Full Judgment Text
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CASE NO.:
Appeal (civil) 2013-2015 of 1999
PETITIONER:
Smt. Bailamma @ Doddabailamma (Dead) and others
RESPONDENT:
Poornaprajna House Building Co-operative Society and others
DATE OF JUDGMENT: 31/01/2006
BENCH:
B.P. Singh & Arun Kumar
JUDGMENT:
J U D G M E N T
WITH
Civil Appeal Nos. 2016-2023 of 1999
Sri M. Kondandaraju and others \005 Appellants
Versus
The State of Karnataka and others \005Respondents
AND
Civil Appeal Nos. 2073-2077 of 2000
Smt. Muthamma etc. etc. \005 Appellants
Versus
State of Karnataka and others \005Respondents
B.P. SINGH, J.
These appeals by special leave are directed against the
Judgment and Order of the High Court of Karnataka at Bangalore
dated February 12, 1998 in Writ Appeal No.2079 of 1993, Writ
Appeal Nos.2080-2081 of 1993 and Writ Appeal Nos.2090-94 of
1993. Civil Appeal Nos.2073-2077of 2000 are directed against the
judgment and order of the High Court dated September 21, 1999
dismissing the Writ Appeals following the judgment of the High
Court in the earlier batch of Writ Appeals. The High Court by its
impugned judgment and order upheld the award made by the
Collector holding that the requirements of Section 11 and 11A of the
Land Acquisition Act, 1894 (hereinafter referred to as ’The Act’)
were met if the award was made and signed by the Collector and
approved by the Government within a period of two years from the
date of last publication of declaration under Section 6 of the Act. In
the instant case the Collector signed his award after an enquiry as
contemplated by the Act on March 13, 1990 and sent the same on the
same date for the approval of the Government. The award was
approved by the Government on November 16, 1992, but after
excluding the period during which an order of stay operated against
the Government from acting pursuant to the declaration made under
Section 6 of the Act, the same was deemed to be approved within the
period of two years from the date of last publication of declaration
under Section 6 of the Act. The contention urged on behalf of the
appellants herein, that after the approval of the Government the
Collector should have declared the award was repelled, since it was
found in the facts of the case that the award had already been signed
by the Collector and sent to the Government for approval. To
appreciate the contentions urged before us it is necessary to narrate
the relevant facts of the case.
A Notification under Section 4 of the Land Acquisition Act
dated August 11, 1987 was published in the Official Gazette on
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August 13, 1987. Objections received from the owners of the lands
were considered by the Collector and rejected. Thereafter, a
declaration under Section 6 of the Act dated June 30, 1988 was
published in the Official Gazette on July 1, 1988. The last date of
publication of the aforesaid declaration in accordance with Section 6
of the Act was November 5, 1988. In normal course, therefore, the
award should have been made before November 5, 1990. However,
the Collector made his award on March 13, 1990 and after signing the
same sent the award to the Government for its approval.
It appears that the Respondents- Society was apprehensive that
the Government may not approve the award within the statutory
period fixed by the Act and, therefore, it filed a writ petition on June
27, 1990 for issuance of a Writ of Mandamus to the Government to
approve the award. In the said writ petition an interim order was
made on June 29, 1990 staying the operation of the declaration dated
June 30, 1988 for a period of two weeks from the date of the order.
Subsequently, the stay was extended till further orders. On February
7, 1991, the order of stay was modified only to the extent that it was
clarified that the order of stay shall not prevent the Government from
granting approval to the award, submitted to it by the Collector. The
order of stay, however, continued to operate subject to the
clarification given, and other steps could not be taken till the order of
stay finally stood vacated on November 18, 1992. It is only thereafter
that notice of the award could be given to the persons interested. On
November 16, 1992 the Government granted approval to the award
submitted by the Collector. On November 18, 1992 the Writ Petition
filed by the Respondents \026 Society was withdrawn, and thereafter the
order of stay finally stood vacated.
From the facts stated above, it would appear that an order of
stay operated against the Government from taking any further steps
pursuant to the declaration dated June 30, 1988 which included grant
of approval to the award of the Collector and its communication to the
persons interested and other steps to be taken under the Act, till
November 18, 1992. It is the contention of the Respondents that in
computing the period of two years for making the award in
accordance with Section 11A of the Act the period during which the
stay order operated must be excluded. The High Court has upheld this
contention and held that the award was approved within the period
prescribed by Section 11A of the Act.
