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2000 DIGILAW 562 (KAR)

BALAGOUDA ALAGOUDA PATIL v. STATE OF KARNATAKA

2000-08-11

ASHOK BHAN, R.GURURAJAN

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( 1 ) ASHOK Bhan, Ag. CJ aggrieved by the order of the Single Judge dismissing Writ petition Nos. 20039 and 20096/1996 thereby upholding the notifications issued under Section 4 (1) and 6 of the Land Acquisition act, 1894 (for short 'the Act'), present appeals have been filed challenging and seeking for setting aside the order passed by the single Judge and to allow the Writ Petitions thereby quashing the notifications issued under the Act. ( 2 ) APPELLANTS are the owners of lands bearing Sy. Nos. 398/id+2a and 398/1a measuring 6. 28 acres and 0. 12 acres respectively situated in Sakeswar village, District Belgaum. State of Karnataka issued a preliminary Notification under Section 4 of the Act seeking to acquire the lands in question along with certain other pieces of land for a public purpose of establishing a sugarcane Research station of Sankeshwar. The Preliminary Notification was published in the official gazette on 5. 10. 1972. This was followed by a final notification under Section 6 dated 28. 9. 1974. ( 3 ) APPELLANTS herein challenged the Notifications issued under the Act by filing Writ Petition No. 5521/1975. The learned Single judge, who had heard the Writ Petition, dismissed the same by his order dated 18. 11. 1975. Appellants preferred Writ Appeal No. 128/ 1976. The Division Bench allowed the appeal by an order dated 4. 11. 1980 and passed the following order:"accordingly, this appeal is allowed and in reversal of the order of the learned Single Judge, the Writ Petition is allowed in part and the entire proceedings in so far as they relate to the acquisition of the appellant's land pursuant to the preliminary notification dated 27. 10. 1972 in LAQ/sr-813 upto the stage of issue of notices under Section 9 requires to be quashed and are hereby quashed. " ( 4 ) THE State understood the order as having quashed the entire proceedings including the Notification issued Under Section 4 (1) of the Act till the stage of issue of notices under Section 9 of the Act. On the basis of such understanding, the State filed an appeal before the Supreme Court in Civil Appeal No. 3249 of 1984. The Supreme court, by its order dated 16. 2. On the basis of such understanding, the State filed an appeal before the Supreme Court in Civil Appeal No. 3249 of 1984. The Supreme court, by its order dated 16. 2. 1994 held that the Division Bench had only quashed the final notification under Section 6 of the Act and the action taken subsequent thereto and had not disturbed the preliminary notification issued under Section 4 (1) of the Act. In this view of the matter, the appeal was dismissed by the Supreme Court. Subsequently, the Land Acquisition Officer (LAO) took the papers on file and held the enquiry afresh under Section 5a of the Act. Land Acquisition Officer recommended to the State Government for acquisition of the land. State Government after considering the report of the LAO, issued a final notification under Section 6 of the Act which was published on 13. 9. 1995 in the official gazette. In the final notification, it was stated that the land of the appellants was acquired for the public purpose stated in the preliminary notification. ( 5 ) APPELLANTS being aggrieved, filed Writ Petitions challenging the preliminary notification dated 5. 10. 1972 as well as the final notification dated 13. 9. 1995 inter alia on the grounds (i) that the final notification having been issued beyond the statutory period of 3 years from the date of issue of preliminary notification, the entire acquisition proceedings would be deemed to have lapsed and therefore, the state Government was not right in law in issuing the final notification on 13. 9. 1995 with regard to the preliminary notification dated 5. 10. 1972; (ii) that though the total extent of land notified for acquisition was 69 acres, the State Government took possession of only 32 acres and 25 guntas. The State Government failed to take possession of another extent of 14 acres and 38 guntas which was available for it in pursuance to the final notification without any reason. This conduct of the Government clearly demonstrated that the requirement of the State Government for the purpose indicated in the preliminary notification was only to the extent of 32 acres 25 guntas and the balance land was not required. This conduct of the Government clearly demonstrated that the requirement of the State Government for the purpose indicated in the preliminary notification was only to the extent of 32 acres 25 guntas and the balance land was not required. The Government therefore was not justified in notifying the 6 acres and 18 guntas of land belonging to the appellants for acquisition; (iii) that the State government has acted mala fide in selecting the appellants' land only for acquisition, and (iv) that the appellants had not been provided with an opportunity to participate in the enquiry under Section 5a thereby violating the principles of natural justice. ( 6 ) THE State Government as well as the 4th respondent University of Agricultural Sciences, for whose benefit the land had been acquired, filed separate statement of objections. The common stand taken by both the respondents was that in view of the Supreme court's decision in N. NARASIMHAiah and OTHERS vs STATE OF karnataka and OTHERS and in subsequent decision of the same court in VENKATASWAMAPPA vs SPECIAL DEPUTY commissioner (REVENUE), the limitation for purpose of Section 6 (1) (i) of the Act starts from the day the LAO receives the order of the Court which had quashed Section 6 Notification, and if so computed having regard to the date of dismissal of the Civil Appeal dated 16. 