P. Chinnanna
Vs. State of A.P [1994] INSC 418 (8 August 1994)
Venkatachala
N. (J) Venkatachala N. (J) Ramaswamy, K.
CITATION:
1994 SCC (5) 486 JT 1994 (5) 320 1994 SCALE (3)688
ACT:
HEAD NOTE:
The
Judgment of the Court was delivered by VENKATACHALA, J.- These are the appeals
in which special leave is granted under Article 136 of the Constitution.
They
are directed against the common judgment dated 3-8-1993 of a Division Bench of the High Court of Andhra Pradesh by
which Writ Appeal Nos. 1389 of 1991 and 608 of 1993 filed against the orders
dated 10-3-1989 and 30-3-1989 of a learned Single Judge of the same court in Writ
Petition Nos. 13439 of 1986 and 7689 of 1989 respectively refusing to quash
acquisition of certain land acquired for a public purpose under the Land
Acquisition Act, 1894 (the L.A. Act), are dismissed.
2.
That on 23-4-1976 Bhainsa Regulated Market Samiti made a request to the State
Government to acquire a compact block of 6 acres and 29 guntas of land in
Survey Nos. 342/1A, 342/IB and 343 of Bhainsa Village needed for extension of
its existing Cotton Market Yard. That on 6-7-1977 the State Government which
regarded the said request to acquire land, to be a case involving urgency,
invoked its power under sub- section (4) of Section 17 of the L.A. Act and made
an order directing that the provisions of Section 5-A of the L.A. Act shall not
apply. Further, that on 21-7-1977, it got published in the State
Gazette a notification under Section 4(1) of the L.A. Act and a declaration
under Section 6(1) thereof, in respect of the said land, as was required under
sub-section (4) of Section 17 of the L.A. Act. Thereafter, the District
Collector who got published the notice mentioned in Section 9(1) of the L.A.
Act took possession of the said acquired land on 10-7-1978 as provided for in
sub- section (1) of Section 17 of the L.A. Act. Such taking of possession made
the said land vest absolutely in the State Government free from all
encumbrances as provided for in the said sub-section itself. Thereupon, the
District Collector gave possession of the said acquired land to the Bhainsa
Regulated Market Samiti for whom it had been acquired. When the said 6 acres
and 29 guntas of land, had been so acquired and its possession was taken by the
Collector resulting in its vesting in the State, the appellants in the present
appeals filed WP Nos. 8433 of 1978 and 3416 of 1978 in the High Court of Andhra
Pradesh and sought the quashing of Section 4(1) notification and 6(1)
declaration insofar as they related to 1 acre 29 guntas of land claimed to have
been purchased by them in April 1977.
489 WP
No. 3416 of 1978 was disposed of by the High Court by a judgment dated 23-8-1982 which read thus:
"In
this writ petition the acquisition of Ac. 1-29 guntas in S. No. 342/IA of Bhainsa Village is challenged by the writ petitioners.
This
land is sought to be acquired for the purpose of extention of agriculture
market yard of that place. The gazette notification was made under Section 4(1)
of the Land Acquisition Act on 21-1-1977 and
in view of the alleged urgency, Section 5-A enquiry has been dispensed with.
That is to say, possession has been taken nearly a year after Section 4(1)
notification was published. This circumstances is alone sufficient to show that
the invoking of the emergency clauses to dispense with Section 5-A enquiry is
done mechanically.
In
these circumstances, the order made on 21-7-1977 dispensing with Section 5-A
enquiry is set aside and there will be a direction to the Revenue Divisional
Officer, Nirmal, Respondent 3 to give notice to the petitioners and hold
Section 5-A enquiry and the proceedings will commence from that point.
The
writ petition is allowed as indicated above, but in the circumstances without
costs." Again Writ Petition No. 8433 of 1978 was disposed of on the same
date by the High Court by a judgment which reads thus:
"No
orders are necessary."