The award was challenged by the appellants herein contending
that there was nothing on record to indicate that after approval was
granted by the Government the Collector signed the award. The
contention was that Section 11 read with Section 11A of the Act
provided that after the award is approved by the Government, the
Collector can make an award, meaning thereby, that after the award
submitted by the Collector is approved by the Government, the
Collector must formally sign the award as approved and inform the
parties concerned. If he fails to do so within the period prescribed by
Section 11A of the Act the entire proceeding for the acquisition must
lapse. The learned single Judge who heard the writ petition upheld
the contention of the respondents and quashed the acquisition
proceedings. Appeals were preferred by the State of Karnataka and
other interested parties to the High Court which were initially placed
for disposal before a division bench of the High Court which referred
it to a larger bench since it appeared to the learned judges that an
earlier division bench judgment of the High Court in Writ Petition
No.4244 of 1989, which took the view that Section 11A will be
satisfied if approval is granted by the Government within the specified
period to the award made by the Collector, required re-consideration.
That is how the matter came up for hearing before a bench of three
learned judges of the High Court.
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The scheme of the Land Acquisition Act, 1894 is that if a
declaration is published under Section 6 of the Act, the Collector is to
take an order for acquisition of the lands notified. For this purpose,
the Collector is required to demarcate the lands proposed to be
acquired, get the same measured and a plan to be prepared as required
to be done by Sections 7 and 8 of the Act. Under Section 9 the
Collector is required to get published a public notice stating that the
Government intends to take possession of the land and that claims to
compensation for all interested in such land may be made to him. The
notice must enumerate the particulars mentioned in Sub-Section (2) of
Section 9 of the Act. The said notice must also be served on the
persons interested as provided in Sub-Sections (3) and (4) of Section
9. After notices have been issued under Section 9 of the Act, the
Collector proceeds to enquire into all the matters specified in Section
11 of the Act. Sections 11, 11A and 12 of the Act as amended by
Land Acquisition (Amendment) Act 1984 are crucial for deciding the
questions involved in these appeals. They provide as follows :
"11. Enquiry and award by Collector \026 (1) On the
day so fixed, or any other day to which the enquiry
has been adjourned, the Collector shall proceed to
enquire into the objections (if any) which any person
interested has stated pursuant to a notice given under
section 9 to the measurements made under section 8,
and into the value of the land and at the date of the
publication of the notification under section 4, sub-
section (1), and into the respective interests of the
persons claiming the compensation, and shall make an
award under his hand of \026
(i) the true area of the land;
(ii) the compensation which in his opinion
should be allowed for the land; and
(iii) the apportionment of the said
compensation among all the persons
known or believed to be interested in the
land, of whom, or of whose claims, he
has information, whether or not they
have respectively appeared before him;
[Provided that no award shall be made by the
Collector under this sub-section without the previous
approval of the appropriate Government or of such
officer as the appropriate Government may authorize
in this behalf;
Provided further that it shall be competent for
the Appropriate Government to direct that the
Collector may make such award without such
approval in such class of cases as the Appropriate
Government may specify in this behalf];
[(2) Notwithstanding anything contained in
sub-section (1), if at any stage of the proceedings, the
Collector is satisfied that all the persons interested in
the land who appeared before him have agreed in
writing on the matters to be included in the award of
the Collector in the form prescribed by rules made by
the appropriate Government, he may, without making
further enquiry, make an award according to the terms
of such agreement.
(3) The determination of compensation for any
land under sub-section (2) shall not, in anyway affect
the determination of compensation in respect of other
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lands in the same locality or elsewhere in accordance
with the other provisions of this Act.
(4) Notwithstanding anything contained in the
Registration Act, 1908 (16 of 1908), no agreement
made under sub-section (2) shall be liable to
registration under that Act.
11A. Period within which an award shall be made.
- (1) The Collector shall make an award under section
11 within a period of two years from the date of the
publication of the declaration and if no award is made
within that period, the entire proceedings for the
acquisition of the land shall lapse:
Provided that in a case where the said
declaration has been published before the
commencement of the Land Acquisition
(Amendment) Act, 1984, the award shall be made
within a period of two years from such
commencement.
