Heera Lal and ors. Vs. State of Rajasthan and ors. - Court Judgment

Chauhan, J.

(1). The instant writ petition has been filed for seeking direction to the respondents to enforce the award dated 20.11.98 (Annex.4) passed under the Land Acquisition Act and to quash the order dated 24.12.99 (Annex.6), by which the earlier award dated 20.11.98 had been cancelled.

(2). The facts and circumstances giving rise to this case are that petitioners claim to be the owner of the land in dispute in Aaraji No. 21e, situate in the Revenue Estate of village Vadgun, district Banswara, having certain constructions thereon and in respect of which a Notification under Section 4(1) of the Land Acquisition Act, 1894 (for short, 'the Act') was issued on 12.6.97 (Annex. 1). The substance thereof was published in the local news-paper on 14.7.97 (Annex.2). The parties entered into a compromise and the provisional award was passed by the Land Acquisition Officer on 13.10.98 (Annex.3) and the final award was made on 20.11.94 (Annex.4). Initially, the writ petition was filed with a direction to the respondents to enforce the said award dated 13.10.98 (Annex.3) and the final award dated 20.11.98 (Annex.4); however, during pendency of the writ petition, a fresh order has been passed on 24.12.99 (Annex.6) cancelling the said award. Hence, the petition was amended for quashing the said order dated 24.12.99 (Annex.6) and to enforce the Award dated 20.11.98 (Annex.4).

(3). Mr. D.S. Shishodia, the learned Senior Advocate, has submitted that once the award has been made, the respondents are bound to ensure its compliance and in absence of any competence to cancel the said award under the Statute, the order dated 24.12.99 is void and nullity. On the other hand, Mr. Kalla, learned counsel for respondents, has submitted that the parties could not have entered into the compromise at any stage and the Award has been cancelled after holding the inquiry, therefore, the order dated 24.12.99 is a valid order under the law for the reason that the

(4). I have considered the rival submissions made by the learned counsel for me parties and perused the record.

(5). Petitioners did not lay any factual foundation that the Award dated 20.11.98 had been made under the Act. No information has been furnished as how proceedings stood concluded. This Court, vide order dated 19.2.2001, directed the petitioners to file additional affidavit as on that dale Section 6 Declaration had been issued. In response to the same, reply has been filed as under:-

'.....issuance or non-Issuance of the notification under Section 6is not relevant as the final awards have been issued and what the petitioners are seeking is enforcement and impleadment of these awards.'

(6). It is not the petitioners' case that in pursuance of Section 4 Notification dated 12.6.97 (Annex.1), any Declaration under Section 6 of the Act had been made and in absence of Section 6 Declaration, it is difficult to assume that the proceedings can be held to have been completed under the Act for the reason that issuing notification under Section 4 is only a tentative step that the land is liable to be needed for a public purpose and it gives right to the tenure-holder to file objections under Section 5-A of the Act. It is only the Declaration under Section 6 which is a conclusion of the Competent Authority to proceed with the acquisition. In absence of such Declaration under Section 6, it cannot be held that the proceedings under the Act can be taken further. Mr. Shishodia has not denied the factum regarding non- issuance of Section 6 Declaration, rather submitted that respondents had not denied the issuance thereof. The question of such a denial could have arisen only if there were pleadings in this respect.

(7). Sub-section (1) of Section 6 of the Act provides that the Appropriate Government, after considering the report, if any, made under Section 5-A of the Act is satisfied that any particular land is needed for a public purpose, or for a company, 'a declaration shall be made to that effect' under the signatures of the Secretary to such Government or some other officer duly authorised to certify its order. A proviso thereto further fixes the period of one year from the date of last publication of Section 4 Notification for issuing a Declaration under Section 6. Sub-section (2) of Section G provides that every declaration shall be published in the official gazette and in two daily local news-papers having circulation in the area. Sub-section (3) thereof provides that the said declaration shall be conclusive evidence that the land in needed for a public purpose and after making such Declaration, the Appropriate Government may acquire the land in the prescribed manner. Section 7 of the Act provides that 'whenever any land shall have been so declared to be needed for a public purpose, the Appropriate Government or some officer authorised by the Appropriate Government in this behalf, shall direct the Collector to take order for acquisition of the land.'

