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2003 DIGILAW 39 (KAR)

VIJAY KUMAR v. STATE OF KARNATAKA

2003-01-13

body2003
SALDANHA, J. ( 1 ) CERTAIN vital facets of the law relating to Section 11-A of the Land Acquisition Act have arisen in this appeal and we shall briefly indicate the factual background that has given raise to the controversy. One Sangramappa was the original owner of Servey No. 41 of Jangal Koi Extension, Bidar City ad measuring 27 Acres 26 Guntas. This land along with certain others was notified for acquisition and the S. 4 (1) notification was issued on 3. 3. 1982. The final notification or declaration was issued on 8. 11. 1983. The provisions of S. 11-A of the Land Acquisition Act mandates that the award is required to be made within a period of two years from the date of the final notification which in this case only ended on 8. 11. 1985. The award in question has in fact been made on 22. 7. 1997. The legal heirs of Sangramappa who had long since expired on 14. 10. 1990 filed WP. 2140/1999 before the learned Single Judge challenging the validity of the acquisition of this Survey No. i. e. Survey No. 41 on two grounds. Firstly, they contended that the authorities had never issued any notice to them in respect of this acquisition and that the notice question had been issued to three other persons namely, Adveppa, Kantappa and Sharanappa. The reason for this was because as early as on 3. 4. 1972 the Revenue Inspector, Bidar Taluk had changed the mutation in respect of this Survey Number by rounding off the original entry and making pencil entries in favour of these three persons. The authorities contended that they were fully justified in having issued the notice to these three persons whose names appear in the record and that they were not obliged to issue any notice to the original land holder Sangramappa because his name had been superceded. The record indicates that several proceedings had been instituted in relation to this dispute concerning the mutation entry which ultimately culminated in the filing of a Writ Petition before this Court and on 27. 1. 1999 this Court quashed the entries in favour of the three persons and remanded the proceeding to the Tahsildar who in turn restored the original entry in favour of the heirs of Sangramappa. 1. 1999 this Court quashed the entries in favour of the three persons and remanded the proceeding to the Tahsildar who in turn restored the original entry in favour of the heirs of Sangramappa. It is principally on this basis, that the plea was raised before the learned Single Judge that it was obligatory on the part of the acquiring authorities to have issued notice to the rightful owner namely Sangramappa or his legal heirs and in not having done so, the entire proceeding would be vitiated. ( 2 ) THE second plea that was canvassed is really the more consequential one namely that the law mandates in acquisition proceedings that under S. 11-A which has been on the statute book since the year 1984 that if the award is not made within two years, the entire proceeding for the acquisition of the lands shall lapse. ( 3 ) BEFORE the learned Single Judge, the respondents had contended that by virtue of the ratio in Rangaswamys Case reported in I. L. R. 1992 Karnataka 1483 the Division Bench had held that the service of individual notice on the land owner was optional and that consequently, the fact that no notice had been served on Sangramappa or his legal heirs was of no consequence. The learned Single Judge held that since admittedly neither Sangramappa nor his legal heirs could establish that as on the date of the 4 (1) notification i. e. 3. 3. 1982 their names appeared in the revenue records, that consequently, this grievance raised was groundless. The appellants learned Counsel has vehemently submitted before us that in the first instance, by virtue of the order passed by this Court on 27. 1. 1999 the status quo ante is restored and he submits that this fully reinforces his contention that it was obligatory on the part of the authorities to have issued notice to Sangramappa who was very much alive at that point of time. 1. 1999 the status quo ante is restored and he submits that this fully reinforces his contention that it was obligatory on the part of the authorities to have issued notice to Sangramappa who was very much alive at that point of time. The alternate plea canvassed by him is that assuming that the names of the other three persons had appeared by virtue of Sangramappa s name having been inserted and pencil entries having been made at the very highest, the acquisition authorities could have proceeded on the footing that pursuant to some application a change has been tentatively made in the revenue records but that nothing was yet final because the entries were pencil entries because Sangramappa s name had only been encircled and most importantly because it has not yet been deleted. His submission therefore is that on the state of the record it was self-evident to anybody who checked it that there was some ambiguity with regard to the question as to who precisely was the rightful owner of Survey No. 41 and that consequently, the only safe course of action would have been to issue notice to all the four persons. Mr. Shankar vehemently submitted that in not having issued notice to Sangramappa, the entire proceeding gets