2. 1994 and the date of final notification dated 13. 9. 1995, the final declaration issued is well within the period of three years. The reason for the State Government in net taking possession of 14 acres 38 guntas was stated to be that the owners of the piece of land had also challenged the acquisition proceedings like the appellants herein by filing Writ Petition No. 791/1970. The High Court had quashed the Notifications issued under Section 4 (1) and 6 (1) of the Act. Fresh proposals for acquisition of the said land has also been sent. Even otherwise, the mere fact the State Government had not taken possession of some portion of the lands notified for acquisition for some time may not be a ground to quash the acquisition proceedings in respect of the land notified. The allegation that the appellants have not been provided with an opportunity to participate in the enquiry under Section 5a was denied. Appellants had participated in the proceedings under Section 5a. The allegation that the appellants have not been provided with an opportunity to participate in the enquiry under Section 5a was denied. Appellants had participated in the proceedings under Section 5a. It was pointed out that the LAO had taken note of the objections raised before him by the appellants and thereafter passed the order Allegations of malafrdes were also denied. ( 7 ) COUNSEL for the parties have been neard. ( 8 ) LEARNED Single Judge, after appreciating the submissions made by the Counsel for the parties, passed a detailed order rejecting each of the submissions made before him. The points raised before us are the same as were raised before the Single Judge. For the reasons stated hereinafter, we do not find merit in either of the submissions made by the counsel for the appellants. ( 9 ) SECTION 6 of the Act authorities the State Government to issue the final declaration after considering the report, if any, made under section 5a of the Act that any particular land is needed for a public purpose by issuing a declaration under the signature of a Secretary to such Government or of some Officer duly authorised to certify its orders. Proviso to Section 6 (1) providing the limitation for issuing the final notification from the date of issuance of preliminary notification under Section 4 was introduced by Act 68 of 1984, which reads as under :"provided that no declaration in respect of any particular land covered by a notification under Section 4, sub-section (1) (i) Published after the commencement of the Land Acquisition (Amendment and Validation) ordinance 1967 (1 of 1967), but before the commencement of the Land Acquisition (Amendment) act, 1984, shall be made after the expiry of three years from the date of the publication of the notification; or (ii) published after the commencement of the Land Acquisition (Amendment) Act, 1984, shall be made after the expiry of one year from the date of publication of the notification. Provided further that no such declaration shall be made unless the compensation to be awarded for such property is to be paid by a company, or wholly or partly out of public revenues or some fund controlled or managed by a local authority. Provided further that no such declaration shall be made unless the compensation to be awarded for such property is to be paid by a company, or wholly or partly out of public revenues or some fund controlled or managed by a local authority. Explanation-1 - In computing any of the periods referred to in the first proviso, the period during any action or proceedings to be taken in pursuance of the notification issued under Section 4, sub-section (1 ). is stayed by an order of a Court shall be excluded. Explanation 2- Where the compensation to be awarded for such property is to be paid out of the funds of a Corporation owned or controlled by the State, such compensation shall be deemed to be compensation paid out of public revenues. " ( 10 ) IN the present case, as preliminary notification under Section 4 had been issued prior to the amendment made to Section 6 providing the limitation, the final notification under proviso (i) could therefore be issued within three years from the date of publication of notification under Section 4. As stated in the foregoing paragraphs, division Bench had quashed the earlier notification upto the stage of issue of notices under Section 9. The State Government had filed civil Appeal No. 3249/1984 under a bonafide mistake taking that the entire proceedings had been quashed. The Supreme Court in c. A. No. 3249 of 1984 held that the Division Bench had quashed only the final notification under Section 6 and the action taken subsequently till notices under Section 9 of the Act. This order was passed by the Supreme Court on 16. 2. 1994. The final notification dated 13. 9. 