(8). The language used therein makes it clear that provisions of Sections 6 and 7 are mandatory in nature. The Legislature, in its wisdom, has used the word 'shall' in all the provisions and any acquisition in violation thereof cannot be held to be valid. Limitation period and the Authority under whose signatures the Declaration can be issued, have also been provided. Therefore, proceeding without Declaration under Section 6 shall be void because it is Section 6 Declaration which confers the competence upon the Land Acquisition Collector to proceed further.

(9). Sub-section (2) of Section 11 of the Act empowers the Collector to pass an award in view of the compromise reached between the parties, but that has to be done only after Section 6 Declaration stands published in the Gazette and local news-papers. If a compromise regarding the assessment of value of the land is reached between the Appropriate Government and the tenure-holder without Declaration under Section 6 etc., that can be held to be taking over the land by private negotiation but not under the Act. Therefore, unless there is a Declaration under Section 6 of the Act by the Appropriate Government and the same is published in the official gazette and local news-papers, land cannot be acquired under the Act.

(10). Section 5-A was brought into the Act by the Amendment Act, 1923 requiring the Collector to hold an inquiry and make a report and then further obligation was imposed upon the Appropriate Government to consider that report and the objections, deal with the same and then to make a Declaration under Section 6. Therefore, a Declaration under Section 6 is a condition precedent for further acquisition proceedings. (Vide Ganga Bishnu Swaika and Anr. v. Calcutta Pinjarpole Society and Ors.(1). The Slate Government cannot proceed with the acquisition without a prior valid Declaration under Section 6, that too after its publication in the official gazette. The only exception, which the Legislature has carved out, is that when additional land is required as part of the house under the provisions of Sections 49(2) and 49(3) of the Act. Even in cases of emergency arising under Section 17, Declaration under Section 6 has to be made and duly published. Merely because the Government takes a decision to act under Sub-section (4) of Section 17 and it has dispensed with the procedure prescribed under Section 5-A, it cannot be held that Section 6 Declaration can also be dispensed with.

(11). Moreso, the acquisition has to be made only of the land described in the Declaration under Section 6. There can be no acquisition out-side such Declaration; if it is so done, it would be ultra vires as held by the Privy Council in Ezra v. Secretary of State (2); Collector of Chinglepet v. Kadir Mohideen (3) and State of Punjab v. Madan Gopal (4).

(12). A Constitution Bench of the Hon'ble Supreme Court, in Somawanti and Ors. v. State of Punjab (5), held that the publication of Section 6 Declaration is a conclusive proof of the decision of the Government to acquire the land and is synonymous to conclusive evidence and there is no much difference from the conclusive evidence and it gives finality to the establishment of existence of the said fact. A Declaration is conclusive at least to the extent that the land,is required for public purpose or for a company, and decision to acquire the land is final unless it is shown to have been issued in colourable exercise of power.

(13). In the instant case, the amended writ petition contains only five paragraphs. First paragraph furnishes the details of the land in dispute and issuance of Notification under Section 4(1) of the Act on 12.6.97. In the second paragraph, after making reference to Section 4 Notification, details have been furnished regarding the compromise reached between the parties and making of the award in view thereof. Third paragraph again makes a reference to the Notification under Section 4 and representations for implementation of the award stating that the petitioners had been left high and dry without ensuring compliance of the award and making payment in view thereof. Paragraph 3-A pertains to the impugned order dated 24.12.99 (Annex.6) cancelling the earlier award dated 20.11.98 (Annex.4) without affording an opportunity to the petitioners. No other facts have been stated by the petitioners. It is not known whether the petitioners are still in possession of the land and if not, when they were dispossessed and under what circumstances.

