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2000 DIGILAW 147 (MAD)

U. Prashanthi v. State of Tamil Nadu

2000-02-04

K.G.BALAKRISHNAN, K.GOVINDARAJAN

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Judgment :- K.Govindarajan, J. 1. The appellant’s, lands were sought to be acquired for the formation of Maduravoyal Neighbourhood Scheme sponsored by the Tamil Nadu Housing Board bearing survey Nos.11/2B measuring 0.94 cents, in 12/1a measuring 0.36 cents in 12/1b measuring 0.37 cents and 13/2 measuring 1.62 acres in total measuring 3.29 acres in Ambattur Taluk. The notification under section 4(1) of the Land Acquisition Act (hereinafter called ‘The Act’) in G.O.Ms. No. 857 Housing and Urban Development dated 26.8.1985 was published in the Government Gazette on 25.9.1985. The declaration under Section 6 of the Act was made in G.O.Ms. No. 1525, Housing and Urban Development, dated 28.9.1986. As the major portion of the lands are not required for the said project, the Government in G.O.Ms. No. 31222/A2/87 2, Housing & Urban Development, dated 7.12.1987 withdrew the above said Notification with respect to 2.37 acres leaving 0.92 cents in S. No. 13/2 alone for the above said Housing Scheme. The said Notification was published on 30.12.1987. 2. In the meanwhile, the-appellant/petitioner filed writ petition in W.P. No. 8502 of 1988 to set aside the abovesaid two Notifications dated 26.8.1985 and 28.9.1986 and obtained an order of stay on 1, 8.1988. Ultimately the said writ petition was dismissed on 26.3.1998, It is relevant to mention here that though the Government had withdrawn the earlier Notifications dated 26.8.1985 and 28.9.1986 with respect to 2.37 acres of land, the appellant had challenged both the Notifications as if the entire extent of 3.29 acres of land was sought to be acquired. 3. Having felt that the said lands are necessary for forming bye-pass road, the Government issued Notification under Section 4 (1) of the Act in G.O.Ms. No. 14 Transport Department dated 6.1.1986 with respect to 2.37 acres of land in survey Nos.11/2B (0.94 cents), 12/1B (0. 37 cents) and 13/2 (0.70 cents Thereafter, the Government made declaration under Section 6 of the Act in G.O.Ms. No. 322, Transport, dated 13.2.1987. Thereafter the Government issued notice under Section 9 (3) of the-Act. No. 14 Transport Department dated 6.1.1986 with respect to 2.37 acres of land in survey Nos.11/2B (0.94 cents), 12/1B (0. 37 cents) and 13/2 (0.70 cents Thereafter, the Government made declaration under Section 6 of the Act in G.O.Ms. No. 322, Transport, dated 13.2.1987. Thereafter the Government issued notice under Section 9 (3) of the-Act. At this stage the appellant filed writ petition, in W.P. No. 10654 of 1998 with respect to the land measuring 0.92 cents in Survey No. 13/2, and in, W.P.Nos,10655 of 1998 and 15009 of 1999 challenging the said notices on the ground either award was not passed or the award was passed two years later from the date of declaration made under Section 6 of the Act. 4. The respondents resisted the said contentions of the appellant stating that with respect to the land sought to be acquired for the purpose of formation of bye-pass road the award was passed on 9.10.1998 and possession was taken on 7.1.2000. According to them, as the appellant/petitioner got the stay order in the earlier writ petition in W.P, No. 8502 of 1988 with respect to the same land, though in the different acquisition proceeding, the respondents could not pass the award within the stipulated period of two years from the date of declaration made under Section 6 of the Act. 5. The above said facts are not in dispute. The appellant has, not. challenged any Notifications issued under the Act. The main attack of the appellant on the said proceedings is that with respect to the o land bearing Survey No, 13/2, measuring 0.92 cents, no award is passed till date and in view of Section 11-A of the Act, the award cannot be passed hereafter and thereby the entire proceedings have to be held invalid with respect to the said land. The learned Government Pleader, on instructions, has submitted that so far, no award is passed. Though the award should have been passed on or before 15.2.1999 no award is passed. So, in view of Section 1 1-A of the Act, the entire proceedings relating to the acquisition of the land measuring 0.92 cents in S. No. 13/2 shall lapse, as the award has not been passed within two years from the date of publication of the said declaration, even after taking into consideration of the period during which the proceedings are stayed by the learned Judge. Hence the acquisition proceedings insofar as the said 0.92 cents are concerned, in Survey No. 13/2, have to be set aside, as the entire proceedings would lapse. Accordingly, the order passed in W.P, No. 10654 of 1998 is hereby set aside and the Writ Appeal No. 49 of 2000 is allowed. 