S.S. Sandhawalia, C.J.
1. Whether the provisions of Section 17 of the Land Acquisition Act, 1894, are at all attracted to the exercise of the power under Ss. 35 and 36 of the said Act for the temporary occupation of land is the solitary though significant question which has necessitated the hearing of this writ petition by the Division Bench.
2. Learned counsel for the petitioners had expressly confined himself to the aforesaid pristinely legal issue and the facts relevant thereto are not at all in dispute. Admittedly the respondent-State issued the impugned notification, Annexure P-1, for acquiring land temporarily for taking earth for the construction of Ring Bund around village Khudan in Tahsil Jhajjar, District Rohtak, wherein they invoked the emergency powers under Section 17 of the Land Acquisition Act, 1894 (hereinafter called the Act). Aggrieved thereby the petitioners have preferred this writ petition to frontally assail the validity thereof.
3. Inevitably the controversy rages around the notification, Annexure P-1, which is under strenuous challenge and it is, therefore, apt to quote the relevant part thereof :--
'Whereas the Governor of Haryana is satisfied below is needed urgently by the Government at Public expenses, for a public purpose, i.e., for acquiring land temporarily for taking earth for the construction of Ring Bund around village Khudan in Tehsil Jhajjar, district Rohtak.
It is hereby declared that the land described in the specification below is required urgently for the above purpose.
This declaration is made under the provision of Section 35 and 36 of the Land Acquisition Act, 1894, for information to all to whom it may concern;
And whereas the Governor of Haryana is further of the opinion that the purpose for which the land is required is of an urgent importance within the meaning of Clause (c) of sub-section (2) of Section 17 of the said Act.
Therefore, it is hereby directed under sub-section (4) of Section 17 of the said Act that the provisions of Section 5A of the Act shall not apply in regard to this acquisition.
Plans of the land may be inspected in the office of Executive Engineer, Jhajjar Drainage Division, Jhajjar.
Specification- xxx xxx'
In assailing or sustaining the aforesaid notification learned counsel for the parties conceded that despite diligent research on their part the question arising herein seems to be res-integra. No authority, one way or the other, could be cited directly covering the point and the issue has, therefore, to be examined on first principle and the language of the statute. It is, therefore, apt to read at the outset the relevant provisions of S. 17 and Sections 35 and 36
'S. 17(1) In cases of urgency, whenever the appropriate Government so directs, the Collector, though no such award has been made, may on the expiration of fifteen days from the publication of the notice mentioned in Section 9, sub-section (1), take possession of any waste or arable land needed for public purposes or for a Company. Such land shall thereupon vest absolutely in the Government free from all incumbrances.
(2) * * * (3) * * *
(4) In the case of any land to which, in the opinion of the appropriate Government, the provisions of sub-section (1) or sub-section (2) are applicable, the appropriate Government may direct that the provisions of Section 6A shall not apply, and, if it does so direct, a declaration may be made under S. 6 in respect of the land at any time after the publication of the notification under S. 4, sub-section (1).'
'S. 35(1) Subject to the provisions of Part VII of this Act, whenever it appears to the appropriate Government that the temporary occupation and use of any waste or arable land are needed for any public purpose, or for a Company, the appropriate Government may direct the Collector to procure the occupation and use of the same for such term as it shall think fit, not exceeding three years from the commencement of such occupation.
(2) The Collector shall thereupon give notice in writing to the persons interested in such land of the purpose of which the same is needed, and shall, for the occupation and use thereof for such terms as aforesaid, and for the materials, if any, to be taken therefrom, pay to them such compensation, either in a gross sum of money, or by monthly or upon in writing between him and such persons respectively.
(3) In case the Collector and the persons interested differ as to the sufficiency of the compensation or apportionment thereof, the Collector shall refer such difference to the decision of the Court.
36 (1) On payment of such compensation, or on executing such agreement, or on making a reference under S. 35, the Collector may enter upon and take possession of the land, and use or permit the use thereof in accordance with the terms of the said notice.
(2) On the expiration of the term, the Collector shall make or tender to the persons interested compensation for the damage, if any, done to the land and not provided for by the agreement, and shall restore the land to the persons interested therein :
Provided that, if the land has become permanently unfit to be used for the purpose for which it was used immediately before the commencement of such term, and if the persons interested shall so require, the appropriate Government shall proceed under this Act to acquire the land as if it was needed permanently for a public purpose or for a Company.'
4. It calls for notice that in meeting the challenge to the impugned notification, learned counsel for the respondent-State seemed to be on unsure ground and was rather half-hearted in supporting the validity of the same. We did not, therefore, have the benefit of any serious or assiduous argument on its behalf.