vitiated because the subsequent events have clearly established that the pencil entries made were totally unjustified and that consequently, today we are left with a situation in which Sangramappas land and that too measuring a considerable area of over 27 Acres 26 Guntas is sought to be acquired without any notice to him. As a necessary consequence, even the award that has been made holds the other three persons as beneficiaries despite the fact that the records clearly indicate that he was the owner on the appointed date and the injustice according to the learned Counsel gets compounded because of the fact that if the acquisition is finalised, Sangramappa or his legal heirs stand to lose the land and they also would lose the compensation which would go to the three persons who, as the record now establishes had no right, title or interest in the land and who would get the entire compensation by default. The submission is that this would be injustice compounded and that the learned Single Judge was in error in having virtually brushed aside ground No. 1 in the course of hardly five lines. ( 4 ) ON behalf of the Housing Board and on behalf of the State who are the acquiring authorities the learned Counsel have vehemently submitted that it is well settled law that the acquisition authorities are not obliged in law to undertake any detailed investigation nor are they required to undertake any searches for purposes of deciding as to whom the S. 4 (1) notification should be served on. They have pointed out to us and we fully accept the submission that the authorities are required to act on the basis of the records as on the date of the 8. 4 (1) notification. Our attention has been drawn to one of the later decisions of the Supreme Court reported in 1994 Supp (2) SCC 511 (SRISHCHANDRA C. NEHTA. V. STATE OF KARNATAKA and OTHERS) wherein the Supreme Court has reiterated the proposition that the notice is required to be served on the persons whose names are found in the revenue register. Submission canvassed by the respondents learned Counsel is that it was the three persons whose names appeared in the register, that the name of Sangramappa having been encircled, that the only inference that could be drawn was that the three names have been inserted in place of the original owner and that therefore, the authorities were fully justified in having served the notice only on the other three persons and not on Sangramappa. ( 5 ) AS far as the law on the point is concerned , while the general proposition canvassed by the respondents learned Counsel is faultless what we have pointed out to them with respect, is that it is very necessary to exercise due care and caution in cases of this type because entries in the revenue records are not very reliable for obvious reasons, that there are numerous instances when changes taked place and that consequently, where pencil entries are made it is obvious that these are temporary entries and that the change has not assumed finality. We have already referred to the fact that Sangramappa s name had not been deleted but it had only been encircled and consequently, in our considered view the correct course of action would have been to follow the dictum of the Supreme Court which required a notice to be served on the persons whose names appeared there which meant that it should have been served on all the four persons and that there was absolutely no justification in the omission of Sangramappas name. We have already recorded the consequences of this lapse which are virtually atrocious in so far as the record today undisputedly restores Sangramappa s name as that of the rightful owner which clearly postulates that assuming the acquisition is valid, the right to receive compensation to be paid under the acquisition would accrue to his legal heirs. As the record now stands, if the respondents argument were to be upheld, it would mean that over 27 Acres of Sangramappas land has been acquired but the right to receive compensation would enure to these persons who undoubtedly are not owners of the land. It is necessary in situations of this type for Courts to carefully consider the implications and it is very unfortunate that on a serious issue of this type the learned Single Judge has virtually brushed aside the objection in the course of one short paragraph. In our considered view, the objection will have to be upheld as it is unanswerable both on facts and in law and this alone is sufficient to vitiate the acquisition. ( 6 ) WE are, as of necessity, obliged to deal with the most substantial point canvassed by the appellants learned Counsel which very clearly is to the effect that the final notification having been issued on 8. 11. 1983 under S. 11-A it is mandatory for the award to be made within two years i. e. by 8. 11. 1985. Undoubtedly, the explanation to this Section makes allowance for the entire period covered by a stay order to be excluded and that precisely is the only aspect that falls for consideration. The learned Single Judge relying on the finding of another Single Judge in an earlier proceeding has straight away accepted the defence pleaded by the respondents which in turn is based on the extract from the award wherein the Spl. The learned Single Judge relying on the finding of another Single Judge in an earlier proceeding has straight away accepted the defence pleaded by the respondents which in turn is based on the extract from the award wherein the Spl. Land Acquisition Officer has done some calculation and held that making allowance for the stay orders that were obtained from the High Court that the award made on 22. 