Explanation \026 In computing the period of two
years referred to in this section the period during
which any action or proceeding to be taken in
pursuance of the said declaration is stayed by an order
of a Court shall be excluded].
12. Award of Collector when to be final - (1) Such
award shall be filed in the Collector’s office and shall,
except as hereinafter provided, be final and conclusive
evidence, as between the Collector and the persons
interested, whether they have respectively appeared
before the Collector or not, of the true area and value
of the land, and apportionment of the compensation
among the persons interested.
(2) The Collector shall give immediate notice
of his award to such of the persons interested as are
not present personally or by their representatives
when the award is made".
Section 11 envisages that an enquiry may not be concluded on
the very first day and, therefore, authorizes the Collector to adjourn
the considerations of objections to any day fixed in the notice.
However, after considering the objections he is obliged to make an
award under his hand regarding (i) the true area of the land; (ii) the
compensation which in his opinion should be allowed and (iii) the
apportionment of the compensation amongst the persons interested.
The first proviso to Section 11 provides that an award shall not
be made by the Collector without the previous approval of the
appropriate Government or of such officer as the appropriate
Government may authorize. Thus before an award can be said to have
been made it is mandatory that it must be approved by the
Government or the officer authorized in this behalf.
Section 11A provides the period within which an award shall be
made. It prescribes a period of two years from the date of publication
of declaration as the period within which an award must be made. If
no award is made within that period the entire proceedings for the
acquisition of the land shall lapse. The explanation to Section 11A
clarifies that in computing the period of two years, the period during
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which action or proceedings to be taken in pursuance of the said
declaration is stayed by an order of a Court shall be excluded.
Before we consider the main submission urged on behalf of the
appellants, we shall consider the submission urged by them that in the
instant case, the period during which the stay granted by the High
Court operated can not be excluded because the order of stay had been
obtained by the Society itself and, therefore, it can not take advantage
of the stay granted by the High Court. The submission must be
rejected. The order of stay passed on 29.6.90 by the High Court was
in the following terms :-
"Operation of the declaration dated 30.6.1988 issued
by the respondent No.1 in No. RD 182 AQB 84
(Annexure-A to the W.P.) be and the same is hereby
stayed, for a period of two weeks from 29.6.1990".
As noticed earlier, the operation of the order of stay was
continued until further orders and was ultimately modified by an order
of February 7, 1991 which is as follows :-
"Interim order of stay granted by this Court on
29.6.90 and continued by order dated 10.7.1990 shall
not prevent the Government in giving approval to the
draft Award which is said to be pending
considerations before the Government".
A mere reading of the order of stay of June 29, 1990 makes it
abundantly clear that the operation of the declaration made under
Section 6 of the Act was itself stayed, that is to say, as if no
declaration has been made under Section 6 of the Act. Such being the
position no steps required to be taken under the Act after publication
of the declaration under Section 6 could be taken either by the
Collector or by the Government. The Government was, therefore,
prevented from approving the award submitted to it by the collector.
Thus, it was on account of the order of stay passed by the High Court
that the Government was prevented from granting approval earlier
than February 7, 1991, when it was clarified that the order will not
prevent the Government only from giving approval to the draft award
pending consideration before it. Once, the order of stay was so
modified, the Government granted approval on November 16, 1992.
It was not disputed before us that if the period from June 6, 1990 to
November 18, 1992 is excluded from the time taken in making the
award, the award must be held to have been made within two years
from the day of last publication of the declaration under Section 6 of
the Act.
The submission that the stay order was obtained by the Society
itself is of no consequence, having regard to the language of
explanation to Section 11A of the Act. The exclusion of the period
during which the order of stay operated is not dependant upon the
party obtaining such an order. An order passed by the Court must be
obeyed by all concerned. In the instant case the Society moved the
High Court and obtained an order of stay. In effect, the order
operated in such a manner that the Government was prevented from
granting approval to the award even if it so desired, nor could it refuse
approval during the period the order of stay operated. Therefore,
explanation to Section 11A came into operation and in accordance
therewith the period during which the order of stay operated must be
excluded from the total time taken to make the award.