5. Now a reference to the scheme of the Act would show that Part II thereof which contains Sections 4 to 17 therein deals primarily with the permanent acquisition of land as the very heading of this part would indicate. This portion of the statute is further sub-divided into the preliminary investigation ; hearing of objections against such acquisition, declaration of intended acquisition and enquiry into measurements, value and claims, and award by the Collector and lastly with taking possession of the acquired land. It seems to be unnecessary to elaborate the matter because it was not disputed before us that all the provision from Sections 4 to 17 are in the context of and relevant to an acquisition which is permanent in nature and which divests the owner of the acquired land and vests it absolutely in the Government free from all encumbrances. It follows, therefore, that the whole purpose and object of Part II of the Act is to provide for the permanent acquisition of the land. In sharp contrast to Part II, Sections 35 to 37 are contained in Part VI of the Act which by its very heading pertains to the temporary occupation of the land. A reference to sub-section (1) of Section 35 makes it plain that such occupation will not exceed three years from its commencement. The remaining provisions also provide for compensation only for such temporary occupation. The three sections contained in Part VI prescribe separately the procedure to be adopted for this temporary occupation of waste and arable land and the power of the Government to enter and take possession thereof and pay compensation for the same, or restoration etc. It appears to be plain that the purpose and object of Part VI being manifestly a mere temporary occupation of land which is not to exceed three years seems to be diametrically different from a permanent acquisition envisaged in Part II of the Statute.
6. It is plain but nevertheless calls for highlighting in this context that Section 17 falls in Part II whilst Ss. 35 and 36 under which the temporary occupation of land is envisaged by the impugned notification come under Part VI. As pointed out above, the very objects and purposes of Parts II and VI of the Act are different. Again Section 17 falls in one part whilst the other two sections fall in another. Therefore on the larger scheme of the statute the provisions of S. 17 would not be relevant or attracted in the context of Sections 35 and 36 of the Act unless there are compelling reasons to the contrary. In the present case far from there being any compelling reasons, none whatsoever could be pointed out which can even show any elementary connection betwixt these provisions.
7. Again a closer analysis of S. 35 would indicate that the publication of notifications under Sections 4 and 6 are not at all attracted to the temporary occupation of land under Section 35. Sub-section (7) of S. 35 itself provides for the procedure of issuing notice in writing to the persons interested in such land and to pay them compensation as may be agreed upon in writing. Sub-section (3) provides that in case of disagreement over the quantum of such compensation or the apportionment thereof the Collector shall refer such difference to the decision of the Court. It would follow therefrom that the provisions of Section 5A regarding the hearing of objections would be wholly irrelevant in this context as well because it envisages the filing of these objections consequent upon a notification under Section 4 and within 30 days thereof. If Sections 4 and 6 are not attracted for temporary occupation of land it would follow a fortiori that no question of any objections under Section 5A can arise. On the other hand a reference to sub-section (4) of Section 17 would indicate that when the emergency provisions are invoked thereunder the Government may direct that the provisions of Section 5A shall not apply and consequently a declaration may be made under Section 6 in respect of the land notified Section 4 forthwith without waiting for any objections or their adjudication. One of the very purposes of Section 17, therefore, is that in cases of urgency the procedure of 'objections and their adjudication' may be done away with. If it is held, as it must be that for temporary occupation of land the provisions of Ss. 4, 5A and 6 are not attracted, it would follow doubly that Section 17, would be equally irrelevant to the exercise of the powers under Ss. 35 and 36.
8. Again the procedure for compensation for the temporary occupation of land is self-contained and entirely different from that for the purpose of permanent acquisition. It was conceded before us (even apart from such concession) and is otherwise plain from the statutory provisions that an award by the Collector under Section 12 and a reference to the Court against the same under Section 18 cannot be invoked in the context of a temporary occupation of land. Thereunder the method of compensation primarily one to be agreement and failing the same the Collector himself may refer such a difference for decision to the Court under Section 35(3) of the Act. It would be thus patent that the methodology of compensation and criteria therefor in case of a permanent acquisition in Part II and for the temporary occupation of land under Part VI are entirely different and distinct with the result that the provisions of either part may not be relevant to the other.
9. Lastly in this context pointed reference must be made to the proviso to sub-section (2). of S. 36 of the Act. This vests a right in the landwoner to demand the permanent acquisition of the land where its temporary user by the State has rendered it unfit for his purposes. Obviously when such a claim is made, such land which has been under temporary occupation would have to be permanently acquired either under the provisions of Part II of the Act or under Part VII thereof. The procedural provisions of either of the two parts whichever is resorted to would then have to be complied with. If resort is to be made to permanent acquisition for a public purpose under Para II these Sections 4, 5A, 6 and the other provisions including therein those pertaining to an award by the Collector for assessing compensation and the right of the landowner to claim a reference to the Court under S. 18 would come into play afresh. The proviso to sub-section (2) of Section 36 thus highlights the line of distinction betwixt a temporary occupation under Part VI against a permanent acquisition of land either for a public purpose under Part II or for a Company under Part VII which has the effect of divesting the owner of the land of his title therein.
10. In view of the overwhelming considerations noticed above it seems to follow that the provisions of Section 17 forming part of Part II of the Act are not at all attracted to the exercise of the powers under Sections 35 and 36 of the Act contained in Part VI of the same. The answer to the question posed at the outset is, therefore, rendered clearly in the negative.
11. Applying the aforesaid rule it would be plain that the impugned notification which indivisibly invokes and applies the provisions of Section 17 is unsustainable in law. The same is hereby quashed. The State Government would obviously be entitled, if so advised, to proceed afresh in accordance with the provisions of Ss. 35 and 36 of the Act.
12. This writ petition is accordingly allowed but in view of the somewhat intricate question involved the parties are left to bear their own costs.
J.V. Gupta, J.
13. I agree.
14. Petition allowed.