in a sense
negatives the contention of the appellant based only, on ss. 4, 5-A and 6. It
may be added that that is not the position in the present case. Therefore even
if it were possible to issue two notifications under s. 6 in the special
circumstances arising out of the application of s. 17(4), all that is possible
is to issue one notification relating to land to which S. 17(1) applies and
another. notification relating to land to which s. 17(1) cannot apply. Further
if both these kinds of land are included in the notification under S. 4(1), the
issue of two notifications under s. 6 follows from the special provisions
contained in s. 17(1) and S. 17(4) and not from the provisions of ss. 4, 5-A
and
6. The present is not a case of this kind,
for the notification under S. 4(1) in this case issued in May 1949 did not
contain any direction relevant to S. 17(4). It is true that the declaration
under S. 6 dated August 12, 1960 contains a direction under s. 17(4), but the
effect of that merely is to allow the government to take possession of the land
within 15 days after the issue of notice under S. 9(1).
This is on the assumption that a direction
under s. 17(4) can be issued along with the notification under S. 6 as to which
we express no opinion. We are therefore of opinion that the provisions in S.
17(4) do not lead to the conclusion that section 6 contemplates successive
notifications following one notification under s. 4(1). As we interpret ss. 4,
5-A and 6 that is not the intention in a normal case. Even in a case of urgency
there can at the most be only two notifications under s. 6 following one
notification under s. 4(1), one relating to land which is covered by s. 17(1)
and the other relating to land which is not covered by S. 17(1), provided both
kinds of land are notified by one notification under s. 4(1). As we have said
even that is not necessary for we are of opinion that in such a case the
government can issue two notifications under s. 4(1), one relating to land to
which S. 17(1) applies and the other relating to land to which s. 17(1) does
not apply and thereafter there will be two notifications under s. 6 each
following its own predecessor under s. 4(1).
570 Then reliance is placed on S. 48 which
provides for withdrawal from acquisition. The argument is that S. 48 is the
only provision in the Act which deals with withdrawal from acquisition and that
is the only way in which government can withdraw from the acquisition and
unless action is taken under S. 48(1) the notification under S.
4(1) would remain (presumably for ever). It
is urged that the only way in which the notification under S. 4(1) can come to
an end is by withdrawal under S. 48(1). We are not impressed by this argument.
In the first place, under S. 21 of the General Clauses Act, (No. 10 of 1897),
the power to issue a notification includes the power to rescind it.
Therefore it is always open to government to
rescind a notification under s. 4 or under s. 6, and withdrawal under S. 48(1)
is not the only way in which a notification under s. 4 or S. 6 can be brought
to an end. Section 48(1) confers a special power on government of withdrawal
from acquisition without canceling the notifications under ss. 4 and 6,
provided it has not taken possession of the land covered by the notification
under S. 6. In such circumstances the government has to give compensation under
S. 48(2). This compensation is for the damage suffered by the owner in
consequence of the notice under S. 9 or of any proceedings thereafter and
includes costs reasonably incurred by him in the prosecution of the proceedings
under the Act relating to the said land. The notice mentioned in sub-s. (2)
obviously refers to the notice under S. 9(1) to persons interested. It seems
that S. 48 refers to the stage after the Collector has been asked to take order
for acquisition under S. 7 and has issued notice under S. 9(1).
It does not refer to the stage prior to the
issue of the declaration under s. 6. Section 5 says that the officer taking
action under s. 4(2) shall pay or tender payment for all necessary damage done
by his acting under s. 4(2).
Therefore the damage if any, caused after the
notification under S. 4(1) is provided in section 5. Section 48(2) provides for
compensation after notice has been issued under S. 9(1) and the Collector has
taken proceedings for acquisition of the land by virtue of the direction under
s. 7. Section 48(1) thus gives power to government to withdraw from the
acquisition without canceling the notifications under ss. 4 and 6 after notice
under s. 9(1) has been issued and before possession is taken. This power can be
exercised even after the Collector has made the award under S. 11 but before he
takes possession under s. 15 Section 48(2) provides for compensation in such a
case. The argument that S. 48(1) is the only method in which the government can
withdraw from the acquisition has therefore no force because the government can
always cancel the notifications under ss. 4 and 6 by virtue of its power under
S. 21 of the General Clauses Act and this power can be exercised before the
government directs the Collector to take action under S. 7.