Reliance was placed by the appellants on the observations made
by this Court in Yusufbhai Noormohmed Nendoliya Vs. State of
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Gujarat & Another (1991) 4 SCC 531. In our view the aforesaid
decision in fact supports the case of the respondents. In the aforesaid
judgment it was held:-
"The said Explanation is in the widest possible terms
and, in our opinion, there is no warrant for limiting
the action or proceedings referred to in the
Explanation to actions or proceedings preceding the
making of the award under Section 11 of the said
Act".
That was no doubt a case where an order of injunction was obtained
by the land-holder restraining land acquisition authorities from taking
possession of the land. It was, in that context, that this Court
observed that to get the benefit of the said provision the land-holder
who seeks the benefit must not have obtained any order from Court
restraining any action or proceedings in pursuance of declaration
under Section 6 of the Act. It is, therefore, not possible to accept the
submission urged on behalf of the appellants that Section 11A of the
Act must be read in a narrow sense so as to apply to only those cases
where the land-owner himself obtained an order of stay or injunction.
We are not prepared to add words in the explanation by reading into it
a provision that gives to the explanation a narrower operation than
what was intended for it by the legislature, so as to apply only to cases
where an order of injunction is obtained by the land-owner and not by
anyone else.
We may usefully refer to the observations of this Court in
Government of T.N. and Another vs. Vasantha Bai, (1995 (supp) 2
SCC 423). This Court observed :-
"Parliament enacted Section 11-A with a view to prevent
inordinate delay being made by the Land Acquisition
Officer in making the award. The price to be paid for the
land acquired under compulsory acquisition is the
prevailing price as on the date of publication of Section
4(1) notification. The delay in making the award
deprives the owner of the enjoyment of his property or to
deal with the land whose possession has already been
taken, and delay in making the award, would subject the
owner of the land to untold hardship. With a view to
relieve hardship to the owner or person interested in the
land and to remedy the lapses on the part of the Land
Acquisition Officer in making the award, Section 11-A
was enacted which enjoins making of award
expeditiously. So, outer limit of two years from the last
of the dates of publications, envisaged in Section 6 of the
Act was fixed. If he fails to do so, all the acquisition
proceedings under the Act would stand lapsed and the
owner of the land or person interested in the land is made
free to deal with the land as an unencumbered land.
Cognizant to the fact that the acquisition proceedings are
questioned in a court of law, Parliament enacted
Explanation to Section 11-A declaring that the period
during which action or proceedings taken in pursuance of
the declaration under Section 6 is stayed by an order of
the court, the same "shall be excluded"."
This Court emphasized the fact that Section 11-A was enacted
with a view to prevent inordinate delay being made by Land
Acquisition Officer in making the award which deprived owners of
the enjoyment of the property or to deal with the land whose
possession has already been taken Delay in making the award
subjected the owner of the land to untold hardship. The objects and
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reasons for introducing Section 11-A into the Act were that "the
pendency of acquisition proceedings for long periods often causes
hardship to the affected parties and renders unrealistic the scale of
compensation offered to them" and "it is proposed to provide for a
period of two years from the date of publication of the declaration
under Section 6 of the Act within which the Collector should make his
award under the Act". The emphasis, therefore, was on the Collector
making his award within the period prescribed. However, the
legislature was also aware of the reality of the situation and was not
oblivious of the fact that in many cases acquisition proceedings were
stalled by stay orders obtained from courts of law by interested
parties. It, therefore, became imperative that in computing the period
of two years, the period during which an order of stay operated, which
prevented the authorities from taking any action or proceeding in
pursuance of the declaration, must be excluded. If such a provision
was not made, an acquisition proceeding could be easily defeated by
obtaining an order of stay and prolonging the litigation thereafter.
Explanation to Section 11-A was meant to deal with situations of this
kind. The explanation is in the widest possible terms which do not
limit its operation to cases where an order of stay is obtained by a
land-owner alone. One can conceive of cases where apart from land-
owners others may be interested in stalling the land acquisition
proceeding. It is no doubt true that in most of the reported decisions
the party that obtained the stay order happened to be the owner of the
land acquired. But that will not lead us to the conclusion that the
explanation applied only to cases where stay had been obtained by the
owners of the land. There may be others who may be interested in
obtaining an order of stay being aggrieved by the acquisition
proceeding. It may be that on account of development of that area
some persons in the vicinity may be adversely affected, or it may be
for any other reason that persons in the locality are adversely affected
by the project for which acquisition is being made. One can imagine
many instances in which a person other than the owner may be
interested in defeating the acquisition proceeding. Once an order of
stay is obtained and the Government and the Collector are prevented
from taking any further action pursuant to the declaration, they cannot
be faulted for the delay, and therefore, the period during which the
order of stay operates must be excluded. In a sense, operation of the
order of stay provides a justification for the delay in taking further
steps in the acquisition proceeding for which the authorities are not to
blame.
