PATEL VIRCHANDBHAI MADABHAI v. STATE — 1990 DIGILAW 70 (GUJ)

K. J. VAIDYA, R. C. MANKAD, J. ( 1 ) PETITIONER has filed this petition challenging the decision of the Land Acquisition Officer and Deputy Collector Patan rejecting his application to withdraw notice issued under Section 9 of the Land Acquisition Act (`act for short) on the ground that the acquisition proceedings had lapsed. ( 2 ) PETITIONER was occupant of land bearing survey Nos. 864 and 867 of village Samalpati and Matarwadi in Patan Taluka of Mehsana District. Notification under Section 4 of the Act was issued on 22/04/1987 to acquire the said land for the campus of North Gujarat University. Notification under Section 6 of the Act for the acquisition of the land was issued on 12/05/1988 Notice under Section 9 (1) of the Act was issued on 24/05/1988 Petitioner challenged the acquisition of his said land by filing petition being Special Civil Application No. 2774 of 1988 in this court. Division Bench of this court while issuing notice pending admission on the said petition on 3/06/1988 granted ad interim relief in the following terms : -IN the meanwhile by way of ad interim injunction the respondents are restrained from taking possession of the land of the petitioner till 22-6-1988. Direct service. It is stated that the ad interim relief granted by this court is still in operation. ( 3 ) IT is submitted that under Section 11a of the Act the Land Acquisition Officer is required to make award under Section 11 within a period of two years from the date of the publication of the declaration under Section 6 of the Act and if no award is made within that period the entire proceedings for acquisition of the land would lapse. According to the petitioner since notification under Section 6 of the Act was published on 12/05/1988 period of two years expired on 11/05/1990 The Land Acquisition Officer was required to make award under Section 11 of the Act on or before May 11 1990 The Land Acquisition Officer however did not make award before that date and consequently the entire proceedings for acquisition of the petitioners aforesaid land have lapsed. In this view of the matter the petitioner made application dated 7/06/1990 to the Land Acquisition Officer and Deputy Collector Patan to withdraw the notice issued by him under Section 9 (1) of the Act on the ground that the entire proceedings for acquisition of the land have lapsed. The Land Acquisition Officer however by his order dated 8/06/1990 rejected this application. The petitioner has therefore approached this court by way of this petition under Article 226 of the Constitution. ( 4 ) THE contention of Mr. J. R. Nanavati learned Counsel for the petitioner is that the Land Acquisition Officer was required to make award on or before 11/05/1990 as contemplated under Section 11a of the Act and he having failed to do so the entire acquisition proceedings have lapsed. According to Mr. Nanavati the land in question is no longer to be considered as under acquisition and therefore now there is no question of making award under Section 11 of the Act or taking possession of the land under Section 16 of the Act. When attention of Mr. Nanavati was drawn to explanation to Section 11a of the Act Mr. Nanavati urged that the action or proceeding contemplated by the explanation is action or proceeding to be taken after the making of the declaration under Section 6 of the Act and before passing of the award under Section 11 of the Act. Mr. Nanavati submitted that such actions are those contemplated by Sections 7 to 11 of the Act. The question of taking possession of the land under Section 16 of the Act arises only when the award is made under Section 11. According to Mr. Nanavati possession of the land is to be taken in pursuance of the award and not in pursuance of the declaration made under Section 6 of the Act. Therefore possession which is to be taken after the making of the award under Section 16 of the Act cannot be said to be in pursuance of the declaration made under Section 6 of the Act. Mr. Nanavati submitted that under the ad interim relief granted by this Court in Special Civil Application No. 2774 of 1988 filed by the petitioner referred to above the Land Acquisition Officer was restrained from taking possession of the land of the petitioner under acquisition. Mr. Nanavati submitted that under the ad interim relief granted by this Court in Special Civil Application No. 2774 of 1988 filed by the petitioner referred to above the Land Acquisition Officer was restrained from taking possession of the land of the petitioner under acquisition. There was however no injunction restraining the Land Acquisition Officer from making the award. Under the circumstances submitted Mr. Nanavati there was no question of exclusion of any time during which the ad interim relief is in operation for the purpose of computing period of two years under Section 11a of the Act. Mr. Nanavati submitted that since no action contemplated by Sections 7 to 10 was stayed by this court explanation to Section 11a of the Act is not attracted at all. Therefore according to Mr. Nanavati entire proceedings of the acquisition of the land had lapsed under Section 11 of the Act. In support of his contention Mr. Nanavati relied on the decision of the Kerala High Court in S. Bavajan Sahib v. State A. I. R. 1988 Kerala 280. ( 5 ) WE do not agree with Mr. Nanavati. Section 11a of the Act reads as under : -11 The Collector shall make an award under Section 11 within a period of two years from the date of publication of the declaration and if no award is made within the 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 : - 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. It is clear from the said provision that the Collector is required to make an award under Section 11 within a period of two years from the date of publication of the declaration and if no award is made within that period the entire proceedings for acquisition of the land shall lapse. Explanation to Section 11a however provides for exclusion of the period during which any action or proceeding to be taken in pursuance of the declaration is stayed. Explanation to Section 11a however provides for exclusion of the period during which any action or proceeding to be taken in pursuance of the declaration is stayed. The question is what does the expression any action or proceeding to be taken in pursuance of the said declaration mean. It is pertinent to note that explanation to Section 11a does not say that only the period during which the making of the award is stayed is to be excluded. It is cast in much wider terms. On plain reading of the explanation it would mean that if any action or proceeding which is required to be taken in pursuance of the declaration is stayed the period during which such stay is in operation has to be excluded while computing the period of two years within which the award is to be made. The main provision of Section 11a provides 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 and if the Legislature wanted to confine the exclusion of only that period during which the passing of the award was stayed nothing prevented it from doing so. However instead of excluding only the period during which the passing of the award was stayed the Legislature provided for exclusion of the period during which any action or proceeding to be taken