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PETITIONER: THE GEN. MANAGER TELE-COMMUNICATION AND ANR. ETC.

       Vs.

RESPONDENT: DR. MADAN MOHAN PRADHAN & ORS. ETC.

DATE OF JUDGMENT08/11/1995

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. PARIPOORNAN, K.S.(J)

CITATION:  1995 SCC  Supl.  (4) 268 JT 1995 (8)   193  1995 SCALE  (6)387

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      A  notification   under  Section   4(1)  of   the  Land Acquisition Act,  1894 (for  short, ’the Act’) was published in January,   1973  acquiring Ac.3.589  of land  situated in Cuttack for  Telecommunication  Department  for  residential quarters of  the staff, Telephone exchange, Post office etc. In exercise of the power under Section 17(4) read with 17(1) enquiry under  Section 5A  was dispensed  with.  Before  the declaration  under   Section  6   could   be   published   a representation was  made by  the wife of the respondent No.1 i.e. Dr.  Sarojini Pradhan  requesting to delete 24 decimals of land  for  construction  of  Nursing  Home  etc.  In  the meanwhile, Cuttack  Development Authority  declared the area to be commercial zone. In consequence, the appellant made an application requesting  to permit  construction upto  90 ft. and rest  of the  land may  be permitted  to be released for residential purposes.  In the  meanwhile, the representation made by Dr. Sarojini was pending declaration under Section 6 was published on June 30, 1975. A notice under Section 9 was served on  November 1, 1975, possession of the land was also claimed to  have been taken on April 12, 1976 and was handed over to  the Union  of India.  The Land  Acquisition Officer made his  award on  November 2,  1976 and paid the amount to all persons who had accepted the award or those who received under protest  and it  is said  that as  regards the  amount awarded to Dr. Sarojini Pradhan, it was kept in deposit.      On August  18, 1979 the respondent No.1, since his wife died in  the meanwhile,  filed W.P.  No.1139/79, challenging the validity  of the  notification under  Section  4(1)  and Section 6  declaration. The  High Court by order dated March 16, 1982  disposed of  the writ petition with a direction to the  Government   to  consider  the  representation  of  the respondent for exclusion of the land from acquisition. After an elaborate  consideration and  scrutiny of  the  necessary material, Union of India rejected the representation on June

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3, 1987.  Thereafter the  respondents filed  W.P. No.435  of 1988 challenging  the notifications.  In the  meanwhile  the headquarters of the Telecommunication Department was shifted from Cuttack  to Bhubaneswar  but it  was decided  that  the existing staff  would remain  at Cuttack.  The High Court by the impugned  order  dated  October  31,  1990  quashed  the notification under  Section 4(1)  on  the  ground  that  the exercise of the power under Section 17(4) was invalid. Since the declaration  was made  after the  amendment to Section 6 has come into existence, the notification under Section 4(1) was held to be invalid. Thus these appeals by special leave.      The crucial  question that  arises for consideration is whether  the   High  Court   was  right   and  justified  in interfering with the acquisition. It is seen that out of the extent of  Ac.3.589, the  claim of  the respondents  is only Ac.o.240 dec.  In other  words, only  around 1162 sq. yards. All others  had accepted  the award,  a few  of  them  under protest. It is common knowledge that possession would always be taken under a memo and handing over also would be under a memo.  It   is  a  recognized  usual  practice  in  all  the acquisition proceedings.  By operation of Section 17(1) even before award  could be made, the Land Acquisition Officer is entitled to take possession of the land. He did so. The time mentioned  in   Section  9   stood  expired  by  them.  Even otherwise, award  was made on November 2, 1976. By operation of Section  16 of  the Act  right, title and interest in the land vested  in the  Government  absolutely  free  from  all encumbrances. Thereby  the Government  became  the  absolute owner with  effect from  April 12,  1976. This  Court in the case of Satendra Prasad Jain & Ors. Vs. State of U.P. & Ors. [(1991) 4  SCC 531  had held  that once  possession has been taken validity  of the  notification under  Section 4(1) and declaration under  Section 6 cannot be gone into and Section 11 A does not apply.      It is  already seen  that the possession having already been taken  on April  12, 1976  and vested in the Government free from  all encumbrances  and many others having accepted the award  and some  had  received  the  compensation  under protest,  the   High  Court   was  wholly   unjustified   in interfering with  the acquisition.  We have  seen  the  plan produced before  us  which  would  indicate  that  the  land acquired comprises  the establishment  of Officers’ building and 2000 electronic exchange. Under theses circumstances, it would be  highly inconvenient  to  exclude  this  land  from acquisition. The purpose of enquiry under Section 5A is only to show that any other convenient and suitable land would be available other  than the  land sought  to be  acquired,  or there is  no public  purpose. This  issue  would  become  an academic, once the construction started and was in progress. The ratio  in the  case  of  oxford  English  School  v.  A. Hastings  Hope   reported  in  [(1995)  5  SCC  206  has  no application to  the facts  of these  appeals. In  that case, neither the award was made before the amendment act has come into force nor was possession taken. In these circumstances, this Court held that declaration under Section 6 was invalid and direction  given by  the High  Court to  conduct enquiry under Section 5A, after three years had expired, is illegal. Section 4(1)  also stood  lapsed by  operation of proviso to Section 6  of the  Act.  Therefore,  the  ratio  is  clearly inapplicable to the facts of these appeals.      In these  circumstances,  the  High  Court  was  wholly unjustified in interfering with the acquisition and quashing the notification and declaration under Section 6 of the Act.      The appeals are allowed. No costs.

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