We, therefore, agree with the High Court that after excluding
the period during which the order of stay operated, the award was
made within the period prescribed by Section 11A of the Act.
This takes us to the main point urged in the appeals by the
appellants. Mr. T.L.V. Iyer, senior advocate, submitted that no award
was made in accordance with Section 11 of the Act. The award sent
to the Government for approval was at best a draft award. After the
Government granted approval no further action was taken by the
Collector to make an award. It is his contention that after the award
was approved by the Government the Collector should have signed
the award and thereafter communicated his award to the parties. This
was not done and, therefore, in the eye of law no award was made by
the Collector. He further submitted that no consent award was made
in accordance with sub-section (2) of Section 11. Moreover, before
the Full Bench it was not even argued by the respondents that a
consent award under sub-section (2) of Section 11 was made by the
Collector. In any event even the question of making an award by
consent did not arise, since no award whatsoever was made within the
period prescribed by law, since the approved award remained a draft
award.
Mr. Ganguli appearing for some of the appellants submitted
that the notice issued under Section 11 of the Act was not relevant.
What was relevant was the date of the signing of the award. The
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award attained finality under Section 12, if it was filed in the
Collector’s office, regardless of the fact whether the persons
interested appeared before the Collector or not. According to him,
the award referred to in Section 12 is the award made under Section
11. Therefore, unless an award is made under Section 11 the stage
of filing of the award in the Collector’s office under Section 12 is not
reached and, therefore, unless the award is first made in accordance
with Section 11, no award can be filed in the Collector’s office under
Section 12.
Shri Nageshwar Rao, senior advocate appearing on behalf of
some of the appellants, adopted the arguments advanced on behalf of
other appellants and in particular submitted that there was non-
compliance with the legal requirements for making an award by
consent. He also took us through the material on record to submit that
no consent award was made, and in any event the legal requirements
were not fulfilled to bring into existence a consent award.
On the other hand, Shri P.P. Rao, senior advocate appearing on
behalf of some of the respondents, contented that under Section 11
the Collector has to make an award but with the prior approval of the
State Government. The award made by the Collector is an offer to the
persons concerned which binds the Collector but not the persons
concerned who may challenge the findings of the Collector in a
proceeding under Section 18 or Section 30 of the Act. Adverting to
the facts of the case, he submitted that the award sent to the
Government for approval was a signed award. Once the said award
was approved as it was, that is without any alteration, the award
came into effect and the moment it was filed in the office of the
Collector under Section 12 of the Act, it became final subject to the
objections that may be raised by the persons concerned in proceedings
under the Act. According to him, the award was filed in the office of
the Collector between 16th November, 1992 and 20th November, 1992
and a notice was given to the parties concerned regarding making of
the award on November 20, 1992. Thus, an award was made in
accordance with law. There was no need for the Collector to sign the
award twice. It was enough if the award was made by the Collector
and approved by the Government within the statutory period of two
years from the date of last declaration published under Section 6 of
the Act. In the alternative, he submitted that in respect of 18 acres and
1 guntha of land a consent award was made and the dispute related
only to 2 acres and 10 gunthas belonging to Bailamma (Petitioner) in
Civil Appeal No. 2013 of 1999.
At this stage, we may observe that having regard to the
controversy raised before us, we required the State to produce before
us the original file. Shri Sanjay Hegde, counsel for the State,
produced before us the original file, from which it appears that after
the award was signed by the Collector on March 13, 1990, the Society
had moved the High Court by way of Writ Petition for a mandamus
directing the State Government to approve the award. However, after
the order of the High Court dated 7th February, 1991, modifying the
earlier interim order of stay and permitting the Government to take a
decision with regard to the approval of the award, the Divisional
Commissioner sent the award to the Government for approval on
10.6.1991. The Government granted its approval on 16.11.1992 and
the record was returned to the office of the Collector. On November
20, 1992, notice under Section 12(2) was issued after the file was
received by the Deputy Commissioner. He also pointed out the
agreements in Form ’D’ signed by the person authorized under Article
229 of the Constitution of India, namely, the Special Land Acquisition
Officer.
