Present: Mr.Girish Agnihotri Sr.Advocate with Vs. State of Haryana and Others - Court Judgment

SooperKanoon Citationsooperkanoon.com/1056402
CourtPunjab and Haryana High Court
Decided OnJan-28-2013
AppellantPresent: Mr.Girish Agnihotri Sr.Advocate with
RespondentState of Haryana and Others
Excerpt:
cwp no.19042 o”1. in the high court of punjab & haryana at chandigarh cwp no.19042 of 2011 date of decision:28.01.2013 the friends co-operative house building society (registered) .....petitioner versus state of haryana & others ......respondents coram: hon'ble mr.justice ajay kumar mittal hon'ble mr.justice g.s.sandhawalia present: mr.girish agnihotri, sr.advocate, with mr.vijay pal & mr.arvind seth, advocates, for the petitioner, ms.palika monga, dag, haryana, for respondents no.1, 2 & 4, mr.rishi tondon, advocate, for respondent no.3. **** 1. whether reporters of local papers may be allowed to see the judgment?. yes 2. whether to be referred to the reporters or not?. yes 3. whether the judgment should be reported in the digest?. yes **** g.s.sandhawalia j.1. the question that arises for consideration of this court, in the present petition is that while granting an order of status quo with respect to possession which was not extended at the time of admission would give petitioner the benefit of section 11-a of the land acquisition act, 1894 (for brevity, the 'act') and the proceedings would lapse.2. the facts which are necessary for determination of the above-said question as pleaded in the writ petition, filed under articles 226/227 of the constitution of india, are that the petitioner-society purchased the land vide various sale deeds in the year 1982-83 for development of residential houses being a registered co-operative house building society. respondent no.2 issued a notification under section 4 of the act on 05.04.1990 for the public purpose for development and utilization of land as residential, commercial and industrial area under the haryana urban development act, 1977 (for brevity, the 'huda act') cwp no.19042 o”2. for the land situated in village jagadhri, district yamuna nagar. the petitioner- society filed objections under section 5-a of the act and thereafter, notification under section 6 of the act was issued on 04.04.1991.3. the petitioner approached this court by filing cwp no.15755 of 1991. notice of motion was issued in the said case on 11.10.1991 and “status quo with respect to possession”. was ordered by a division bench of this court. the writ petition was admitted on 14.05.1992. however, there was no specific order passed regarding continuance of the order of status quo. eventually, the writ petition was dismissed on 04.04.2011 by up-holding the procedure adopted and repelling the challenge to the acquisition of the land in question. the possession was taken on 21.07.2011. it is the case of the petitioner that the respondents illegally took the possession of the land without pronouncing any award or without giving any compensation. accordingly, civil writ petition was filed with the plea that no award had been passed as required under section 11-a of the act, within a period of 2 years from the date of publication of the declaration under section 6 of the act and thus the entire acquisition proceedings had lapsed. it was pleaded that since there was no interim order after 11.10.1991 when the case was at motion stage and therefore, the period started running from 14.05.1992 when the writ was admitted and the period of 2 years expired on 14.05.1994 and thus, the acquisition proceedings had lapsed.4. in the un-amended written statement filed on behalf of respondents no.1 & 2, it has been pleaded that the award in respect to the land was announced on 15.03.1993 and possession was taken over and handed over to the beneficiary department, i.e., huda under section 16 of the act, except the land for which the orders of status quo and stay of dispossession had been passed. but the award in respect to the land in dispute could not be announced due to the court order dated 11.10.1991. after the dismissal of the writ petition on 04.04.2011, cwp no.19042 o”3. possession of the disputed land was taken and handed-over to the beneficiary department and the award could be made on or before 19.05.2012. it has been further averred that slp no.20405 of 2011 against the order dated 04.04.2011, passed by this court, had been dismissed on 05.08.2011. the high court had never vacated the status quo order and it remained operative till the dismissal of the writ petition. it was further pleaded that the collector could announce the award within a period of 2 years from the date of publication and if no award is made within the period, the entire proceedings would lapse.5. subsequently, amended written statement was filed wherein it was averred that inadvertently, the possession of the land involved in cwp no.15755 of 1991 was also written in the rapat roznamcha by mistake along with the land involved in cwp nos.9472 & 6626 of 1995 which were jointly decided on 04.04.2011. the same had been rectified by rejecting the previous possession dated 21.07.2011 and the award with respect to the land measuring 14.08 acres involved in cwp no.15755 of 1991 had been made and possession was also handed over to the beneficiary