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2012 DIGILAW 3756 (MAD)

Jambu Raghavan & Co. Pvt. Ltd. v. State of T. N.

2012-08-30

ELIPE DHARMA RAO, M.VENUGOPAL

body2012
Elipe Dharma Rao, J. :-In this writ appeal, we are called upon to decide the legal question as to 'whether a fresh limitation period will start running for passing declaration under Section 6 of the Land Acquisition Act (hereinafter referred to as the Act), when once the notification under Section 4(1) is re-validated?' 2. This is the second round of litigation initiated by the appellant challenging the land acquisition proceedings. The petitioner is the owner of 3 acres and 21.5 cents in S.F.Nos.345/2, 346/2 and 347/2 in Telungupalayam village, Coimbatore District. A notification under Section 4(1) of the Act was issued on 1.9.1982, notifying acquisition of the said lands along with other lands for construction of houses under Anna Nagar Neighbourhood scheme. After conducting enquiry under Section 5-A of the Act, Section 6 Declaration was published on 23.8.1985 i.e. seven days prior to the period of limitation of three years (since the acquisition is prior to coming into being of Act 68/84). 3. The appellant/petitioner challenged the said acquisition proceedings by filing W.P.No.13414 of 1989 and a learned single Judge of this Court by the order dated 8.12.1998 has quashed the entire acquisition proceedings on the ground that the requisites of Rule 3(b) of the Tamil Nadu Land Acquisition Rules are not complied with by the authorities. Aggrieved, an appeal in W.A.No.299 of 2000 was filed by the respondents/authorities. A Division Bench of this Court, by the judgment dated 7.9.2000 has allowed the appeal in part, modifying the order of the learned single Judge. The Division Bench, while re-validating Section 4(1) notification, has set aside the declaration and the consequential order of Award by the judgment dated 7.9.2000. For better understanding and for ready reference, we extract hereunder the result part of the judgment of the Division Bench: "4. We have already clarified that what was found fault was the procedure, in not supplying the copy of the replies by the acquiring body on the objectors as also passing of the Award without issuing the notices under Section 9 and 10 of the Act. Therefore, it is clear that the whole proceedings could not be said to have been quashed and what could be quashed is only the declaration under Section 6 of the Act and all further proceedings including the Award passed. We hold accordingly. Therefore, it is clear that the whole proceedings could not be said to have been quashed and what could be quashed is only the declaration under Section 6 of the Act and all further proceedings including the Award passed. We hold accordingly. The order shall be modified to the extent that the declaration under Section 6 of the Act and all further proceedings shall be treated to be quashed, saving the Notification under Section 4(1) of the Act. 5. We dispose of the appeal in the light of the above observation." 4. After this judgment of the Division Bench, enquiry under Section 5-A of the Act was contemplated by the Authorities by issuing notice on 23.4.2001 and it is seen from the materials placed on record that in spite of notices, the appellant did not attend the enquiry, but has sought for adjournments on one ground or other. Pending publication of Declaration, the appellant/petitioner has come forward to file the present writ proceedings on 31.8.2001 in W.P.No.16642 of 2001 contending that Notification under Section 4(1) was issued on 17.8.1982 and was published in the Government Gazette on 1.9.1982 and thus the Declaration under Section 6(1) should have been made on or before 1.9.1985 and in the instant case, the Declaration was actually made on 23.8.1985, just seven days prior to the period of limitation and thereafter, this declaration was struck down by the learned single Judge on 8.12.1998 along with Section 4(1) Notification, but the Notification under Section 4(1) was revalidated on 7.9.2000 by the Division Bench and hence, the limitation for making the Declaration was only for a further period of seven days i.e. only till 14.9.2000 and inasmuch as the Declaration has not been made within the prescribed date of 14.9.2000, the land acquisition proceedings abate and are liable to be quashed on that ground. 5. A learned single Judge of this Court, relying on a judgment of the Honourable Supreme Court in Smt.Bailamma (dead) and others vs. Poornaprajna House Building Cooperative Society and others [ (2006) 2 SCC 416 ] delivered while dealing with Section 11-A of the Act, rejected the claim of the petitioner/appellant. 5. A learned single Judge of this Court, relying on a judgment of the Honourable Supreme Court in Smt.Bailamma (dead) and others vs. Poornaprajna House Building Cooperative Society and others [ (2006) 2 SCC 416 ] delivered while dealing with Section 11-A of the Act, rejected the claim of the petitioner/appellant. The learned single Judge, while placing reliance on the above judgment of the Honourable Apex Court, has observed in Para No.7 of the order that 'the explanation 1 to Section 6 is almost similar to explanation to Section 11A of the Land Acquisition Act, 1894'. 6. While dealing with the arguments advanced on the part of the petitioner/appellant, the learned single Judge has held in para Nos.9 and 10 as follows: "9. Therefore, in the present case, it is not the exclusion of the period during which any stay order is obtained by the parties, when the learned Judge who dealt with W.P.No.13414 of 1989. The entire proceedings including section 4(1) notification was quashed by a judgment dated 8.12.1998 and there was nothing further for the State to do in that matter. It was only after the State's Writ Appeal in W.A.No.299 of 2000 was allowed by a Division Bench vide judgment dated 7.9.2000, the Section 4(1) notification got revalidated. Therefore, it was not a question of calculating any period during which any interim stay was obtained by the parties. But the Section 4(1) notification was brought to life by the order of the Division Bench on 7.9.2000. 