In this factual background, we now proceed to consider the
submissions urged before us.
Section 11 of the act requires the Collector to make an enquiry
into the objections, if any, made by the persons interested pursuant to
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the notices given under Sections 8 and 9 of the Act as to the value of
the land on the date of publication of the notification under Section 4.
He is also required to make an enquiry into the respective interest of
the persons claiming the compensation. After considering the
objections raised by the persons interested he is required to make an
award under his hand which should contain his findings on the matters
enumerated in (i), (ii) and (iii) of sub-section (1) of Section 11. The
proviso to Section 11, however, mandates that the Collector shall not
make an award under this sub-section without previous approval of
the appropriate Government.
The Collector is required to hear the persons interested and
enquire into the objections, if any, raised by them on the points which
he is required to determine. It is possible to conceive that he may hear
the objections on several dates having regard to the number of
objectors and the nature of the dispute that may arise, where-after he
must make up his mind and prepare his award. It is not expected of
him that he should prepare his award in presence of the persons
interested, since the Collector may take some time to make up his
mind on the matters he is required to incorporate in his award.
Thereafter, he is required to send his award to the Government for
approval. The approval of the award may take sometime, and it is not
known to the Collector as to when the Government will approve the
award. However, after the award is approved, if there is no alteration
in the award, he is required to notify the parties concerned about the
award. He may do so by fixing a date on which the parties may be
required to appear for pronouncement of the award, or he may inform
them by giving them written notice of the award. This is because an
award is in the nature of an offer and must be communicated to the
persons to whom the offer is made. There is nothing in Section 11
which expressly requires the Collector to announce his award in the
presence of the persons interested, though there is nothing which
prevents him from declaring the award on a date fixed by him for the
purpose. However, having regard to the provisions of Section 12(2)
of the Act, he must give immediate notice to such of the persons
interested as are not present personally or by their representative when
the award is made. Thus viewed, there can be no doubt that after the
award is approved the same becomes an offer to be made to the
persons interested, and this can be done by either giving notice to the
persons interested of the date on which he may orally pronounce the
award, or by giving written notice of the award to the persons
interested. The question of limitation for filing a reference under
Section 18 or Section 30 of the Act has to be determined by reference
to the date on which the award was either pronounced before the
parties who were present, or the date of the receipt of notice of the
award by those not present. The mere fact that the Collector did not
pronounce the award after notice in the presence of the parties
interested will not invalidate the award, though it may have a bearing
on the question of limitation in the matter of seeking a reference under
Section 18 or 30 of the Act. The award which has already been
signed by the Collector becomes an award as soon as it is approved by
the Government without any alteration. At best the appellants can
contend that it becomes an award when notice is given to the parties
interested. Viewed from any angle, having regard to the fact that
there is no dispute that the Government granted its approval on
16.11.1992 and notices were issued under Section 12(2) of the Act on
November 20, 1992, it must be held that the award was made within
the period prescribed by Section 11A of the Act. There was really no
necessity for the Collector to sign the award again, nor does Section
11 require that for the purpose of pronouncing the award notice
should be given by the Collector to the persons interested. Section 11
requires notice to be given for the purpose of hearing objections.
After the objections are heard, the Collector has to apply his mind to
all the relevant facts and circumstances and prepare an award
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whereafter he is required to send it to the Government for approval.
There is nothing in Section 11 which requires him to give notice to the
persons interested of the date for pronouncement of the award,
though, as we have observed earlier, there is also nothing which
prevents him from giving such notice. We agree with the finding of
the High Court that once it is shown that the award was made and
signed and approved by the Government within the period prescribed
by Section 11A of the Act an award is validly made. In the instant
case, we have satisfied ourselves that the award was received by the
Deputy Commissioner after approval, and notice was thereafter issued
under Section 12(2) of the Act on November 20, 1992.
In view of our finding it is not necessary for us to consider the
submission urged on behalf of the respondents that the award made by
the Collector was a consent award at least in respect of 18 acres and 1
guntha of land.
We find no merit in these appeals and the same are accordingly
dismissed. In the facts and circumstances of the case, there shall be
no order as to costs.