department, i.e., huda under section 16 of the act on the day of the award, i.e., 02.01.2012. the land, therefore, fully vested with huda, free from all encumbrances.6. written statement was also filed on behalf of huda in which it was mentioned that the award dated 02.01.2012 was passed within the stipulated time as envisaged under the act since the status quo order was operative during the period of litigation and got vacated only on the dismissal of the writ petition. the period from 11.10.1991 till 04.04.2011 was liable to be excluded from the period within which the award was required to be passed and accordingly, the award was well within the stipulated period, after excluding the period of stay. the land around the area had already been developed and the land involved in cwp no.15755 of 1991 was lying vacant due to the pendency of the writ petition. the cwp no.19042 o”4. said writ petition had been filed with a ulterior motive. the petitioner had also filed civil suit before the civil judge, junior division, yamuna nagar and they were abusing the process of law.7. in the replication filed by the petitioner, it was pleaded that the possession of the land was taken without passing of the award. it was pleaded that no order was passed and possession was handed over to the beneficiary department without announcing the award and therefore, the acquisition proceedings had lapsed.8. learned senior counsel for the petitioner has submitted that once the stay had not been extended on 14.05.1992 at the time of admission of the writ petition, the proceedings for acquisition had lapsed. reliance was placed upon the judgment in ashok kumar & others vs. state of haryana & another 2007 (3) scc 47.to contend that the hon'ble apex court specifically held that it was wrong for the high court to hold that once an order of stay had been passed, even if for a limited period, the same would continue to operate until it is vacated by an express order or otherwise.9. counsel for the state, on the other hand, submitted that since there was status quo regarding possession, it would deem to continue till the dismissal of the writ petition, i.e., 04.04.2011. the award was passed on 02.01.2012 and after excluding the period from 11.10.1991 to 04.04.2011, it was within the prescribed period of 2 years as per section 11-a of the act.10. section 11a of the act reads as under: “11a. period shall be which an award within made. - the collector shall make an award under section 11 within a period of two years from the date of the publication of the declaration and if no award is made within that period, the entire proceeding for the acquisition of the land shall lapse. provided that in a case where the said declaration has been published before the commencement of the land acquisition (amendment) act, 1984 (68 of 1984), the award shall be made cwp no.19042 o”5. within a period of two years from such commencement. explanation – in computing the period of two years referred to in this section, the period during which any action or proceeding to be taken in pursuance of the said declaration is stayed by an order of a court shall be excluded.”11. a perusal of the same would show that the award is to be made within a period of 2 years from the date of publication of the declaration and the entire proceedings would lapse in case the award is not made within that period. according to the explanation appended to the section, the period during which any action or proceedings taken in pursuance of the said declaration is stayed by an order of the court, the said period for purposes of computing the 2 years shall be excluded. the purpose for enacting the section is very clear. it ensures that the award is passed within the prescribed period so that the land-owners are not deprived of the amount of compensation by the authorities for indefinite period. the provision is mandatory and failure to pronounce the award would invalidate the whole proceedings. the authorities have, however, been given the protection that where the proceedings of the land acquisition are challenged and there is stay by an order of a court, the said period shall be excluded.12. in the present case, the petitioners had challenged the notification under sections 4 & 6 of the act by filing cwp no.15775 of 1991 and were beneficiary of the status quo order. they not cannot turn around and say that the award which has been announced on 02.01.2012 is after the period of 2 years and therefore, the proceedings had lapsed. once status quo with regard to possession had been ordered in 1991, the authorities were justified in not announcing the award regarding the land in dispute and could not take any further proceeding in pursuance of the said declaration.13. in the amended written statement filed by respondents no.1 & 2, it has been clarified that the award with respect to the land had been made and announced on 15.03.1993, except the land for which the order of status quo and cwp no.19042 o”6. stay dispossession had been passed. the order of status quo regarding possession was not till the next date and thus, can be of no help to the petitioner. the judgment relied upon by the learned senior counsel for the petitioner in ashok kumar (supra) pertains to a case where, in a civil suit, injunction was obtained