Section 48(1) is a special provision for
those cases where proceedings for acquisition have' gone beyond the stage of
the issue of notice under S. 9(1) and 571 it provides for payment of
compensation under. s. 48(2) read with S. 48(3). We cannot therefore accept the
argument that without an order under S.48(1) the notification under S. 4 must
remain outstanding. It can be cancelled at any time by government under s. 21
of the General Clauses Act and what s. 48(1) shows is that once government has
taken possession it cannot withdraw from the acquisition. Before that it may
cancel the notifications 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(1) all that
the government has to do is to pay for the damage caused as provided in s. 5;
if on the other hand a 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). Section 48(1)
therefore is of no assistance to the appellant for showing that successive
declarations under S. 6 can be made with respect to land in the locality
specified in the notification under s. 4(1).
Then reference is made to s. 49(2) and (3).
These subsections lay down a special provision applicable in certain
circumstances. Among the factors to be taken into consideration in fixing the
compensation is the damage if any sustained by the person interested at the
time of the Collector's taking possession of the land by reason of severing
such land from his other land. Section 49(2) provides. that if a person is
claiming an unreasonable and excessive compensation for this kind of damage,
the government can order the acquisition of the whole of the land even though
under s. 6 only part of the land may have been declared. Sub-section (3)
provides that in such a case no action under S. 6 to S. 10 would be necessary
and that all that the Collector is to do is to give an award under s. 11. The
argument is that S. 49(3) does not mention S. 4 and therefore it follows that
successive notifications under S. 6 can be issued with respect to land in the
locality specified in the notification under s. 4(1). We have not been able to
understand how this follows from the fact that S. 4(1) is not mentioned in S.
49(3).. As we have said already s. 49(2) and (3) provide for a very special
case and the order of government under s. 49(2) may in a sense be taken to
serve the purpose of S. 4(1) in such a special case. Thereafter all that s. 49(3)
provides is that the Collector may proceed straight off to determine
compensation under s. 11, the reason for this being that all the other steps
necessary for determining compensation under s. 11 have already been taken in
the presence of the parties.
Lastly it is urged that vesting is also
contemplated in two, stages and that shows that successive notifications can be
issued under s. 6 following one notification under s. 4(1).
Section 16 provides for taking possession and
vesting after the award hap, been made. Section 17 provides for taking
possession and consequent vesting before the award is made in case of urgency.
We 572 fail to see how these provisions as to vesting can make any difference
to the interpretation of ss. 4, 5-A and 6.
Section 16 deals with a normal case where
possession is taken after the award is made while s. 17(1) deals with a special
case where possession is taken fifteen days after the notice tinder s. 9(1).
Vesting always follows taking of possession and there can be vestin either
under s. 16 or under s. 17(1) depending upon whether the case is a normal one
or an urgent one. What we have said with respect to s. 17(1) .and S. 17(4)
would apply in this matter of vesting also and if the matter is of urgency the
government can always issue two notifications under s. 4, one relating to land
urgently required and covered by S. 17(1) and the other relating to land not
covered by S. 17(1). The argument based on these provisions in s. 16 and s. 17
can have no effect on the interpretation of ss. 4, 5-A and 6 for reasons which
we have given when dealing with ss. 17(1) and 17(4).
We are therefore of opinion that the High
Court was right in holding :that there can be no successive notifications under
S. 6 with respect to land in a locality specified in one notification under S.
4(1). As it is not in dispute in this case that there have been a number of
notifications under s. 6 with respect to this village based on the notification
under S. 4(1) dated May 16, 1949, the High Court was right in quashing the
notification under s. 6 issued on August 12, 1960 based on the same notification under S. 4(1).
The petition had also raised a ground that
the notification .under S. 6 was vague. However, in view of our decision on the
main point raised in the case we express no opinion on this aspect .of the
matter.
The appeal therefore fails and is hereby
dismissed with costs Appeal dismissed.
Back