10. The State had published the Section 6 Declaration on 6.9.2001 despite the attempt by the petitioner to repeatedly seek adjournments and avoiding section 5A enquiry. The purpose of fixing limitation is to prevent the State from procrastinating in completing the acquisition proceedings. But the petitioners themselves cannot take advantage of their own wrong and seek to invalidate the acquisition proceedings on a technical plea, that too, by having a second round of litigation." With such observations, the learned single Judge dismissed the writ petition as misconceived. Aggrieved, the petitioner/appellant has come forward to file this writ appeal. 7. But the petitioners themselves cannot take advantage of their own wrong and seek to invalidate the acquisition proceedings on a technical plea, that too, by having a second round of litigation." With such observations, the learned single Judge dismissed the writ petition as misconceived. Aggrieved, the petitioner/appellant has come forward to file this writ appeal. 7. Mr.Vijaynarayanan, the learned senior counsel appearing for the appellant would argue that since the earlier Declaration under Section 6 was quashed by the Division Bench of this Court in the earlier round of litigation, fresh Declaration, after re-validating Section 4(1) Notification by the Division Bench of this Court, by the judgment dated 7.9.2000, must be issued within the same limitation period prescribed under the first proviso to Section 6(1) of the Act. The learned Senior Counsel would further argue that the learned single Judge has failed in not following the judgments of the Honourable Apex Court in Oxford English School vs. Government of Tamil Nadu and others [ (1995) 5 SCC 206 ] and the Constitutional Bench judgment in Padma Sundara Rao (dead) and others vs. State of Tamil Nadu and others [ (2002) 3 SCC 533 ]. The learned Senior Counsel would further argue that unfortunately, the learned single Judge has failed to consider this legal aspect and would pray to set aside the order of the learned single Judge. 8. On the contrary, the learned Special Government Pleader appearing for the respondents would argue that since the Section 4(1) notification was revalidated by the judgment of the Division Bench, automatically, new limitation time will start running and this aspect has been correctly analysed by the learned single Judge and therefore, no interference of this Court is required into the order of the learned single Judge. Accordingly, he prayed for dismissal of this writ appeal. 9. For easy reference, we shall now extract hereunder Section 6 of the Act, which reads as follows: "6. Declaration that land is required for a public purpose. Accordingly, he prayed for dismissal of this writ appeal. 9. For easy reference, we shall now extract hereunder Section 6 of the Act, which reads as follows: "6. Declaration that land is required for a public purpose. -(1) Subject to the provision of Part VII of this Act, appropriate Government is satisfied, after considering the report, if any, made under section 5A, sub-section (2), that any particular land is needed for a public purpose, or for a Company, a declaration shall be made to that effect under the signature of a Secretary to such Government or of some officer duly authorized to certify its orders and different declarations may be made from time to time in respect of different parcels of any land covered by the same notification under section 4, sub-section (I) irrespective of whether one report or different reports has or have been made wherever required under section 5A, sub-section (2); 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 (68 of 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 (68 of 1984), shall be made after the expiry of one year from the date of the 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. Explanation 1. - In computing any of the periods referred to in the first proviso, the period during which any action or proceeding 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. 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. (2) Every declaration shall be published in the Official Gazette [and in two daily newspapers circulating in the locality in which the land is situated of which at least one shall be in the regional language, and the Collector shall cause public notice of the substance of such declaration to be given at convenient places in the said locality the last of the dates of such publication and the giving of such public notice, being hereinafter referred to as the date of the publication of the declaration, and such declaration shall state the district or other territorial division in which the land is situate, the purpose for which It is needed, its approximate area, and, where a plan shall have been made of the land, the place where such plan may be inspected. (3) The said declaration shall be conclusive evidence that the land is needed for a public purpose or for a company, as the case may be; and, after making such declaration, the appropriate Government may acquire the land in manner hereinafter appearing. " 10. The law on the point 'whether fresh time of limitation will start running from the date of re-validating Section 4(1) notification' was dealt with by the Honourable Apex Court in Oxford English School vs. Government of Tamil Nadu and others [ (1995) 5 SCC 206 ]. That was a case wherein entire proceedings after the stage of Section 4(1) notification were quashed by the High Court, but while doing so, the High Court has directed that there