and at the initial stage, the words used were “in the meantime”. and the defendants were refrained from demolishing the construction. the stay order then was extended by specific order by using the words “till then”. and eventually, the suit was dismissed in default. accordingly, the hon'ble apex court came to the conclusion that in view of the fact that the words “in the meantime”. and “till then”. had been used, it could not be held that the stay would carry on. the petitioners cannot derive any benefit from the said judgment. herein, while granting status quo regarding possession on 11.10.1991, this court had never ordered that the stay would be operative till a particular date. thus, under the circumstances, the stay order continued till the final disposal of the writ petition, i.e., 04.04.2011.14. it was next urged by the learned counsel for the petitioner that there was only an order of status quo regarding possession and there was no stay on the pronouncement of the award by the court and therefore, the operation of stay of dispossession could not be used for the purpose of excluding it under the explanation of section 11-a of the act. the said issue is no longer res integra. a three judge bench of the hon'ble apex court, while examining the provisions of the act in the case of yusufbhai noormmohmed nendoliya vs. state of gujarat & another 1991 (4) scc 53.held that section 11-a is very widely worded and covers in its sweep the entire period during which any action or proceeding are to be taken in pursuance of the declaration under section 6 of the act. this view of the gujarat high court was up-held that where the respondents had been restrained from taking possession of the land, it would amount to any cwp no.19042 o”7. action or proceeding in pursuance of the said declaration which had been stayed and the contrary view of the kerala high court did not find favour. the relevant paragraph reads as under:“8. the said explanation is in the widest possible terms and, in our opinion, there is no warrant for limiting the action or proceedings referred to in the explanation to actions or proceedings preceding the making of the award under section 11 of the said act. in the first place, as held by the learned single judge himself where the case is covered by section 17, the possession can be taken before an award is made and we see no reason why the aforesaid expression in the explanation should be given a different meaning depending upon whether the case is covered by section 17 or otherwise. on the other hand, it appears to us that the explanation is intended to confer a benefit on a land-holder whose land is acquired after the declaration under section 6, is made in cases covered by the explanation. the benefit is that the award must be made within a period of two years of the declaration, failing which the acquisition proceedings would lapse and the land would revert to the land-holder. in order to get the benefit of the said provision what is required, is that the land-holder who seeks the benefit must not have obtained any order from a court restraining any action or proceeding in pursuance of the declaration under section 6 of the said act so that the explanation covers only the cases of those land-holders who do not obtain any order from a court which would delay or prevent the making of the award or taking possession of the land acquired. in our opinion, the gujarat high court was right in taking a similar view in the impugned judgment.”15. subsequently, in government of tamil nadu & another vs. vasantha bai 1995 (supplimentary) scc 423.the aforesaid view was followed by holding that the stay of dispossession would tantamount to stay of further proceedings being taken under section 11 and explanation to section 11-a, covers such an order and the entire period of stay has to be excluded in computing the period of two years prescribed under section 11-a of the act.16. again, in m.ramalinga thevar vs. state of tamil nadu 2000 (4) scc 32.it was held as under: cwp no.19042 o”8. /p>“8. thus, the position is not well settled that even when dispossession alone is stayed by the court the period during which such stay operates would stand excluded from the time fixed for passing the award, the expiry of which would render the acquisition proceedings lapsed. in the light of the said interpretation it is not idle to contend that the government is debarred from proceeding with the acquisition. the appeal is accordingly dismissed. appeal dismissed.”17. similarly, in bailamma (smt.) @ doddabailamma (dead) & others vs. poornaprajna house building cooperative society & others (2006) 2 scc 416.it was held that the explanation is in the widest possible terms which do not limit its operation to cases where an order of stay is obtained by a land-owner alone and would also be effective qua stay obtained by some other person and once an order of stay is obtained, the government and the collector are prevented from taking any further action.18. in view of the above, it cannot be said that the award pronounced on 02.01.2012 was hit by limitation in terms of section 11-a of the act. accordingly, finding no merit in the writ petition, the same is dismissed. (g.s.sandhawalia) judge 28 01.2013 (ajay kumar mittal) sailesh judge
Judgment:

