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2006 DIGILAW 341 (KER)

Annie Varghese v. State of Kerala

2006-06-19

K.HEMA

body2006
JUDGMENT K. Hema, J. 1. Petitioners jointly own a rubber plantation, having an extent of 36.60 acres equivalent to 14.82 hectares in Kunnamthanam Village. For the purpose of Industries Growth Centre, the Special Tahsildar issued a notification under S.4(1) of the Land Acquisition Act ('the Act', for short) on 18/06/1994. The said notification was published on 14/06/1994 and on 18/06/1994 in two Malayalam dailies. Public notice was also issued in the locality on 15/06/1995. Declaration under S.6 of the Act was published in the Gazette dated 15/05/1996 and in two dailies dated 09/06/1996 and 14/06/1996. The date of publication of declaration is thus 14/06/1996, being the last of the dates of such publication, as per S.6(2) of the Act. 2. On publication of the declaration, petitioners challenged the declaration in OP No. 6143 of 1998 on the ground that it was issued after one year from the date of publication of notification under S.4(1) of the Act and hence it is violative of proviso to S.6(1) of the Act. Copy of the original petition is Ext. P1. This Court passed an order of interim stay of all proceedings pursuant to S.4(1) notification as per order dated 27/03/1998. The interim stay order is Ext. P2. The original petition was dismissed on 12/06/2006 and the judgment is Ext. P3. The stay continued for a period of five years, two months and 16 days. 3. A writ appeal was filed as WA No. 1219 of 2003 and stay was granted on 24/07/2003 for one month. On 03/11/2003, the stay granted was extended until further orders and the writ appeal was dismissed on 20/06/2005 and the copy of the judgment is Ext. P4. The stay was in force for one year, ten months and twenty seven days during the pendency of the writ appeal. The Special Leave Petition filed against the judgment in the writ appeal was dismissed by the Supreme Court on 02/09/2005. Review petition also was dismissed on 06/12/2005. 4. Petitioners received notice of award dated 14/02/2006. They made applications before the fourth respondent for certified copies of the awards and those were received on 29/03/2006. The three awards passed are Ext. P5 series. The notices of awards are Exts. P6 and P7. Petitioners were also served with notices to vacate and deliver possession of the land covered by the acquisition before the evening on 06/03/2006 proposing to take further action. The three awards passed are Ext. P5 series. The notices of awards are Exts. P6 and P7. Petitioners were also served with notices to vacate and deliver possession of the land covered by the acquisition before the evening on 06/03/2006 proposing to take further action. Copy of the said notices are Exts. P8 and P9 (Ext. P9 is dated 01/03/2006). 5. Petitioners herein seek to quash the awards, Exts. P5 series and also the notices, Exts. P6 to P9, which are notices of awards and also notices to surrender and deliver possession. According to the petitioners, the awards were passed after a period of 9 years and 8 months of publication of declaration under the Act. The declaration was on 14/06/1996. Even if the period of stay is excluded, the awards were not passed within two years from the date of declaration, it is contended. Hence according to petitioners, awards have lapsed and all further proceedings are illegal and they seek for a direction not to proceed with acquisition of land or to enforce surrender of property, pursuant to Exts. P8 and P9 notices. 6. The learned Government Pleader submitted that possession of the land is taken on 06/03/2006, after passing of the awards, as per Ext. P5 series. But, it is admitted that the declaration was made on 14/06/1996. The Government, having taken possession of the property on 06/03/2006, it is contended that the petitioners cannot challenge the awards, since the property is vested in Government. There is no provision in the Act by which the property will revert back to the petitioners or the land owners, it is strongly argued. It is also vehemently contended that the petition is not maintainable, since title of the acquired land completely passes on to the State and the High Court has no jurisdiction to intervene, in the exercise of writ jurisdiction. It was also argued that in any event, after the award is passed, no writ petition can be filed challenging the acquisition proceedings. 7. But, learned counsel for petitioner argued that the entire proceedings have lapsed by virtue of S.11A. To appreciate the contentions, it is relevant to quote S.11A of the Act. S.11A of the Land Acquisition Act reads as follows: "S.11A. 7. But, learned counsel for petitioner argued that the entire proceedings have lapsed by virtue of S.11A. To appreciate the contentions, it is relevant to quote S.11A of the Act. S.11A of the Land Acquisition Act reads as follows: "S.11A. Period within which an award shall be made.-- The Collector shall make an award under S.11 within a period of two years from the date of the publication of the declaration and if no award is made within that 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, (68 of 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." 8. S.11A of the Act provides that the Collector shall make an award under S.11 of the Act within a period of two years from the date of the publication of declaration and if no award is made within that period, the entire proceedings for acquisition of the land 'shall' lapse. As per explanation to S.11A of the Act, in computing the period of two years referred to in the 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 evident from records that the award is passed after two years of publication of the declaration under S.6 of the Act. So, going by S.11A of the Act, the entire proceedings for acquisition of petitioners' land have lapsed. 