3. An
enquiry under Section 5-A of the L.A. Act appears to have been held pursuant to
the said judgment of the High Court in Writ Petition No. 3416 of 1978 and a
decision taken by the State Government, on the basis of the report of the
enquiry to the effect that the land concerned shall be acquired. Thereafter, on
29-11-1984, a declaration has come to be made under Section 6(1) of the L.A.
Act in respect of the said 1 acre 29 guntas of land and the notification of
declaration is got published on the same date in the State Gazette.
4. One
of the appellants who had, as other appellants, purchased a building plot out
of the said land respecting which the declaration dated 29-11-1984 was made,
filed Writ Petition No. 13439 of 1986 in the High Court challenging the
validity of the said declaration made on the basis of the opinion of the
Government, formed on consideration of Section 5-A enquiry report. That writ
petition was dismissed by a learned Single Judge of the High Court on 10- 3-1989. Despite the dismissal of that writ petition, all
other appellants appear to have joined and filed Writ Petition No. 7689 of 1989
on the very grounds on which dismissed writ petition had been filed. But that
writ petition also has come to be dismissed subsequently. Both the writ
petitions had been dismissed by the learned Single Judge concerned finding that
the grounds raised in support of those petitions lacked in merit. Since the
appellants who were the petitioners in the said writ petitions had filed Writ
Appeal Nos. 1389 of 1991 and 608 of 1993 against the orders dated 10-3-1989 and 30-3-1989 by
which their writ petitions were dismissed, 490 a Division Bench of the High
Court heard those appeals on 3- 8-1993. At
the hearing of the appeals, a fresh ground is said to have been raised in
support of the appeals. The fresh ground was that Section 6(1) declaration made
on 29-11-1984 and under challenge, had not been made within the period allowed
by the first proviso to Section 6(1) thereof, inserted into the L.A. Act by the
L.A. (Amendment) Act, 1984, and hence was liable to be quashed. However, the
Division Bench of the High Court, by its judgment delivered on the same day, dismissed
the appeals, rejecting, inter alia, the fresh ground urged in support of the
appeals at the hearing thus:
"The
learned counsel for the appellants also submits that in any view of the matter,
the declaration under Section 6 published on 24-11-1984 is beyond three years. In fact, this plea has not been
taken in the writ petitions. As already stated, when Writ Petition No. 3416 of
1978 was filed, stay of further proceedings was granted. Finally, the writ
petition was allowed on 23-8-1982. The respondents must know about
the said order and after receipt of a copy of the judgments they have conducted
enquiry and also published the draft declaration. Under these circumstances, it
cannot be said that the declaration was published beyond the time allowed under
law."
5. The
appellants in the said writ appeals, who are the appellants in the present
appeals by special leave have questioned the correctness of the judgment of the
Division Bench of the High Court made in the writ appeals. The grievance of the
appellants in the present appeals, as ventilated before us by their learned
counsel, is confined to non-acceptance by the Division Bench of the High Court,
the fresh ground argued before it against declaration made on 24-11-1984 under
Section 6(1) of the L.A. Act as that was made beyond the time allowed under the
first proviso to Section 6(1)inserted by the L.A. (Amendment) Act, 1984.
The
ground urged in support of the present appeals by the learned counsel for the
appellants, to be precise, is that when Section 6(1) declaration impugned by
them was made on 24-11-1984 while notification under Section 4(1) concerned was
published on 21-7-1977, the declaration had been made beyond the period
envisaged in the proviso and hence it was void and liable to be quashed. We may
say, it once, that the ground so urged in support of the present appeals would
merit acceptance, if the judgment dated 23-8-1982 of the High Court in Writ
Petition No. 3416 of 1978 had the effect of restoring ownership of 1 acre 29 guntas
of land to the appellants and reviving Section 4(1) notification which had been
published on 21-7-1977 in respect of that land also, as is assumed on behalf of
the appellants, for the reasons, which we shall presently, state.
6.
Section 6(1) of the L.A. Act and the first proviso inserted under the L.A.