CWP No.19042 o”

1. IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH CWP No.19042 of 2011 Date of decision:28.01.2013 The Friends Co-operative House Building Society (Registered) .....Petitioner Versus State of Haryana & others ......Respondents CORAM: HON'BLE MR.JUSTICE AJAY KUMAR MITTAL HON'BLE MR.JUSTICE G.S.SANDHAWALIA Present: Mr.Girish Agnihotri, Sr.Advocate, with Mr.Vijay Pal & Mr.Arvind Seth, Advocates, for the petitioner, Ms.Palika Monga, DAG, Haryana, for respondents No.1, 2 & 4, Mr.Rishi Tondon, Advocate, for respondent No.3. **** 1. Whether Reporters of local papers may be allowed to see the judgment?. Yes 2. Whether to be referred to the Reporters or not?. Yes 3. Whether the judgment should be reported in the Digest?. Yes **** G.S.Sandhawalia J.

1. The question that arises for consideration of this Court, in the present petition is that while granting an order of status quo with respect to possession which was not extended at the time of admission would give petitioner the benefit of Section 11-A of the Land Acquisition Act, 1894 (for brevity, the 'Act') and the proceedings would lapse.

2. The facts which are necessary for determination of the above-said question as pleaded in the writ petition, filed under Articles 226/227 of the Constitution of India, are that the petitioner-Society purchased the land vide various sale deeds in the year 1982-83 for development of residential houses being a registered co-operative house building society. Respondent No.2 issued a notification under Section 4 of the Act on 05.04.1990 for the public purpose for development and utilization of land as residential, commercial and industrial area under the Haryana Urban Development Act, 1977 (for brevity, the 'HUDA Act') CWP No.19042 o”

2. for the land situated in village Jagadhri, District Yamuna Nagar. The petitioner- Society filed objections under Section 5-A of the Act and thereafter, notification under Section 6 of the Act was issued on 04.04.1991.

3. The petitioner approached this Court by filing CWP No.15755 of 1991. Notice of motion was issued in the said case on 11.10.1991 and “status quo with respect to possession”. was ordered by a Division Bench of this Court. The writ petition was admitted on 14.05.1992. However, there was no specific order passed regarding continuance of the order of status quo. Eventually, the writ petition was dismissed on 04.04.2011 by up-holding the procedure adopted and repelling the challenge to the acquisition of the land in question. The possession was taken on 21.07.2011. It is the case of the petitioner that the respondents illegally took the possession of the land without pronouncing any award or without giving any compensation. Accordingly, civil writ petition was filed with the plea that no award had been passed as required under Section 11-A of the Act, within a period of 2 years from the date of publication of the declaration under Section 6 of the Act and thus the entire acquisition proceedings had lapsed. It was pleaded that since there was no interim order after 11.10.1991 when the case was at motion stage and therefore, the period started running from 14.05.1992 when the writ was admitted and the period of 2 years expired on 14.05.1994 and thus, the acquisition proceedings had lapsed.

4. In the un-amended written statement filed on behalf of respondents No.1 & 2, it has been pleaded that the award in respect to the land was announced on 15.03.1993 and possession was taken over and handed over to the beneficiary Department, i.e., HUDA under Section 16 of the Act, except the land for which the orders of status quo and stay of dispossession had been passed. But the award in respect to the land in dispute could not be announced due to the Court order dated 11.10.1991. After the dismissal of the writ petition on 04.04.2011, CWP No.19042 o”

3. possession of the disputed land was taken and handed-over to the beneficiary Department and the award could be made on or before 19.05.2012. It has been further averred that SLP No.20405 of 2011 against the order dated 04.04.2011, passed by this Court, had been dismissed on 05.08.2011. The High Court had never vacated the status quo order and it remained operative till the dismissal of the writ petition. It was further pleaded that the Collector could announce the award within a period of 2 years from the date of publication and if no award is made within the period, the entire proceedings would lapse.

5. Subsequently, amended written statement was filed wherein it was averred that inadvertently, the possession of the land involved in CWP No.15755 of 1991 was also written in the rapat roznamcha by mistake along with the land involved in CWP Nos.9472 & 6626 of 1995 which were jointly decided on 04.04.2011. The same had been rectified by rejecting the previous possession dated 21.07.2011 and the award with respect to the land measuring 14.08 acres involved in CWP No.15755 of 1991 had been made and possession was also handed over to the beneficiary Department, i.e., HUDA under Section 16 of the Act on the day of the award, i.e., 02.01.2012. The land, therefore, fully vested with HUDA, free from all encumbrances.