7. 1997 was within the period of limitation. We have, with the assistance of the three learned Counsel who represent the contesting parties and after a personal verification of the record and having done the computation ourselves arrived at what in our considered view is the correct factual position. ( 7 ) THE original notification was challenged by way of W. P. No. 16707/1983 and a stay order was obtained from the High Court on 17. 2. 1984. This Writ Petition came to be dismissed on 26. 6. 1987 and the total duration of the stay order obtained in this proceeding comes to three years four months and nine days. ( 8 ) IN the year 1987 one more Writ Petition was filed by the three persons on whom the original notice was served and a stay order was obtained on 24. 9. 1987 which continued up to 8. 10. 1987 for a period of fifteen days. We have verified from the original order sheet of this Court which has been produced before us by the respondents learned Counsel and we find that from 8. 12. 1987 to 12. 12. 1988 the stay order had not been extended and consequently there was no stay order in operation. It was only on 12. 12. 1988 that the stay was once again revived and this continued until 2. 6. 1995 when the Writ Petition was finally dismissed. A period of six years, six months and twenty days was the duration of the extended stay order. The aggregate of these periods or the total period for which the stay order was in operation comes to nine years, five months and fourteen days. We have already indicated that the award was made on 22. 7. A period of six years, six months and twenty days was the duration of the extended stay order. The aggregate of these periods or the total period for which the stay order was in operation comes to nine years, five months and fourteen days. We have already indicated that the award was made on 22. 7. 1997 and we have computed the statutory period of two years, added on the total period of the stay which had been set out by us above and we still find that there is a delay of one year, ten months and sixteen days in the making of the award. ( 9 ) THE Land Acquisition Officer has while computing the period for which the stay was in operation taken into account one other factor namely that even though the Writ Petition 14325/1987 was dismissed on 2. 6. 1995 that the copy of the order from the High Court reached his office only on 19. 2. 1996 and the submission is that the learned Single Judge of this Court while deciding W. P. No. 33394/1997 on 26. 3. 1998 wherein the acquisition was challenged by the other three persons placed reliance on a decision of the Supreme Court reported in 1996 (3) SCC, page 88 (N. NARASIMHAIAH v. STATE OF KARNATAKA) wherein the Apex Court had occasion to make some observations with regard to the time period that may elapse while communicating an order and had obviously taken cognizance of the general principle in relation to limitation namely the date of knowledge. It was sought to be submitted here before us that consequently, the period of eight months and seventeen days that elapsed between 2. 6. 1995 when the writ petition was dismissed by the High Court and 19. 2. 1996 when the copy of the order was received in the office of the Spl. Land Acquisition Officer should also be given credit for. In our considered view, this submission cannot be upheld for the reasons that we shall presently indicate but it is in order to demonstrate that even if the respondents are given credit for the period of eight months and seventeen days that they will still be outside the period of limitation by one year and thirteen days. In our considered view, this submission cannot be upheld for the reasons that we shall presently indicate but it is in order to demonstrate that even if the respondents are given credit for the period of eight months and seventeen days that they will still be outside the period of limitation by one year and thirteen days. ( 10 ) APPELLANTS learned Counsel submitted that a Court while giving effect to the provisions of S. 11-A is required in law to strictly construe the section and that there is absolutely no ground on which any extensions are permissible. His submission is that if the contention raised by the respondents were to be upheld that there could be situations in which, as characteristically happens, the authorities apply for copies of the orders which may take months or years to be furnished or there may be delays of all types which are very common and that merely because the order reached the Spl. Land Acquisition Officer after several years or decades which is very common in the case of the dealings by the Government authorities, that it would completely nullify the purpose of S. 11 and in this regard he drew our attention to a recent decision of the Supreme Court reported in A. I. R. 2002 S. C. 1334 wherein the Supreme Court has in terms held that the period consumed for purposes of communication of the order cannot under any circumstances be taken into consideration. In this case, the writ petition was directed against the acquiring authorities, notice had been