1995 is thus within the period of 3 years as contemplated under Section 6 (1) (i) of the Act. The Supreme Court in narasimhaiah's case (supra), after considering in detail the provisions of the Act and various decisions rendered by the Madras high Court and other Courts held as follows :"16. We are of the opinion that running of the limitation should be counted from the date of the order of the Court received by the Land Acquisition Officer and declaration is published within one year from that date. It would be consistent with the scheme of the Act and it would subserve the public purpose. We are of the opinion that running of the limitation should be counted from the date of the order of the Court received by the Land Acquisition Officer and declaration is published within one year from that date. It would be consistent with the scheme of the Act and it would subserve the public purpose. Parliament amended the Act and prescribed limitation since the acquisition proceedings were unduly delayed for years and the owners of lands were put to hardship. If operation of limitation under clause (ii) of first proviso to Section 6 (1) is not applied, we would come back to square and defeat the legislative purpose of limitation prescribed under the Act. The Government is bound under the order of the Court to hold an enquiry under Section 5-A. Thereafter, if the Government still opines that the land is needed for public purpose, declaration under Section 6 should be published within one year as indicated above. This interpretation would render judicial review efficacious and meaningful and public purpose subserved and the aggrieved owner get an opportunity to vindicate his grievance. Thus, we hold that the limitation prescribed in clause (ii) of the first proviso to sub-section (1) of Section 6 would apply to publication of declaration under Section 6 (1) afresh. If it is published within one year from the date of the receipt of the order of the Court by Land Acquisition Officer, declaration published under section 6 (1) would be valid. 17. The second contention that there would be two dates of notification under Section 4 (1) as initially published and the one deemed to be published subsequent to upholding of second declaration under Section 6 (1) and that the compensation under section 23 (1) is required to be determined with reference to second date, is untenable. The declaration under Section 6 (1) gives only conclusiveness to the public purpose specified in Section 4 (1) and the notification under Section 4 (1) still remains valid which is relevant for the purpose of computation of market value as envisaged under Section 23 (1) of the Act. When the Court upholds the declaration it would relate back to the date of publication under section 4 (1 ). Therefore, there are no two dates for the purpose of computation of the market value as contended for. When the Court upholds the declaration it would relate back to the date of publication under section 4 (1 ). Therefore, there are no two dates for the purpose of computation of the market value as contended for. The purpose of enquiry under Section 5-A is to determine whether the land is needed for the public purpose and the affected owner or interested person gets a right to show that the public purpose mentioned in section 4 (1) is not the public purpose or some other land is more suitable or is available for the public purpose cr his lands need to be excluded from public purpose as proposed land may be in excess of requirement. Once the Government, after holding the enquiry has considered the objections and decided that the land is needed for public purpose, declaration published under section 6 would become conclusive of the public purpose. Nonetheless, relevant date for Section 23 (1) is the date of the publication of the notification under Section 4 (1 ). 18. Admittedly, in this case the second declaration was published within one year even from the date of the order passed by the High Court, and therefore, the view of the Division Bench is required to be upheld. Thus, we hold that the declaration published under Section 6 (1) on May 13, 1989 is valid and the notification dated January 22, 1987 under Section 4 (1) does not become invalid. The Land Acquisition Officer should conduct and complete award enquiry within one year from the date of the - receipt of the order of this Court. " ( 11 ) THIS view was again reiterated by the Supreme Court in VEKATASWAMAPPA's case (supra) wherein it held :"7. It is then contended that since limitation period of one year from the date of the publication under Section 4 (1) had elapsed and the stay granted by the High Court or this Court was only of dispossession of. the appellants from the lands, the notification under Section 4 (1) now stands lapsed by Explanation 1 to proviso to Section 6 (1), we find no force in the contention. the appellants from the lands, the notification under Section 4 (1) now stands lapsed by Explanation 1 to proviso to Section 6 (1), we find no force in the contention. It is seen that the writ petitions came to be filed in March 1989 in the same month in which the substance of the publication of the notification under Section 4 (1) was made and the proceedings were pending before the learned Single Judge, the Division Bench and in this Court. Under these circumstances, the entire time taken from the date of filing of the Writ Petitions till the date of the receipt of the order of this Court stands excluded and the limitation of one year would start thereafter only Accordingly, we hold that the notification under Section 4 (1) has not been lapsed. It is now on record that the appellants have already filed their objections; enquiry under Section 5-A was conducted and report obviously must have been furnished to the Government for