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PETITIONER: ALLAHABAD DEVELOPMENT AUTHORITY

       Vs.

RESPONDENT: NASIRUZZAMAN & ORS,

DATE OF JUDGMENT:       02/09/1996

BENCH: K. RAMASWAMY, G.B. PATTANAIK

ACT:

HEADNOTE:

JUDGMENT:                   THE 2ND DAY OF SEPTEMBER Present:                Hon’ble Mr.Justice K.Ramaswamy                Hon’ble Mr Justice G.B.Pattanaik      Milan Banerjee,  Sr.Adv. and  R.B.Mishra, Adv. With him for the appellant      In-person for the Respondents                          O R D E R      The following Order of the Court was delivered:      Leave granted.      We have heard learned counsel for the appellant as well as respondent-in-person who is also a practising advocate.      Notification  under   Section  4   (1)  of   the   Land Acquisition Act,  1894 (1 of 1894) (for short, the Act’) was published on  June 18,  1977 acquiring  the large  extent of land admeasuring 23 bighas and 19 biswas for Transport Nagar Scheme. Enquiry  under Section 521) of the Act was dispensed with in  exercise of  the power  under Section  17(1-A),  as emended by the Legislature of the U.P, substituting the Act. Possession  thereof  was  taken  on  November  2,  1977  and transferred to  the  Transport  Nagar  Scheme.  Those  lands stood vested  in the State under Section 16 of the Act  free from  all   encumbrances  and   stood  transferred   to  the beneficiary.      The question that arises for consideration  is: whether the High  Court was  right  in  passing  the    order  dated December 15,  1993 and  the order  dated    January  29,1990 declaring that  the acquisition  proceedings by operation of Section 11-A, as amended by Act 68 of 1984, stood lapsed and direction  given   for     delivery  of  possession  to  the respondents  would   be  in     accordance   with  law?  The controversy is  no longer  res   integra. In Lt. Governor of H.P vs.  Avinash Sharma   [(1971)  1 SCR  413 this Court had laid down  that once  the lands stood in the State free from all  encumbrances there is no question of divesting the land and re-vesting  the land  in the erstwhile owners. The  only right the  erstwhile owner has is as to the determination in accordance with  the provision  of the   Act. In view of the fact that  there was  inordinate delay  in passing the award after the  declaration under Section 6(1) was published, the

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Parliament in  the Amendment Act introduced Section 11-A and directed that  the  Collector  shall  make  an  award  under Section 11 within a period of two years from the date of the publication of  the declaration. If no  award is made within that period,  the entire  proceedings for the acquisition of the land  shall lapse.  Under the  proviso, it was said that where  the   declaration  has   been  published  before  the commencement of  the Amendment  Acts the award shall be made within a  period of  two years  from the commencement of the Amendment Act.  In the  impugned judgment,  it would  appear that the  learned    Judges  asked  the  counsel  to  verify together the  award came  to be  made  within  two  year  as indicated. The  counsel on  verification had stated that the award was  not trade  within two years from the commencement of  the   Amendment  Act,   namely,  September   24,   1984. Consequently       the    declaration  was  given  that  the notification under  Section   6 stood  lapsed. This question was examined  by  this  Court  in  Satendra  Prasad  Jain  & Ors.[(1993) 4  SCC 369] and Awadh Bihari Yadav & Ors etc. v. State of  Bihar  & Ors [(1995) 6 SCC 31 at 38] and held that Section 11-A  does not  apply to  cases of acquisition under Section 17  where Possession  was already taken and the land stood vested  in the State. The notification under Section 6 do not  lapse due to  failure to make award within two years from the  date of declaration. The view of the High Court is erroneous in law .      It is  no doubt  true that  there was  no appeal  filed against the  said  order  except  the  one  now  filed  with application for  condonation  of  the  delay.  The  question therefore, is:  whether the view taken by the High Court  is correct in  law? As  early as  in 1971, this Court had  held that once the lands stood vested in the State, the  question of  divesting   and  revesting  the  acquired  land  in  the erstwhile owner  did not  arise. The Amendment Act has to be relied upon  only in  the pending  proceedings. But once the possession was  taken pursuant  to the exercise of the power under Section  17(4) of  the Act, the  lands stood vested in the State  under Section  16  free  from  all  encumbrances. Thereby,  the   question  of  lapse  of  the  proceeding  of notification  under   Section  4(1)  and  declaration  under Section 6  does  not  arise.  Therefore,  the  view  of  the Division Bench  was clearly  erroneous. In that perspective, this court has considered in Municipal Committee, Amritsar & Anr. vs.  State of  Punjab &  Ors.[(1969) 3 SCR 447 at 454], and held thus:      "The Order  made by  the High Court      in Mohinder  Singh  Sawhney’s  case      striking down  the   Act was passed      on the assumption that the validity      of  the   Act  was   liable  to  be      adjudged  by  the  test  of    "due      process  of  law".  The  Court  was      plainly in error in so assuming. We      are also  unable to  hold that  the      previous decision  operates as  res      judicata  even  in  favour  of  the      petitioner in  whose  petitions  an      order   was made  by the High Court      in the  first group  of  petitions.      The effect  of  that  decision  was      only that  the Act  was in law, non      existent, so  long as  there was no      definition   of    the   expression      "cattle fair  " in  the  Act.  That      defect has  been  remedied  by  the

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    Punjab  Act  18  of  1968.  We  may      hasten to observe, that  the Act as      originally       enacted        was      unenforceable even on the ground of      vagueness."      In view  of the  above ratio,  it is seen that when the Legislature has  directed to  act in a particular manner and the failure to ac results in a consequence, the  question is whether the  previous order  operates  as  res  judicata  or estoppel as  against the  persons  in    dispute.  When  the previous decision  was found  to be  erroneous on  its face, this court  held in  the above   judgment  that it  does not operate as  res Judgment  We respectfully  follow the  ratio therein. The principle  of estoppel or res Judgment does not apply where to give  effect to them would be to counter some statutory direction or prohibition. A statutory direction or prohibition cannot  be over-ridden or defeated by a previous judgment between the parties. In view of the  fact that land had  already  stood  vested  in  the  State  free  from  all encumbrances, the  question of  divesting  does  not  arise. After the vesting has taken place, the  question of lapse of notification under  Section 4(1)  and the  declaration under Section  6   would  not   arise.  Consideration   from  this perspective,  original  direction  itself  was  delivery  of possession of  the land,  in consequence,  was not  valid in law. Further  it is  made   clear that  the  respondent  are entitled to  interest at  9% for  one year  from the date of taking possession  and  thereafter at 15% per annum till the date of deposit into court. The respondents are not entitled to market  value as on the date of award.      With these modifications, the appeal is allowed but, in the circumstance, without costs.