6. Written statement was also filed on behalf of HUDA in which it was mentioned that the award dated 02.01.2012 was passed within the stipulated time as envisaged under the Act since the status quo order was operative during the period of litigation and got vacated only on the dismissal of the writ petition. The period from 11.10.1991 till 04.04.2011 was liable to be excluded from the period within which the award was required to be passed and accordingly, the award was well within the stipulated period, after excluding the period of stay. The land around the area had already been developed and the land involved in CWP No.15755 of 1991 was lying vacant due to the pendency of the writ petition. The CWP No.19042 o”

4. said writ petition had been filed with a ulterior motive. The petitioner had also filed civil suit before the Civil Judge, Junior Division, Yamuna Nagar and they were abusing the process of law.

7. In the replication filed by the petitioner, it was pleaded that the possession of the land was taken without passing of the award. It was pleaded that no order was passed and possession was handed over to the beneficiary Department without announcing the award and therefore, the acquisition proceedings had lapsed.

8. Learned Senior Counsel for the petitioner has submitted that once the stay had not been extended on 14.05.1992 at the time of admission of the writ petition, the proceedings for acquisition had lapsed. Reliance was placed upon the judgment in Ashok Kumar & others Vs. State of Haryana & another 2007 (3) SCC 47.to contend that the Hon'ble Apex Court specifically held that it was wrong for the High Court to hold that once an order of stay had been passed, even if for a limited period, the same would continue to operate until it is vacated by an express order or otherwise.

9. Counsel for the State, on the other hand, submitted that since there was status quo regarding possession, it would deem to continue till the dismissal of the writ petition, i.e., 04.04.2011. The award was passed on 02.01.2012 and after excluding the period from 11.10.1991 to 04.04.2011, it was within the prescribed period of 2 years as per Section 11-A of the Act.

10. Section 11A of the Act reads as under: “11A. Period shall be which an award within made. - The Collector shall make an award under section 11 within a period of two years from the date of the publication of the declaration and if no award is made within that period, the entire proceeding for the acquisition of the land shall lapse. Provided that in a case where the said declaration has been published before the commencement of the Land Acquisition (Amendment) Act, 1984 (68 of 1984), the award shall be made CWP No.19042 o”

5. within a period of two years from such commencement. Explanation – In computing the period of two years referred to in this section, the period during which any action or proceeding to be taken in pursuance of the said declaration is stayed by an order of a Court shall be excluded.”

11. A perusal of the same would show that the award is to be made within a period of 2 years from the date of publication of the declaration and the entire proceedings would lapse in case the award is not made within that period. According to the explanation appended to the Section, the period during which any action or proceedings taken in pursuance of the said declaration is stayed by an order of the Court, the said period for purposes of computing the 2 years shall be excluded. The purpose for enacting the Section is very clear. It ensures that the award is passed within the prescribed period so that the land-owners are not deprived of the amount of compensation by the authorities for indefinite period. The provision is mandatory and failure to pronounce the award would invalidate the whole proceedings. The authorities have, however, been given the protection that where the proceedings of the land acquisition are challenged and there is stay by an order of a Court, the said period shall be excluded.

12. In the present case, the petitioners had challenged the notification under Sections 4 & 6 of the Act by filing CWP No.15775 of 1991 and were beneficiary of the status quo order. They not cannot turn around and say that the award which has been announced on 02.01.2012 is after the period of 2 years and therefore, the proceedings had lapsed. Once status quo with regard to possession had been ordered in 1991, the authorities were justified in not announcing the award regarding the land in dispute and could not take any further proceeding in pursuance of the said declaration.

13. In the amended written statement filed by respondents No.1 & 2, it has been clarified that the award with respect to the land had been made and announced on 15.03.1993, except the land for which the order of status quo and CWP No.19042 o”

6. stay dispossession had been passed. The order of status quo regarding possession was not till the next date and thus, can be of no help to the petitioner. The judgment relied upon by the Learned Senior Counsel for the petitioner in Ashok Kumar (supra) pertains to a case where, in a civil suit, injunction was obtained and at the initial stage, the words used were “in the meantime”. and the defendants were refrained from demolishing the construction. The stay order then was extended by specific order by using the words “till then”. and eventually, the suit was dismissed in default. Accordingly, the Hon'ble Apex Court came to the conclusion that in view of the fact that the words “in the meantime”. and “till then”. had been used, it could not be held that the stay would carry on. The petitioners cannot derive any benefit from the said judgment. Herein, while granting status quo regarding possession on 11.10.1991, this Court had never ordered that the stay would be operative till a particular date. Thus, under the circumstances, the stay order continued till the final disposal of the writ petition, i.e., 04.04.2011.