9. It is clear from the above provision that if the award is not passed within the stipulated period of two years from the date of publication of declaration, the entire proceedings for acquisition of the land 'shall' lapse. The word 'lapse' as per the Concise Oxford Dictionary means, "a right or privilege etc. become invalid because it is not used or claimed or renewed". It means in law, "the termination of a right or privilege through disuse or failure to follow appropriate procedures". The word 'lapse' as per the Concise Oxford Dictionary means, "a right or privilege etc. become invalid because it is not used or claimed or renewed". It means in law, "the termination of a right or privilege through disuse or failure to follow appropriate procedures". Therefore, if an award is passed after the period stipulated in S.11A of the Act, the entire proceedings shall lapse and the Government loses the right or privilege to continue the proceedings because the proceedings have become invalid. 10. In this context, it is to be looked into whether taking of possession of the land pursuant to the awards, (Exts. P5 series) is legal or not or whether on such taking of possession, the property vests in the Government. The learned Government Pleader placed reliance upon S.16 of the Act to argue that once the Collector passes an award under S.11, the Collector will be entitled to take possession of the land and if such possession is taken, the land shall, thereupon, vest absolutely in the Government, free from encumbrances. It was argued that in the light of S.16 of the Act, the property is to be deemed to have been vested absolutely in the Government. 11. Admittedly, the notification was issued on 18/06/1994 and the declaration under S.6 of the Act was passed on 14/06/1996. The awards, Exts. P5 series are seen passed only on 14/02/2006, after expiry of more than nine years of publication of declaration. So, the entire proceedings shall lapse as per S.11A. Even on excluding the period of stay, the awards passed are after expiry of the period. There was stay during the pendency of OP No. 6143 of 1998 and WA No. 1219 of 2003 for a total period of seven years, one month and ten days and even if such period is excluded, the awards were passed only after two years and six and a half months of publishing of declaration under S.6 of the Act. 12. It is relevant to quote S.16 of the Act. S.16 of the Land Acquisition Act reads as follows: "S.16. Power to take possession.-- When the Collector has made an award under S.11, he may take possession of the land, which shall thereupon vest absolutely in the Government, free from all encumbrances." 13. 12. It is relevant to quote S.16 of the Act. S.16 of the Land Acquisition Act reads as follows: "S.16. Power to take possession.-- When the Collector has made an award under S.11, he may take possession of the land, which shall thereupon vest absolutely in the Government, free from all encumbrances." 13. S.16 of the Act provides that when the Collector has made an award under S.11, he is entitled to take possession of the land in which event, it shall absolutely vest in the Government, free from all encumbrances. According to the learned Government Pleader, possession of the land is also taken by the Government on 06/03/2006 and hence the property vests in Government absolutely. But, learned counsel for the petitioners would vehemently contend that possession of the land was not actually taken by the respondents even as on today. It is strongly contended that he has not received any communication regarding taking of possession of land. It is also submitted that the petitioners are even now tapping the trees which stand in the relevant properties. 14. Even if it is assumed for arguments' sake that the property was actually taken possession of by the Government, what will be the effect of such taking of possession? I have already held that if an award is passed after the time stipulated in S.11A, the entire land acquisition proceedings shall lapse. Consequent to such lapse of proceedings, the Government loses all the right and privileges to proceed under the provisions of the Land Acquisition Act by virtue of S.11A of the Act. Therefore, whatever action is taken by the Government once the proceedings have lapsed as per S.11A, such action is invalid. Taking of possession, after lapse of the proceedings is illegal. The Collector will not be empowered to take possession of the land pursuant to the awards passed after expiry of the period contemplated under S.11A of the Act and such taking of possession is without jurisdiction because the entire proceedings have lapsed. If at all any possession is taken, after expiry of the period stated in S.11A, such possession is only illegal and no right over the property passed into the Government. 15. No law contemplates or justifies or regularises anything done illegally, in the absence of any specific provision which would save such situations. If at all any possession is taken, after expiry of the period stated in S.11A, such possession is only illegal and no right over the property passed into the Government. 15. No law contemplates or justifies or regularises anything done illegally, in the absence of any specific provision which would save such situations. There is nothing in the Act to show that if possession is taken illegally, in the absence of any specific provision which would save such situations. There is nothing in the Act to show that if possession is taken illegally, such possession may become legal under any circumstance. Since the proceedings have lapsed, the Collector does not have the jurisdiction to proceed against the property and take possession of the land. 16. The possession which is referred to in S.16 can only constitute possession taken legally from the land owner, pursuant to an award which is passed legally, strictly in accordance with S.11A. Any steps or proceedings taken for delivery of possession, after the acquisition proceedings have lapsed under S.11A, cannot be upheld as legal. Therefore, taking of possession of land in this case, if any, is not legal and consequent to taking of such possession, the property cannot be said to have vested in the Government. The title has to be deemed to be continuing with the land owner himself. 