shall be a fresh enquiry under Section 5-A of the Act in accordance with law and further directed that the enquiry shall be completed and if the Government decides to proceeded with the acquisition the Declaration shall be issued under Section 6 of the Act within six months from the date of the judgment and the award shall be passed within four months thereafter. In this factual scenario, the Honourable Apex Court has held in para No.7 as follows: "In the present case the notification under Section 4(1) was published before the commencement of the Land Acquisition (Amendment) Act, 1984 but after the commencement of the Land Acquisition (Amendment and Validation) Ordinance, 1967. In view of the above proviso the Declaration cannot be made under Section 6 in respect of any land covered by the said notification after the expiry of three years from the date of the publication of the said notification. In the present case Section 4(1) notification was published in the Tamil Nadu Government Gazette dated 8.9.1982. Undoubtedly, the notification under Section 6, dated 19.12.1983 has been made and published in the Tamil Nadu Gazette within the period of three years prescribed under the proviso. This Declaration, however, has been quashed in the present proceedings. The question is whether a fresh Declaration under Section 6 of the said Act can be made in respect of any land notified under Section 4(1) by the notification of 24.8.1982 after the expiry of three years from the date of publication of the notification under Section 4(1). The answer is clearly in the negative. 8. The respondents have relied upon Explanation 1 to the proviso which provides that in computing the period of three years the period during which any action or proceeding to be taken pursuant to the notification under Section 4(1) is stayed by an order of court shall be excluded. In the case of the appellant such a stay was obtained by them from the High Court of Madras on 20-4-1987. This was long after the expiry of the period of three years provided under the proviso to Section 6. Even if one excludes the period during which the subsequent stay operated, the issuance of a fresh Declaration under Section 6 would be clearly beyond the period of three years prescribed under the proviso to Section 6. Since the prohibition on issuance of a declaration under Section 6 after the expiry of three years from the date of the publication of the notification under Section 4(1) is absolute, the High Court could not have given any direction permitting issuance of the declaration under Section 6 within six months from the date of its judgment." 11. Since the prohibition on issuance of a declaration under Section 6 after the expiry of three years from the date of the publication of the notification under Section 4(1) is absolute, the High Court could not have given any direction permitting issuance of the declaration under Section 6 within six months from the date of its judgment." 11. This view of the Honourable Apex Court was approved in the Constitution Bench judgment in Padma Sundara Rao (dead) and others vs. State of Tamil Nadu and others [ (2002) 3 SCC 533 ]. This was also a case wherein a notification under Section 4(1) of the Land Acquisition Act was issued and a Declaration under Section 6(1) of the Act was made prior to the substitution of the existing proviso to Section 6(1) by Act 68 of 1984 w.e.f. 24.8.1984 and thus the notification under Section 4(1) was issued before the commencement of the Land Acquisition (Amendment) Act, 1984, but after the commencement of the Land Acquisition (Amendment and Validation) Ordinance, 1967 and the question for consideration therein was 'whether after quashing of the notification under Section 6, fresh period of limitation was available to the State Government to issue another notification under Section 6'. Such a subsequent notification issued under Section 6 was questioned before this Court (Madras High Court) as being barred by limitation and this Court, relying on the decision of a three Judge Bench in N.Narasimhaiah vs. State of Karnata [ (1996) 3 SCC 88 ] held that the same was validly issued. In appeal, a two Judge Bench of the Honourable Supreme Court, noticing cleavage in views expressed in several decisions rendered by Benches of three Judges, referred the matter to a Bench of three Judges and by order dated 30.10.2001, the matter was directed to be placed before a Constitution Bench and that is how the matter came before the Constitution Bench. It was contended on behalf of the appellant therein that the Declaration under Section 6 has to be issued within the specified time and merely because the Court has quashed the Declaration concerned, an extended time period is not to be provided. The Constitution Bench of the Honourable Apex Court has held as follows: "16. .... It was contended on behalf of the appellant therein that the Declaration under Section 6 has to be issued within the specified time and merely because the Court has quashed the Declaration concerned, an extended time period is not to be provided. The Constitution Bench of the Honourable Apex Court has held as follows: "16. .... If the legislature intended to give a new lease of life in those cases where the declaration under Section 6 is quashed, there is no reason why it could not have done so by specifically providing for it. The fact that the legislature specifically provided for periods covered by orders of stay or injunction clearly shows that no other period was intended to be excluded and that there is no scope for providing any other period of limitation. The maxim actus curiae neminem gravabit highlighted by the Full Bench of the Madras High Court has no application to the fact situation of this case. 17. The view expressed in Narasimhaiah case (A.Narasimhaiah vs. State of Karnataka (1996) 3 SCC 88 ) and Nanjudaiah case (State of Karnataka vs. D.C.Nanjudaiah (1996) 10 SCC 619 ) is not correct and is overruled while that expressed in A.S. Naidu case (A.S.Naidu vs. State of Tamil Nadu SLP (C) Nos. 11353-55 of 1988) and Oxford case (Oxford English School vs. Government of Tamil Nadu (1995) 5 SCC 206 ) is affirmed." 