6. With respect to the lands measuring 2.37 acres acquired for the purpose of formation of bye-pass road the submission of the learned counsel appearing for the appellant is that the award was passed on 9.10.1998 which is beyond the period of two years from the date of declaration made under Section 6 of the Act and so now the entire proceedings are liable to be set aside. As submitted by the learned Additional Solicitor General appearing for the second respondent and also as held by the learned Judge, the land in question was the subject matter of acquisition at the instance of the Tamil Nadu Housing Board, which was under challenge in W.P. No. 8502 of 1988 and the appellant got stay on 1.8.1988, That writ petition was dismissed only on 26.3.1998 and so the award passed on 9.10.1998 is well within the scope of Explanation to Section 11-A of the Act. 7. The learned counsel appearing for the appellant has submitted that the respondents cannot rely on the Explanation to Section 11-A of the Act to save the award as they have not taken any proceedings to pass award pursuant to the said declaration made on 13.2.1987 within two years, and the writ petition filed was only with reference to the Notification under Section 4 (1) of the Act, dated 26.8.1985, and the said declaration was made on 28.9.1986, which are nothing to do with the award now under challenge. 8. The question is whether the stay granted in the said proceedings taken by the petitioner can be taken advantage of, to sustain the award passed by the Government pursuant to the declaration made in G.O.Ms. No. 322, Transport, dated 13.2.1987. 9. It is not in dispute that the appellant has not challenged the notification issued under Section 4(1) of the Act, dated 22.1.1986 and the said declaration made by the Government Order dated 13.2.1987 with respect to the land measuring 2.37 acres of land acquired for the purpose of formation of the bye-pass road. No. 322, Transport, dated 13.2.1987. 9. It is not in dispute that the appellant has not challenged the notification issued under Section 4(1) of the Act, dated 22.1.1986 and the said declaration made by the Government Order dated 13.2.1987 with respect to the land measuring 2.37 acres of land acquired for the purpose of formation of the bye-pass road. Notwithstanding the withdrawal of the land acquisition Proceedings with respect to 2.37 acres of land which was sought to be acquired under the said Notification dated 26.8.1995, the appellant/petitioner filed writ petition in W.P. No. 8502 of 1988 and obtained stay on 1.8.1988 and the said writ petition was dismissed on 26.3.1998. The learned Judge on the basis of Explanation to Section 11-A of the Act sustained the award on the ground that the proceedings are stayed with respect to the same land. When the Court granted stay of further proceedings, the authorities are not expected to proceed with any proceedings under the provisions of the Land Acquisition Act. So we cannot take any exception to the reasoning’s given by the learned Judge. 10. It is also not in dispute that possession has been taken on 7,1.2000. So, even assuming that the award has not been passed within two years as contended by the learned counsel appearing for the appellant, the lands stood vested in the State free from all encumbrances, after handing over possession of the said lands, under the said Notification under Section 4(1) and the Declaration made under Section 6 of the Act. This view is supported by the three Judges Bench of the Apex Court in Satendra Prasad Jain case, 1993 (4) SCC 369 , wherein the Apex Court has held as follows:’ “Whether notification under Section 4 (1) and the declaration under Section 6 get lapsed if the award is not made within two years as envisaged under Section 11-A? A Bench of three Judges had held that once possession was taken and the land vested in the Government, title to the land so vest-ed in the State is subject only to determina-tion of