in pursuance of the declaration is stayed by an order of the court. In our opinion the expression any action or proceeding to be taken in pursuance of the said declaration is of much wider import than what is sought to be urged on behalf of the petitioner. The question which one has to ask oneself is whether any action or proceeding to be taken in pursuance of the declaration made under Section 6 of the Act is stayed. If the answer to this question is in the affirmative the period during which such action or proceeding is stayed has to be excluded for the purpose of computing the period of two years within which the Collector is required to make the award. Action of taking possession under Section 16 of the Act is undoubtedly an action in pursuance of the declaration made under Section 6 of the Act. Action of taking possession under Section 16 of the Act is undoubtedly an action in pursuance of the declaration made under Section 6 of the Act. It was urged that possession to be taken under Section 16 is in pursuance of the award and not the declaration under Section 6. This argument is devoid of any substance. Unless there is a declaration under Section 6 there cannot be any question of passing the award or taking possession under Section 16. Both the passing of the award and taking of possession under Section 16 are actions to be taken in pursuance of the declaration under Section 6. We also do not agree with the petitioners learned Counsel that actions or proceedings contemplated by explanation to Section 11a are only those actions and proceedings which are required to be taken under Sections 7 to 10 All actions and proceedings required to be taken not only under Sections 7 to 10 but also those required to be taken for passing of the award under Section 11 and taking of possession under Sections 16 and 17 of the Act are covered by the explanation to Section 11a. If any of these actions or proceedings are stayed the period during which such stay is in operation is required to be excluded under the explanation for computing period of two years within which the award is to be made. With respect we do not agree with the view taken by the Kerala High Court that the action or proceeding contemplated by explanation is any action or proceeding to be taken after the making of the declaration under Section 6 and before the passing of the award under Section 11. As already observed above these actions or proceedings are in our opinion not confined to actions or proceedings to be taken after making of the declaration under Section 6 and before the passing of the award under Section 11 At the cost of repetition we may say that making of the award under Section 11 and taking of the possession under Section 16 are actions and proceedings in pursuance of the declaration under Section 6 of the Act. ( 6 ) WE are fortified in our view by a decision of the Division Bench of this Court to which one of us (K. J. Vaidya J.) was a party in Special Civil Application No. 220 of 1989 which was disposed of on 2/03/1990 It is true that the question which arose for consideration before the Division Bench in the context of explanation to Section 11a of the Act was whether the period during which the court had stayed taking of possession under Section 11 of the act could be excluded while computing period of two years within which the award was to be made. The contention which was raised in that case was similar to the one which is raised in the instant case. It was urged there that since the period of two years had expired from the date of declaration under Section 6 of the Act the entire acquisition proceedings had lapsed. It was however urged on behalf of the acquiring authorities that since this court by way of an interim relief had issued an injunction restraining the acquiring authorities from taking possession of the land explanation to Section 11a was attracted and the period during which the interim relief was in operation was required to be excluded under the explanation for computing the period of two years prescribed for making the award. The Division Bench held that the period during which the interim relief protecting possession of the acquired land was granted by this court and continued to be in operation during the pendency of the writ petition had to be excluded while computing the period of two years for passing of the award in accordance with Section 11a of the Act. It is important to note that in that case also what was stayed was taking of the possession and not the passing of the award. Award under Section 11 could have been passed. The Division Bench however held that the period during which interim relief protecting possession of the land was in operation was required to be excluded for computing the period of two years for passing of the award. Award under Section 11 could have been passed. The Division Bench however held that the period during which interim relief protecting possession of the land was in operation was required to be excluded for computing the period of two years for passing of the award. It was however sought to be urged that that was not the case of taking possession under Section 16 of the Act after the making of the award under Section 11 but it was a case where possession was to be taken under Section 17 of the Act. According to the learned Counsel for petitioner action of taking possession under Section 17 of the Act would be in pursuance of the declaration under Section 6 of the Act and it was therefore that the Division Bench took the above view. He urged that taking of possession under Section 16 of the Act would be in pursuance of the award under Section 11 and not in pursuance of the declaration under Section 6. Therefore according to the learned Counsel the above decision would not be of any assistance in resolving the controversy raised in the present petition. In our opinion the above contention of the learned Counsel is not well founded. Whether posssession is to be taken under Section 16 or under Section 17 of the Act it is in pursuance of the declaration under Section 5 of the Act. If possession which is taken under Section 17 of the Act is in pursuance of the declaration made under Section 6 we fail to see how possession taken under Section 16 of the Act could not be said to be under the said declaration. Possession taken either under Section 16 or under Section 17 is in pursuance of the declaration under Section 6 of the Act. Therefore ad interim relief granted by this court restraining the Land Acquisition Officer from taking possession of the land would amount to staying of action or proceeding as contemplated by explanation to Section 11a of the Act. The period during which the interim relief was in force has therefore to be excluded for the purpose of computing the period of two years under Section 11 of the act. The period during which the interim relief was in force has therefore to be excluded for the purpose of computing the period of two years under Section 11 of the act. In the light of the above discussion we do not find any substance in the contention of the learned Counsel for the petitioner that the entire acquisition proceedings have lapsed and therefore the Land Acquisition Officer was required to withdraw the notice issued under Section 9 (1) of the Act. In the result this petition fails and is rejected. (ISS) Order accordingly. .