17. Therefore, any paper possession of the petitioners' land, taken by the Government will not entitle the Government to keep the land in its possession, adverse to the interest on the title holder. Legal possession continues with the owner of the property, irrespective of any alleged delivery of property in favour of the Government. The owner will not lose any right over the property and if at all the Collector has taken possession of land, he will not be entitled to continue in possession of the property. If at all, the Government has taken possession, it has no right to retain such possession of the property taken illegally from the land owner, after the lapse of the acquisition proceedings. 18. The learned Government Pleader placed reliance upon a decision reported in Ranbir Kaur v. Sital Parkash, AIR 1986 P & H 185 in support of his arguments. If at all, the Government has taken possession, it has no right to retain such possession of the property taken illegally from the land owner, after the lapse of the acquisition proceedings. 18. The learned Government Pleader placed reliance upon a decision reported in Ranbir Kaur v. Sital Parkash, AIR 1986 P & H 185 in support of his arguments. On going through the dictum laid down in the above decision, it is clear that the effect of S.11A of the Act was not considered by the Full Bench in the said decision. Whatever has been stated in the said decision relate only to an award passed legally and within the time stipulated under S.11A of the Act. The said decision is not applicable to the facts of this case. 19. Learned counsel for the petitioner, however, cited a decision reported in Satendra Prasad Jain and Others v. State of U.P. and Others, 1993 KHC 987 : 1993 (4) SCC 369 : AIR 1993 SC 2517 : JT 1993 (5) SC 385 wherein it is held as follows: "...... In the ordinary case, therefore, when Government fails to make an award within two years of the declaration under S.6, the land has still not vested in the Government and its title remains with the owner, the acquisition proceedings are still pending and, by virtue of the provisions of S.11A, lapse..." 20. In the above circumstances, I hold that the awards passed as Exts. P5 series are not in accordance with the provisions of the Act and hence the possession of the property, if any, taken from the petitioners will also be not in accordance with law. If possession of property is taken by the fourth respondent, such possession shall be handed over back to the petitioners forthwith. It is declared that Ext. P5 series awards and Exts. P6 to P9 notices are illegal and hence quashed. 21. Learned Government Pleader submitted that even if the acquisition proceedings lapsed, there will be no bar for taking up further acquisition proceedings. There is no doubt that even if the acquisition proceedings have lapsed by virtue of S.11A of the Act, there can be no bar for the authorities to acquire any property or the very same property by virtue of the provisions contained in the Act in accordance with law. There is no doubt that even if the acquisition proceedings have lapsed by virtue of S.11A of the Act, there can be no bar for the authorities to acquire any property or the very same property by virtue of the provisions contained in the Act in accordance with law. But if an award is passed after the statutorily prescribed time, the entire land acquisition proceedings will lapse and hence taking of possession of property etc. pursuant to such awards will be invalid and illegal. A particular period is prescribed, as per the statute taking into consideration the delay in passing awards and the probable difficulties which the land owners may have to face because of delay in passing of awards. 22. It is needless to say that there will be escalation in the land value of the property and owner of property may not get adequate compensation. Once the proceedings have been initiated, owners may not be in a position to put the property to proper use and they will be the losers. The Legislature has taken into account, the probable difficulties and loss which the land owners may face because of the delayed passing of the award. That must be the reason why, though no time was prescribed for passing of the award, S.11A of the Act was introduced into the Act by an amendment (vide the Land Acquisition Amendment Act, 1984). The reasons and objects attached to the bill state, "the pendency of acquisition proceedings for long periods often causes hardship to the affected parties and renders unrealistic the scale of compensation offered to them". With this object in mind that the legislature has brought in S.11A into the Act, and accordingly the award is to be passed within a period of two years from the date of publication of the declaration under S.6 of the Act, failing which, the entire proceedings shall lapse. (vide Kaliyappan v. State of Kerala, 1988 KHC 608 : 1981 (1) SCC 113 : 1988 (2) KLT 937 : AIR 1989 SC 239 cited by learned counsel for petitioners). (vide Kaliyappan v. State of Kerala, 1988 KHC 608 : 1981 (1) SCC 113 : 1988 (2) KLT 937 : AIR 1989 SC 239 cited by learned counsel for petitioners). In the above circumstances, I make it clear that though the awards are illegal and the taking possession of the property pursuant to such awards is also illegal, this will not bar the Government to take appropriate steps and initiate proceedings under the Land Acquisition Act for acquisition of the same property in accordance with law. This writ petition is allowed.