(14). It is settled proposition of law that a party has to plead the case and produce/adduce sufficient evidence to substantiate his submissions made in the petition and in case the pleadings are not complete, the Court is under no obligation to entertain the petition. In Bharat Singh v. State of Haryana (6), the Hon'ble Supreme Court has observed as under-

'In our opinion, when a point, which is obstansibly a point of law is required to be substantiated by facts, the party raising the point, if he is the writ petitioner, must plead and prove such facts by evidence which must appear from the writ petition and if he is the respondent, from the counter affidavit. If the facts are not pleaded or the evidence in support of such facts is not annexed to the writ petition or the counter- affidavit, as the case may be, the Court will not entertain the point. There is a distinction between a hearing under the Code of CivilProcedure and a wril petition or a counter-affidavit. While in a pleading, i.e. a plaint or written statement, the facts and not the evidence are required to be pleaded. In a writ petition or in the counter affidavit, not only the facts but also the evidence in proof of such facts have to be pleaded and annexed to it.'

(15). Similar view has been reiterated in Larsen & Tubro v. State of Gujarat (7); National Building Construction Corporation v. S. Raghunathan and Ors. (8) and Ram Narain Arora v. Asha Rani and Ors. (9).

(16). In Chitra Kumari v. Union of India and Ors. (10), the Hon'ble Apex Court held that a party should make the averments in the pleadings, then press the same at the necessary stage and bring evidence to prove the same, otherwise the opposite party would not have an opportunity to know exact nature of the case against him.

(17). If Section 6 Declaration is final determination of the Competent Authority to proceed with the acquisition, no award could have been made in absence of such Declaration. I find no force in the contention of the petitioners that Section 6 is not an essential requirement when there is an agreement between the parlies which could be at any stage of the proceedings. Reliance has been placed by Mr. Shishodia upon the judgment of the Hon'ble Supreme Court in Ishwarlal Premchand Shah and Ors. v. State of Gujaral and Ors. (11). However, the said judgment does not deal with the issue involved herein because the factum of issuance of Section 6 Declaration had not been in dispute.

(18). It has been nither to uncontroverted legal position that where a statute requires to do a certain thing in a certain way, the thing must be done in that way or not at all. Other methods or mode of performance are impliedly and necessarily forbidden. (VideTaylor v. Taylor (12); Nazir Ahmed v. King Kmperor (13); Deep Chand v. State of Rajasthan (14); Patna Improvement Trust v. Lakshmi Devi (15); State of U.P. v. Singhara Singh and Ors. (16); Nike Ram v. State of Himachal Pradesh (17); Ramchandra Keshav Adke v. Govind Joli Chavare and Ors. (18); Chettiam Vceltil Ammad v. Taluk Land Hoard (19); State of Bihar v. J.A.C. Saldanna (20); A.K. Roy and Anr. v. State of Punjab and Ors. (21); State of Mizoram v. Biakchhawna (22); J.N. Genetra v. Morvi Municipality, Morvi (23); Municipal Corporation of Delhi v. Jagdish Lal and Anr. (24) and Ballavdas Aggarwala v. J.C. Chakraverty (25), In Purtabpur Company Ltd. v. Cane Commissioner of Bihar (26); Board of High School and Intermediate Education, Uttar Pradesh, Allahabad v. Ghan Shyam Das Ulpal (27); Maneka Gandhi v. Union of India and Anr. (28); Chandrika Jha v. State of Bihar and Ors. (29); Babu Verghese and Ors. v. Bar Council of Kerala and Ors. (30); Chandra Kishore Jha v. Mahavir Prasad (31) and Haresh Dayaram Thakur v. State of Maharashtra and Ors. (32).

(19). In the instant case, as the award dated 20.11.98 (Annex.4) had been made without Section 6 Declaration, it cannot be held to have been made under the Act.

