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PETITIONER: ABDUL MAJEED SAHIB & ANR.

       Vs.

RESPONDENT: THE DISTRICT COLLECTOR & ORS.

DATE OF JUDGMENT:       01/11/1996

BENCH: K. RAMASWAMY, G.B. PATTANAIK

ACT:

HEADNOTE:

JUDGMENT:                THE 1ST DAY OF NOVEMBER, 1996 Present               Hon’ble Mr. Justice K.Ramaswamy               Hon’ble Mr. Justice G.B. Pattanaik E.M.S. Anam, Adv. for the appellants. V.R. Reddy, Additional Solicitor General, G. Negeswar Reddy, C.V.S. Rao,  Advs. for  Mrs. Anil  Katiyar, and M.T. George, Advs, With him for the Respondents.                          O R D E R      The following Order of the Court was delivered:                          O R D E R      Delay condoned.      Leave granted.      We have heard learned counsel on both sides.      Notification under Section 4(1) of the Land Acquisition Act, 1894 [for short "The ACT"] was published on October 16, 1987 proposing  to acquire  the land  for establishment of a telephone  exchange.   Declaration  under   Section  6   was published in  June 1988.  It would  appear that  there was a negotiation  between   the   parties   for   settlement   by determination of  compensation  by  agreement,  but  in  the process, tow  years Limitation prescribed under Section 11-A introduced by  Act 68 of 1984 in Act, had lapsed on June 16, 1990. As  a result,  the  notification  and  declaration  by operation of  Section 11-A  stood lapsed.  Subsequently, the appellant had  filed an  application under  Section 48(2) on September 17,  1990 for  determination of compensation which was rejected  on February  18, 1992.  The writ  petition was dismissed in  O.P. No.  1061/93 on  July 9, 1993 by the High Court of Kerala, Thus, this appeal by special leave.      Shri Anam, Learned counsel for the appellant, contended that bu  statutory operation  under Section  11-A, when  the acquisition stood lapsed, it amount, it amounted to withdraw from acquisition  by operation of sub-section (1) of Section 48.  Therefore,   sub-section  (2)   of  Section   48  stand attracted. Resultantly,  the Collector  shall determine  the amount of  compensation due  for the damages suffered by the owner in  consequence of  the notification  published  under Section 4(1)  of Act and declaration under Section 6 and the proceeding taken  thereafter. The  High Court  and the  Land

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Acquisition Officer,  therefore, were not right in rejecting the claim  of the appellant. Having regard to contention, we think that  the contention  of the  learned counsel  is  not well-founded.      Section 11-A was brought on statute by Amendment Act 68 of 1984.  It was notorious that the State, After Publication of declaration  under Section  6 went on delaying for years, to pass  the awards  putting obstruction to the owner of the land for enjoyment; resultantly, loss and undue disadvantage ensued to  the owner of the land. To mitigate such hardship, the Parliament introduced Section 11-A and directed the Land Acquisition officer  to make the award within two years from the date  of publication  of last  of the step under Section 6(2) publishing  the  declaration  under  Section  6.  As  a consequence, the  Land Acquisition  Officer  is  statutorily under an  obligation, at  the pain  of invalidation  of  the acquisition itself,  to make  the  award  within  two  years unless  it  falls  within  one  of  the  provisions  or  the Explanation added thereto. In this case, neither the proviso not  the   Explanation  stards   attracted  to   the  facts. Consequently, since  the Land  Acquisition Officer  did  not make the  award within  two  years  from  the  date  of  the declaration, viz.,  June 17,  1988, the  entire  acquisition shall stand lapsed.      Section 48  (1) of  the Act  provides that "[E]xcept in the case  provided for a Section 36, the Government shall be at liberty  to withdraw  from the acquisition of any land of which possession  has not been taken. " Consequently, due to any  notification   Issued  under   Section  4(1)   of   the declaration published  under Section  6,  if  the  owner  is subjected to  any detriment  in enjoyment  of the  property, Though the  notification is  withdrawn by  the Government by exercising the  power under  Section 48(1), since possession of the  land was  not taken, to statute envisages payment of compensation for the loss suffered by the owners/tenant. The right to  claim compensaiton and the manner of determination has been  provided in sub-section (2) of Section (48) of the Act which reads as under:      "(2)   Whenever    the   Government      withdraws     from     any     such      acquisition,  the  collector  shall      determine   the        amount    of      compensation  due  for  the  damage      suffered   by    the    owner    in      consequence of the notice or of any      proceeding  thereunder,  and  shall      pay  such   amount  to  the  person      interested, together with all costs      reasonably incurred  by him  in the      prosecution  of   the   proceedings      under this Act relating to the said      land."      The word ’withdraws’ would indicate that the Government by  its   own  action   voluntarily   withdraws   from   the acquisition; the Government has necessarily to withdraw from the acquisition, in other words, there should be publication of  the  withdrawal  of  the  notification  published  under Section 4(1)  and the  declaration published under Section 6 by exercising the power under Section 48(1). sub-Section (2) of Section  48 would  then apply.  In this case, admittedly, the Government  had not  exercised the  power under  Section 48(1) withdrawing  from the  notification under Section 4(1) or the  declaration under  Section 6.  The  statutory  lapse under Section  11-A is distinct different from voluntary act on the  part of  the Government.  Therefore, it  must be  by

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withdrawal of  the notification by voluntary act on the part of the  Stat under Section 48(1). Under these circumstances, the appellant is not entitled to avail of the remedy of sub- section (2) of 48 Section 48.      The appeal is accordingly dismissed. No costs.