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State of Karnataka & Ors Vs. B.S. Nanjundaiah [1996] INSC 46 (11 January 1996)

Ramaswamy, K.Ramaswamy, K.G.B. Pattanaik (J)

CITATION: JT 1996 (1) 631 1996 SCALE (1)625

ACT:

HEAD NOTE:

O R D E R

Leave granted.

We have heard the counsel on both sides.

This appeal by special leave arises from the order of the High Court of Karnataka made on February 15, 1991 in W.P. No.9544/86. Notification under Section 4(1) of the Land Acquisition Act was initially c on December 6, 1973. The declaration under Section 6 was published on February 3, 1975. Writ Petition No. 10402/77 was filed in High Court challenging the notification under Section 4(1)and the declaration under Section 6 questioning the act of the Government in dispensing with the enquiry under Section 5-A.

The Writ Petition was allowed by the High Court on July 27, 1984 directing the appellant to conduct an enquiry under Section 5-A from the stage where the objections were filed by the respondent. Thereafter, the copy of the recite was received by the Land Acquisition Officer of January 19, 1985. Notice under Section 5-A was given on February 20, 1985. and after giving reasonable opportunity to the respondent, enquiry was concluded and the Land Acquisition Officer, submitted his report to the Government on July 31, 1985, The respondent again filed the writ petition in the High Court on June 7, 1986 challenging the validity of the notification under Section 4(1) and the declaration under Section 6.

The High Court in the impugned judgment has held that from December 6, 1973 till October 11, 1977, there was on order of Court staying the proceedings by which date the three year's period prescribed under Section 6(1) of time and the declaration under Section 6 come to be published on April 10. 1986. Consequently, the notification under Section 4(1) and the declaration under Section 6 stood lapsed by operation of Section 11-A of the Act, amended by Act 68 of 1984.

It is contended by the counsel for the appellants that the view of the high court is clearly illegal. In view of the fact that the notification under Section 6 was quashed giving liberty the Government to proceed with the acquisition from that stage and consider the objections raised by the respondent, the declaration under Section 6 came to be published within two years thereafter. Therefore, the declaration under Section 6 had not lapsed.

Consequently, section 11-A has no application. it is contended for the respondent that as pointed out by the High Court from 1973 to 1977, there was no impediment for the appellants to have the declaration published under Section 6 within three years since the declaration was not published, the High Court was fight in holding that the land acquisition proceedings shall stand lapsed.

Having considered the respective contentions, the question arises whether the view taken by the High Court is correct in law. It is true that from the date of the notification published under Section 4(1) till October 11, 1977 there was no stay granted by the Court and the three years period had lapsed. But, unfortunately, the point was not convassed before the High Court in the first proceedings. Consequently, by operation of explanation (iv) to Section 11,it was open to the respondent to raise that contention. But since that point was not pressed for consideration by constructive res judicata, the question is no longer to be considered by the High Court.

It is seen that the Land Acquisition Officer received the record on January 19, 1985. He issued the notice under Section 5-A to consider the objections filed by the respondent on February 20, 1995. Thereby there is a delay of one month between the date of receiving the record and the date of issuing the notice. Thereafter the proceedings went on from time to time at the instance of the parties.

Ultimately,the arguments were concluded on July 31, 1985.

Therefore, the limitation, again begin to run from August 1, 1985. The declaration was published on April 10,1986. therefore, the declaration, after the order was set aside, in the proceedings of the first writ petition was published within three years from the date of the order. By operation of Clause (1) of section 6 the declaration has been published within three years from the date of the order passed by the High Court. Consequently, the operation of section 11-A is not attracted to the facts of this case. As a result, neither the notification under Section 6 shall stand lapsed. The appellants are directed to conduct and conclude the award enquiry as expeditiously as possible, preferably within a period of six months from the date of the receipt of this order.

The appeal is accordingly allowed. No costs.

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