taking further steps in the matter. It would, therefore, be necessary for the Government to consider the objections and have the declaration under Section 6 published, if the Government is of the opinion that the public purpose still subsists. " ( 12 ) A reading of these two decisions leaves no room for doubt that the entire time taken from the date of filing of the Writ Petitions till the date of receipt of the order of the Court (which becomes final) has to be excluded while calculating the limitation for issuance of the final notification. The period of limitation of one year (in the present case 3 years) would start running thereafter only. It was held that the notification issued under Section 4 (1) had not lapsed. ( 13 ) IN the case on hand, final notification had been issued within 3 years from the date of receipt of the order cf the Supreme Court, as the period of limitation applicable would be 3 years as it falls under Section 6 (1) (i) of the Act. Submission of Sri Kamate, Counsel for the appellants, that in the facts of the present case the limitation should be taken from the date of receipt of the order of the Division bench dated 4. 11. Submission of Sri Kamate, Counsel for the appellants, that in the facts of the present case the limitation should be taken from the date of receipt of the order of the Division bench dated 4. 11. 1980 as there was no stay by the Supreme Court, cannot be accepted for the reason that the State Government had genuinely entertained a doubt by the reading of the judgment of the division Bench that preliminary as well as final notification had been quashed. The order of the Supreme Court in C. A. 3249/1984 would show that the Supreme Court had held that there was no basis for such a doubt, but however clarified that the order of the Division bench did not disturb the preliminary notification. Therefore, it cannot be held that the State Government, under the circumstances, was not under a bonafide belief that the entire acquisition proceedings had been quashed and therefore limitation for issuing final notification would start from the date of passing of the order by the Division bench from 4. 11. 1980. It cannot be said that the State Government, in the facts and circumstances of the case, was not correct in proceeding with the issuance of final notification after the receipt of the order of the Supreme Court of India clarifying that the High Court had not quashed the preliminary notification. ( 14 ) THE limitation stated in Section 6 (1) (i) of the Act was introduced by Act No. 68/1984, about 4 years after the order of the division Bench. Hence, when the Division Bench had passed the order, there was no compulsion of limitation on the State Government to proceed with the acquisition and the decisions referred to in narasimhaiah and VENKATASWAMAPPA's case clearly indicate that the period of limitation is 3 years or 1 year as ihe case may be, where the Courts quashed the final notification, and would start running only from the date of receipt of Court orders by the LAO. Having regard to what is stated above, we entertain no doubt that in this case the limitation would start running only after the receipt of the orders of the Supreme Court by the LAO. Having regard to what is stated above, we entertain no doubt that in this case the limitation would start running only after the receipt of the orders of the Supreme Court by the LAO. ( 15 ) TAKING up the second contention, it could be seen that the owners of the land in respect of land measuring 14 acres 38 guntas had also filed Writ Petition No. 791/1970 which was accepted and the Notifications issued under Sections 4 and 6 (1) of the Act were quashed. Respondents have stated that steps are being taken to issue fresh notification to acquire those lands as well. Apart from this, merely because the State Government did not chose to take possession of small portion of land is itself not a ground to say that the need of the State Government has to be limited to the extent of the possession taken by it. There can be variety of reasons for the state Government for not taking possession of small portion of the land. Merely because not taking possession of small portion of the land by itself will not be a ground to quash the acquisition proceedings. ( 16 ) ALLEGATIONS of malafide have not been clearly spelt out. Persons responsible for influencing the State Government to acquire the lands have not been mentioned. Appellants have failed to place on record sufficient and cogent material to constitute factual malafides. Learned Single Judge, on examination of the record made available by the State, has come to the conclusion that the Appellants had participated in the proceedings under Section 5a of the Act. The only objection raised by the appellants was "that apart from the lands notified for acquisition they did not possess any other lands". This objection was duly considered and rejected by the LAO and it was held that the entire lands were required for public purpose. Allegation that the appellants were not permitted to participate in the proceedings under Section 5a of the Act is therefore not established. To the contrary, it is found on record, that the appellants duly participated in the proceedings under Section 5a of the Act and objections filed by them were duly considered and rejected. ( 17 ) FOR the reasons stated above, we do not find any merit in these appeals and dismiss the same with no order as to costs. --- *** --- .