compensation and to pay the same to the owner. Divesting the title to the land statutorily vested in the Government and reverting the same to the owner is not con templated under the Act. Only Section 48(1) gives power to withdraw from acquisition that too before possession is taken. Divesting the title to the land statutorily vested in the Government and reverting the same to the owner is not con templated under the Act. Only Section 48(1) gives power to withdraw from acquisition that too before possession is taken. That question did not arise in this case. The property under acquisition having been vested in the appellants, in the absence of any power under the Act to have the title of the appellants divested except by exercise of the power under Section 48 (1), valid title cannot be defeated. The exercise of the power to quash the notification under Section 4 (1) and the declaration under Sect ion 6 would lead to incongruity. Therefore, the High Court under those circumstances should not have interfered with the acquisition and quashed the notification and declaration under Sections 4 and 6 respectively. Considered from either perspective, we are of the view that the High Court was wrong in allowing the writ petition”. 11. The Apex Court taking into consideration of the public interest and also the scope of Article 226 of Constitution of India, put a restriction to interfere with the acquisition proceedings on technical; grounds. While doing so, the learned Judges have held as follows in the decision in Ramnikal. N. Bhutta v. State of Maharashtra , 1997 ( 1 ) SCC 134:- “Whatever may have been the practices in the past, a time has come where the Courts should keep the larger public interest in mind while exercising their power of granting stay/injunction . The power under Article 226 is discretionary. It will be exercised only in furtherance of interests of justice and not merely on the making out of a legal point. And in the matter of land acquisition for public purposes, the interests of justice and the public interest coalesce. They are very often one and the same. Even in a civil suit, granting of injunction or other similar orders, more particularly of an interlocutory nature, is equally discretionary. The Courts have to weigh the public interest vis-a-vis the private interest while exercising the power under Article 226 indeed any of their discretionary powers . They are very often one and the same. Even in a civil suit, granting of injunction or other similar orders, more particularly of an interlocutory nature, is equally discretionary. The Courts have to weigh the public interest vis-a-vis the private interest while exercising the power under Article 226 indeed any of their discretionary powers . It may even be open to the High Court to direct in case it finds finally that the acquisition was vitiated on account of non-compliance with some legal requirement that the persons interested shall also be entitled to a particular amount of damages to be awarded as a lump sum or calculated at all certain percentage of compensation payable. There are many ways of affording appropriate relief and redressing a wrong; quashing the acquisition proceedings is not the only mode of redress. To wit, it is ultimately a matter of balancing the competing interests. Beyond this, it is neither possible nor advisable to say. We hope and trust that these considerations will be duly borne in mind by the courts while dealing with challenges to acquisition proceedings”. 12. While dealing with similar facts. The Hon’ble The Chief Justice of India and another Hon’ble Judge, the decision in H.M. Kelogir Rao v. Govt. of A.P. 1997 (1) SCC 722, agreeing with the view of the three-Judges Bench of the Apex Court in Senjeevanagar Medical Health Employees Coop. Society v. Mohd. Abdul Wahab , 1996 (3) SCC 600 have held that “we have no hesitation to hold that in the established facts and circumstances of the case, there is no scope for now directing the land, and which had vested in the State and of which posses-sion had been taken by the State almost two decades ago to be now returned to the appellant”, 13. For the foregoing reasons, this Court cannot interfere with the land acquisition proceedings at this stage, and so W..A.Nos.47 and 48 of 2000 are dismissed accordingly, and, as stated above W.A. No. 49 of 2000 is allowed. No costs. Consequently, the connected C.M.Ps. are closed.