(20). The Hon'ble Supreme Court in Poona City Municipal Corporation v. Dallatraya Nagesh Deodher (33). while interpreting the provision under the Bombay Provincial Municipal Corporation Act, 1949, observed as under:-

'The benefit of this section would be available to the Corporation only if it was held that this deduction of ten percent, was 'an act done or purported to be done in pursuance or execution or intended execution of this Act.' We have already held that this levy was not in pursuance or execution of the Act. it is equally clear that in view of the provisions of Section 127(4) (lo which we have already referred) the levy could not be said to be 'purported to be done in pursuance or execution or intended execution of the Act'. Kor, what is plainly prohibited by the Act cannot be claimed to be purported to be done in pursuance or intended execution of the Act. '

(21). The Hon'ble Supreme Court, in Municipal Corporation v. Niyamatullah (34), interpreted Section 135(2) of the Indore Municipal Act, 1909, in the following terms:-

'The provisions contained in Section 135 of the Indore Municipal Act will be applicable to things done under the Act. It is manifest that in the present case the order of dismissal passed by Shri Ghatpande was beyond his jurisdiction and is, therefore, not an act done under the Act.'

(22). The aforesaid judgments were reconsidered and approved by the, Hon'ble Supreme Court in J.N. Ganatra v. Morvi Municipality, Morvi (supra).

(23). There should be no confusion on jurisdictional issue to assess the market value of the land on the basis of compromise reached under Section 11(2) of the Act and to proceed with the acquisition without Section 6 Declaration. It is settled legal position that Award can be made in view of the agreement of the parties regarding the market value of the land but the Collector lacks competence to proceed with acquisition without valid Declaration under Section 6 of the Act.

(24). If the first award dated 20.11.98 (Annex.4) has not been made under the Act, it does not require to be enforced, being dehors the Statutory provisions and in such an eventuality, principles of natural justice are not attracted.

(25). In Santosh Kumar and Ors. v. Central Warehousing Corporation and Anr., (35), the Hon'ble Supreme Court held that the Authority is bound to make payment of the compensation as per the Award except in case of fraud, corruption or collusion. There is an express bar under the provisions of Sections 50(2) and 52 of the Act that reference under Section 18 cannot be maintained by the said Authorities against the award made under Sections 11 and Section 25 expressly prohibits the Court from reducing the amount of compensation while dealing with the reference under Section 18. It is based on the reason that the award made by the Collector is that of a 'tender' or 'offer' made by him on behalf of the Government and hence once the offer has been made on behalf of the Government, it becomes difficult to appreciate how the Government or any one on that behalf can be permitted to raise finger towards the award made by its agent. (Vide Harish Chandra v. Deputy Land Acquisition Officer (36) and Mohammad Hasnudeen v. State of Maharashtra (37).

(26). In view of the above, it is crystal clear that the Award is binding upon the Authority and it is not even permissible for the Authority to move an application for reference under Section 18 of the Act unless it brings out its case within the exception of fraud, collusion or corruption. But the instant is a case of acquisition proceedings not taken under the Act. Moreso, the subsequent order has been passed after holding an inquiry by the Competent Authority, therefore, it does not require any interference. The Award which has not been made under the Act cannot be enforced.

(27). Moreso, there is no occasion for this Court to entertain the petition which does not have any factual foundation and legal averments to reach the logical conclusion. If the compromise regarding the assessment of market value of the land has been reached between the parties out side the scope of provisions of the Act, the petitioners may be free to get the same enforced through the appropriate Forum, but as the award dl. 20.11.98 has not been made under the Act, it cannot be enforced. The cancellation of the earlier award, vide order dt. 24.12.99 (Annex.9), makes no difference for the reason that the Award dt. 20.11.98 (Annex.4) itself is unenforceable and inexecutable.

(28). No other point has been urged by the learned counsel for the petitioners.

(29). The petition is devoid of any merit and does not warrant interference by this Court under equitable jurisdiction. Hence, dismissed. In the facts and circumstances of the case, there shall be no order as to costs.