14. It was next urged by the learned counsel for the petitioner that there was only an order of status quo regarding possession and there was no stay on the pronouncement of the award by the Court and therefore, the operation of stay of dispossession could not be used for the purpose of excluding it under the explanation of Section 11-A of the Act. The said issue is no longer res integra. A three Judge Bench of the Hon'ble Apex Court, while examining the provisions of the Act in the case of Yusufbhai Noormmohmed Nendoliya Vs. State of Gujarat & another 1991 (4) SCC 53.held that Section 11-A is very widely worded and covers in its sweep the entire period during which any action or proceeding are to be taken in pursuance of the declaration under Section 6 of the Act. This view of the Gujarat High Court was up-held that where the respondents had been restrained from taking possession of the land, it would amount to any CWP No.19042 o”

7. action or proceeding in pursuance of the said declaration which had been stayed and the contrary view of the Kerala High Court did not find favour. The relevant paragraph reads as under:

“8. The said Explanation is in the widest possible terms and, in our opinion, there is no warrant for limiting the action or proceedings referred to in the Explanation to actions or proceedings preceding the making of the award under Section 11 of the said Act. In the first place, as held by the learned Single Judge himself where the case is covered by Section 17, the possession can be taken before an award is made and we see no reason why the aforesaid expression in the Explanation should be given a different meaning depending upon whether the case is covered by Section 17 or otherwise. On the other hand, it appears to us that the Explanation is intended to confer a benefit on a land-holder whose land is acquired after the declaration under Section 6, is made in cases covered by the Explanation. The benefit is that the award must be made within a period of two years of the declaration, failing which the acquisition proceedings would lapse and the land would revert to the land-holder. In order to get the benefit of the said provision what is required, is that the land-holder who seeks the benefit must not have obtained any order from a Court restraining any action or proceeding in pursuance of the declaration under Section 6 of the said Act so that the Explanation covers only the cases of those land-holders who do not obtain any order from a Court which would delay or prevent the making of the award or taking possession of the land acquired. In our opinion, the Gujarat High Court was right in taking a similar view in the impugned judgment.”

15. Subsequently, in Government of Tamil Nadu & another Vs. Vasantha Bai 1995 (Supplimentary) SCC 423.the aforesaid view was followed by holding that the stay of dispossession would tantamount to stay of further proceedings being taken under Section 11 and explanation to Section 11-A, covers such an order and the entire period of stay has to be excluded in computing the period of two years prescribed under Section 11-A of the Act.

16. Again, in M.Ramalinga Thevar Vs. State of Tamil Nadu 2000 (4) SCC 32.it was held as under: CWP No.19042 o”

8. /p>

“8. Thus, the position is not well settled that even when dispossession alone is stayed by the Court the period during which such stay operates would stand excluded from the time fixed for passing the award, the expiry of which would render the acquisition proceedings lapsed. In the light of the said interpretation it is not idle to contend that the Government is debarred from proceeding with the acquisition. The appeal is accordingly dismissed. Appeal dismissed.”

17. Similarly, in Bailamma (Smt.) @ Doddabailamma (Dead) & others Vs. Poornaprajna House Building Cooperative Society & others (2006) 2 SCC 416.it was held that the explanation is in the widest possible terms which do not limit its operation to cases where an order of stay is obtained by a land-owner alone and would also be effective qua stay obtained by some other person and once an order of stay is obtained, the Government and the Collector are prevented from taking any further action.

18. In view of the above, it cannot be said that the award pronounced on 02.01.2012 was hit by limitation in terms of Section 11-A of the Act. Accordingly, finding no merit in the writ petition, the same is dismissed. (G.S.SANDHAWALIA) JUDGE 28 01.2013 (AJAY KUMAR MITTAL) sailesh JUDGE