(Amendment) Act, 1984 on which reliance is placed in support of the ground
urged by learned counsel for the appellants in support of their appeals reads:
"...
when the appropriate Government is satisfied, after considering the report, if
any, made under Section 5-A, sub-section (2), that any particular land is
needed for a public purpose, or for a company, a 491 declaration shall be made
to that effect under the signature of a Secretary to such Government or of some
officer duty 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 (1), irrespective of
whether one report or different reports has or have been made (wherever
required) under Section 5-A, 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, 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 the publication of the
notification:
Provided
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."
7. As
becomes clear from a reading of the said proviso, there is a prohibition
imposed in the matter of making a declaration under Section 6(1) in respect of
any particular land governed by the notification under Section 4 sub- section
(1), beyond the respective periods mentioned in clauses (i) and (ii) thereof.
However, from the Explanation 1 to the said proviso it becomes clear that
either of the periods referred to in clauses (i) and (ii) of the proviso could
be computed by excluding the period during which any action or proceeding to be
taken in pursuance of the notification issued under Section 4 sub-section (1)
was stayed by an order of court.
8.
When we come to the facts of the present case which had given rise to Writ
Petition Nos. 3416 of 1978 and 8433 of 1978 in the High Court there was no
order made by court which stayed the taking of any action or proceeding
pursuant to Section 4(1) notification concerned, in that Section 6(1)
declaration of the land concerned was made, possession of such land was taken
under Section 17(1) resulting in the vesting of the land in the Government and
possession of that land in turn had been handed over to the Bhainsa Regulated
Market Samiti for whom the same had been acquired, even prior to the filing of
the writ petitions. Insofar as clause (ii) of the proviso is concerned, that
cannot apply since the notification under Section 4 sub-section (1) concerned
published on 21-7-1977 could not be regarded as that made
after coming into force of the Land Acquisition (Amendment) Act, 1984. Then, as
is assumed on behalf of the appellants in the present appeals, 492 Section 6(1)
declaration made on 21-7-1977 in respect of the appellants' land, taking the
possession of that land under Section 17(1) and its vesting in the State
Government and the handing over of possession of that land to the Bhainsa
Agricultural Market Committee, all of which had taken place before the filing
of WP Nos. 3416 of 1978 and 8433 of 1978, are regarded as set aside by the
judgment of the High Court dated 23-8-1982 in WP No. 3416 of 1978 and Section 4
sub- section (1) notification published on 21-7-1977 of the appellants' land is
regarded as having been revived by that judgment, the ground urged on behalf of
the appellants that Section 6(1) declaration dated 24-11-1984 made in respect
of the appellants' land was prohibited under clause (1) of the proviso, is well
founded and merits acceptance. It would be so for the reason that making of a
declaration under Section 6(1) in respect of any particular land covered by a
notification published under Section 4(1) after the commencement of the Land
Acquisition (Amendment and Validation) Ordinance, 1967 (1 of 1967) but before
the commencement ofthe Land Acquisition (Amendment) Act, 1984 after the expiry
of 3 years is clearly prohibited under clause (i) of the first proviso to
Section 6(1) of the L.A.
Act
and the impugned declaration dated 24-11-1984 has been in fact made long after
the expiry of 3 years' time referred to in clause (1) of the first proviso,
after the publication of Section 4 sub-section (1) notification on 21-7-1977.
9.
But, when Section 5-A enquiry is made and Section 6(1) declaration is made,
only on the assumption that the judgment dated 23-8-1982 of the High Court in
WP No. 3416 of 1978 had set aside the earlier Section 6(1) declaration made in
respect of the same land and restored the ownership of the said land which had
vested absolutely in the State Government under Section 17(1), to the
appellants, and revived Section 4(1) notification published on 21-7-1977, while
in fact the said judgment had not done so, there arises no need to void the
impugned declaration which had not brought about any legal consequence. The
reasons as to how and why Section 6(1) declaration and the steps taken for
taking possession of the land under Section 17(1) and its vesting in the State
and giving possession of the land to the Samiti for which it was acquired stood
unaffected by the judgment dated 3-8-1982 in WP No. 3416 of 1978 are not far to
seek. Section 17(1) of the L.A. Act contains a provision which confers on the
appropriate Government, special powers in relation to the acquisition of land
in case of urgency.