issued, both sides were represented by their respective Counsel and when the writ petition was dismissed, it is presumed that the order would have been communicated post haste to the acquiring authorities because this was an acquisition of the year 1982. Thirteen years had already elapsed and there was some urgency in the matter. Under these circumstances, viewed at from any angle, there was absolutely no justification for the respondents contention that the period that had elapsed until the order was communicated to the Spl. Land Acquisition Officer should be added on an and consequently, we reject this submission. ( 11 ) THE appellants learned Counsel submitted that his clients have formed a layout, that they have allotted the sites to various persons and that the entire infrastrutural facilities including roads, water supply, police station, hospital etc. have come up. Land Acquisition Officer should be added on an and consequently, we reject this submission. ( 11 ) THE appellants learned Counsel submitted that his clients have formed a layout, that they have allotted the sites to various persons and that the entire infrastrutural facilities including roads, water supply, police station, hospital etc. have come up. His submission is that consequently, this Court must uphold the legal position as emerged from S. 11-A of the Act and declare that the acquisition proceedings have lapsed vis. a. vis. Survey No. 41 only so that his clients can proceed unhindered. ( 12 ) AS against this position, the learned Counsel who represents the Housing Board as also the learned Govt. Advocate have submitted that they do not accept this contention. According has them, the record indicates that the possession has been taken over on 31. 1. 1984 and the possession is with the authorities. We say nothing with regard to the factual position because the appellants have produced a Mahazar dated 13. 1. 1998 to the effect that the possession of Survey No. 41 is still with the appellants. In our considered view, this would make no difference whatsoever because once the acquisition proceedings have lapsed and consequently stand quashed by this Court, even assuming that physical possession or actual possession was taken over that the same will stand reversed by virtue of the order of this Court. ( 13 ) THE provisions of S. 11-A of the Land Acquisition Act were inserted by the legislature in the year 1994 for a specific purpose, the reason being that it was characteristic for the authorities to issue S. 4 (1) notification, freeze the date for purposes of acquisition and for purposes of valuation and then virtually dawdle with the proceedings. In view of the many instances of acquisition proceedings having taken many many years seriously prejudicing the interest of the party whose land has been acquired principally because of the rise in value during the intervening period, the legislature for good reasons enacted S. 11-A which we have reproduced below:- period WITHIN WHICH AN AWARD SHALL BE MADE 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 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. It will be seen from the workings of this Section that it is a no nonsense section in so far as the legislature has prescribed a reasonable time limit of twenty four months for the making and publication of the final award from the date of the final notification and there is zero ambiguity with regard to the consequence in so far as unlike in many other provisions where there is some scope foe argument in this case the Section itself contains a reverse provision which in no uncertain terms states that if the award is not made within the prescribed period that the acquisition proceedings shall lapse. At all stages, the Section uses the word shall which leaves no doubt about the fact that the provision is mandatory. Undoubtedly, the explanation excludes the period during which the stay was in operation for obvious reasons because the authorities are not permitted to proceed during that period of time but in our considered view, where an acquisition proceeding is held up by virtue of a stay order, it is much more necessary that the authorities be vigilant and take cognizance of the fact that immediately on the stay order being vacated that they must complete the making of the award within the two years aggregate period allotted to them. It is for this reason that we have verified and reverified the facts and figures even in the Court room. It is for this reason that we have verified and reverified the facts and figures even in the Court room. We have requested the three learned Counsel to recheck the facts, figures and dates reproduced before us in the judgment and having done so we find that in the present case, the award is very much outside the period prescribed by law. There is no option except to hold that the proceedings in respect of Survey No. 41 have lapsed and that as a necessary consequence the acquisition in respect of this Survey Number stands quashed. Assuming the possession has been taken over by the respondents as they contend, they are directed to restore possession forthwith. ( 14 ) THE order of the learned Single Judge is accordingly set aside. The compensation amount deposited by the authorities shall be refunded to them forthwith. In the circumstances of the case, there shall be no order as to costs. --- *** --- .