12. Therefore, in view of the authentic pronouncement of the Honourable Apex Court in the above judgments, we have no hesitation to hold that 'where declaration under Section 6 is quashed by Court, fresh declaration must be issued within the same limitation period prescribed under the first proviso to Section 6(1) and no fresh lease of life or limitation can be claimed by the Government'. Therefore, in the case on hand, admittedly, since the earlier Declaration was passed just seven days prior to the closure of the limitation of three years (being the case prior to the commencement of Act 68/84), once the Section 4(1) notification was re-validated by the Division Bench, the Declaration under Section 6 should have been passed only within that left out time of seven days. Since in the case on hand, these legal parameters have not been followed by the respondents, undoubtedly, the entire land acquisition proceedings are vitiated. 13. Since in the case on hand, these legal parameters have not been followed by the respondents, undoubtedly, the entire land acquisition proceedings are vitiated. 13. With regard to the observation of the learned single Judge - that 'the explanation 1 to Section 6 is almost similar to explanation to Section 11A of the Land Acquisition Act, 1894 - placing reliance on a judgment of Honourable Apex Court in Smt.Bailamma (dead) and others vs. Poornaprajna House Building Cooperative Society and others [ (2006) 2 SCC 416 ] pertaining to Section 11-A of the Act (Period within which an Award has to be made), it must be mentioned that the Honourable Apex Court in its latest pronouncement in Jeet Singh and another vs. Union of India and others [ (2011) 13 SCC 534 ], in para No.14 has held that Sections 6 and 11-A of the Act are quite distinct and different. The said paragraph is extracted hereunder: "14. The purpose behind enactment of Section 6 and Section 11-A is different though the language used in both the sections is similar. Section 6 pertains to pre-acquisition stage whereas Section 11-A pertains to post-acquisition stage, the stage at which the award is to be made by the Collector. In our opinion, once Section 4 notification is issued, necessary declaration under Section 6 must be made as soon as possible for the reasons that the owner of the land would not be in a position to use the land as per his desire because of the uncertainty prevailing prior to declaration made under Section 6 of the Act. A prudent owner would not put up any construction on the land and normally no one would come forward to purchase the land also as there would be possibility of the land being acquired. Therefore, declaration under Section 6 is required to be made as soon as possible." 14. In view of the above judgment of the Honourable Apex Court, we are not able to appreciate the reasoning adopted by the learned single Judge - to oust the claim of the appellant - by relying on a judgment pertaining to Section 11-A of the Act. 15. In view of the above judgment of the Honourable Apex Court, we are not able to appreciate the reasoning adopted by the learned single Judge - to oust the claim of the appellant - by relying on a judgment pertaining to Section 11-A of the Act. 15. It is seen from the records that the appellant did not participate in the second round of enquiry proceedings under Section 5-A of the Act and when the matter is pending before the Authority concerned to pass Declaration, he has come forward to initiate the present writ proceedings. Because of this, the learned single Judge has commented that the appellant cannot be permitted to take advantage of his own mistake. It is no doubt true that the appellant has avoided the enquiry proceedings under Section 5-A of the Act for some reason or other, by getting adjournments. But, since the very action of the authorities has been initiated presuming fresh lease of limitation, since the fresh notice under Section 5A of the Act was issued on 23.4.2001, much after the expiry of the limitation period, following the above judgments of the Honourable Apex Court, we have no hesitation to hold that the case of the respondents has no legs to stand before us and thus gets a legal debacle. 16. At this stage, it is also to be mentioned that during the course of arguments, the learned senior counsel appearing for the appellant has placed before us a communication emanated from the Housing Board that out of the lands acquired by the Government for Anna Nagar Neighbourhood Scheme, only the lands in Veerakeralam, Goundampalayam and Vadavalli are put to complete use and the lands acquired and given to Tamil Nadu Housing Board in Telungupalayam village are kept idle still. This fact has no bearing to decide the case on hand as it is not a proceeding initiated under Section 48-B of the Act so as to consider this aspect by us. Therefore, the said factum will not be a supporting factor for the case of the appellant. For all the above reasons, this writ appeal is allowed. The order of the learned single Judge is set aside. The entire acquisition proceedings stand quashed. Therefore, the said factum will not be a supporting factor for the case of the appellant. For all the above reasons, this writ appeal is allowed. The order of the learned single Judge is set aside. The entire acquisition proceedings stand quashed. However, if the respondents/Authorities still feel that the lands are required for any other public purpose, it is always left open for them to initiate fresh acquisition proceedings, in the manner known to law. No costs.