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1987 DIGILAW 158 (KER)

EAVAJAN SAHIE v. STATE OF KERALA

1987-03-27

G.VISWANATHA.IYER

body1987
Judgment :- 1. The petitioner challenges certain proceedings under the Land Acquisition Act for acquisition of his properties for the purpose of construction of a new dairy plant at Trivandrum. Ext. P1 dated 27-5-1981 is the notification issued under S.3(1) of the Kerala Land Acquisition Act 1961. From the counter affidavit of respondent No I, it is seen that this was published in the Kerala Kaumudi and Malayala Manorama dailies dated 2-6-1981. Petitioner objected to the acquisition of his land as per a statement of objection, a copy of which is Ext, P2. He followed it up with a further representation before the 4th respondent for whose purposes the land was being acquired by a representation marked Ext. P3. However, these representations did not bear fruit and the declaration under S.6 of the Land Acquisition Act was published in the Kerala Gazette dated 29th May, 1984. A true copy of this declaration is Ext.P4. Petitioner had however been making representations in the meanwhile against the proposed acquisition, and a representation made by him to Government was rejected by the order Ext.P5 dated 4-6-1984. Petitioner challenges Exts.P1, P4 and P5 in these proceedings. 2. The ground on which the petitioner challenged these proceedings in the original petition was that the notification Ext.P under S.3(1) was dated 27-5-1981 but the declaration under S 6 of the Kerala Land Acquisition Act dated 28-5-1984 was published in the Kerala Gazette dated 29-5-1984. It was therefore stated that the declaration under S.6 was beyond the period of three years prescribed by the proviso to S.6(1) of the Kerala Land Acquisition Act and therefore the entire proceedings had ceased to be operative. This contention raised in the original petition has no substance, having regard to the fact that the notification under S.3 was actually published in the dailies only on 2-6-1981. The proviso to S.6(1) requires only that the declaration under S.6 should not be made after the expiry of three years from the date of publication of the notification under S.3(1). Since the notification under S.3(1) was published on 2-6-1981, the declaration under S.6 could be published on or before 2-6-1984. Therefore the declaration published in the Kerala Gazette dated 29-5-1984 is within the time prescribed by the proviso to S.6(1) of the Kerala Land Acquisition Act. 3. Since the notification under S.3(1) was published on 2-6-1981, the declaration under S.6 could be published on or before 2-6-1984. Therefore the declaration published in the Kerala Gazette dated 29-5-1984 is within the time prescribed by the proviso to S.6(1) of the Kerala Land Acquisition Act. 3. Though this point was not therefore available to the petitioner, be raised another new point at the time of bearing of the original petition. It was that no award has yet been passed in the matter and therefore the entire proceedings for the acquisition of the land have lapsed as under S.11(A) of the Central Laud Acquisition Act, 1984, which is now applicable to the State. 4. The Central Land Acquisition Act was extended to the State of Kerala by the Central Land Acquisition (Amendment) Act, 68 of 1984 with effect from 26-9-1984. Under S.30 of the Amending Act, the provisions of the Central Act apply in relation to all proceedings for acquisition initiated earlier, and pending as on 30-4-1982. S.11A of the Central Act provides that if no award is made within & period of two years from the date of publication of the declaration, the entire proceedings, for the acquisition of the land shall lapse. The proviso to the section states that where the said declaration had 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, namely, 26-9-1984. The award in this case should therefore have been passed on or before 26-9-1986. Counsel for the 4th respondent as well as the Government Pleader appearing for respondents 1 to 3 stated that no award has so far been passed in this case. 5. Normally, therefore the entire proceedings of the petitioner's land for acquisition should lapse. 6. However, counsel for the 4th respondent attempts an argument based on the explanation to S.11A. He states that there was a petition CMP No 26885 of 1985 filed in this court along with the original petition for stay of all proceedings to take possession of the petitioner's land pursuant to Exts.P1 and P4 pending disposal of this original petition and that an interim order of stay bad been passed on 27-9-1985. He states that there was a petition CMP No 26885 of 1985 filed in this court along with the original petition for stay of all proceedings to take possession of the petitioner's land pursuant to Exts.P1 and P4 pending disposal of this original petition and that an interim order of stay bad been passed on 27-9-1985. Counsel submits that in view of this stay, the explanation to S.11A must operate to exclude the period subsequent to 27-9-1985 till date in the computation of the period of two years between 26-9-1984 and 26-9-1986. 7. The explanation states that in computing the period of two years aforesaid, the period during which any action or proceeding to be taken in pursuance of the declaration is stayed by an order of the court shall be excluded. The period of two years is prescribed for the passing of award under S.11. The action or proceeding contemplated by the explanation is therefore any action or proceeding to be taken after the making of the declaration under S.6 and before the passing of the award under S. 11. Such actions are those contemplated by S.7 to 10. The question of taking possession of the land arises only when the award is passed, under S.16 of the Act, except in cases of urgency covered by S.17. This is not a case in respect of which S.17 has been invoked. Therefore the position is that unless there was a stay of the proceedings contemplated by S.7 to 10 or of further proceedings pursuant to the declaration under S.6, the explanation will not operate so as to extend the period of two years prescribed by S.11A. The order from this court was only against proceedings for taking possession of the petitioners land, which is only a post award operation. There was therefore nothing standing in the way of the Land Acquisition Officer from taking further proceedings pursuant to the declaration under S.6 and passed the award under S.11 within two years. The explanation to S.11A cannot therefore avail the 4th respondent to get extension of the period of two years prescribed by S.11A. 8. Counsel for the respondents could not point out any other reason to get over the failure to pass the award within the period of two years or the consequent applicability of S HA. The explanation to S.11A cannot therefore avail the 4th respondent to get extension of the period of two years prescribed by S.11A. 8. Counsel for the respondents could not point out any other reason to get over the failure to pass the award within the period of two years or the consequent applicability of S HA. In the absence of an award passed on or before 26-9-1986, the entire proceedings for acquisition of the petitioner's land have lapsed. 9. The Original Petition is therefore allowed for this reason with a declaration that all the proceedings initiated under the notification Ext.P and the declaration Ext.P4 for acquisition of the petitioner's land have lapsed under S.11A of the (Central) Land Acquisition Act, 1894. 10. Counsel for the 4th respondent pointed out that various development schemes initiated by them have been stalled because of not obtaining the petitioner's land. It is up to the 4th respondent to move the Government for fresh proceedings for acquisition if so desired. The petitioner had raised a point of discrimination as well. I am not however adjudicating thereon in the view I have taken, and leave that question open. The parties will bear their respective costs. Issue carbon copy of this judgment on usual terms.