Further,
sub-section (4) of Section 17 empowers the appropriate Government to direct
that the provisions of Section 5-A shall not apply. This sub-section says when
such direction is given,, a declaration may be made under Section 6 in respect
of the land concerned at any time after the date of publication of the
notification under Section 4 sub-section (1). However, when Section 5-A is made
not to apply to acquisition of a land, the appropriate Government can publish a
notification under Section 4 sub-section (1) if not already published and then
make a declaration under Section 6(1). When once Section 6(1) declaration is
made, by operation of sub-section (3) of Section 6, such declaration becomes
conclusive evidence 493 that the land is needed for a public purpose or of a
company, as the case may be, and after making such declaration appropriate
Government may acquire the land in the manner appearing in the subsequent
provisions of the L.A. Act. Insofar as the land to be acquired pursuant to the
direction of the appropriate Government under sub- section (4) of Section 17
which makes Section 5-A inapplicable, sub-section (1) of Section 17 is required
to be followed for the purpose of acquisition of the land concerned. That
provision reads thus:
"17.
(1) In cases of urgency, whenever the appropriate Government so directs, the
Collector, though no such award has been made, may, on the expiration of fifteen
days from the publication of the notice mentioned in Section 9, sub-section
(1), take possession of any land needed for public purpose. Such land shall
thereupon vest absolutely in the Government, free from all encumbrances."
10.
The said provision enables the appropriate Government to take possession of the
land concerned on the expiration of 15 days from the publication of the notice
mentioned in Section 9 sub-section (1) notwithstanding the fact that no award
has been made in respect of it. When the possession of the land concerned is
once taken as provided for there under such land is made to vest absolutely in
the Government free from all encumbrances. It must be noted here that taking
possession of the land concerned and its vesting absolutely in the Government
free from all encumbrances does not depend upon an award to be made under
Section 11, making of which award alone in the case of ordinary acquisition of
land could have empowered the Collector to take possession of the land under
Section 16 and the taking of which possession would have made the land vest
absolutely in the Government free from all encumbrances. As seen from the
judgment dated 23-8- 1982 of the High Court in WP No. 3416 of 1978, taking
possession of the appellants' land along with land of others by the Collector
on 10-7-1978 under Section 17(1) is, in fact, made the basis for its holding
that invoking of urgency clause to dispense with Section 5-A enquiry was made
by the Government mechanically. No doubt, when the High Court took the view
that acquisition of the land concerned under Section 17 of the Act was made
pursuant to an order of the Government without application of its mind in the
matter of making Section 5-A not to apply, it was open to it to set aside or
quash the subsequent acquisition proceedings except Section 4(1) notification
which had followed and restore the ownership of the land to the appellants'
land if it had to order fresh enquiry on the basis of Section 4(1)
notification. Such a setting aside or quashing was inevitable because the
acquisition proceedings had been completed under Section 17 and the land had
vested in the State Government, inasmuch as, without setting aside that vesting
of the land in the State Government and restoring the land to the appellant-owners,
hat land was unavailable for subsequent acquisition by following the procedure
under Section 5-A, Section 6, Section 11 and Section 16.
Thus
in the circumstances of the case in respect of the land of the appellants, when
494 publication of Section 4(1) notification was made on 21-7- 1977, when
declaration under Section 6 was published on 21-7-1977 and taking possession of
that land under Section 17(1) by the Collector was made on 10-7-1978 and the
vesting in the State Government of that land had occurred on that day, setting
aside by the judgment of the High Court in WP No. 3416 of 1978 of merely the
direction given by the Government relating to non applicability of Section 5-A
to the land, given on 7-7-1977, in our view, did not enable to Court to order
the starting of fresh proceedings for acquisition of the land concerned under
Section 5-A, inasmuch as, that land concerned on Section 4(1) notification had
already become the land of the Government.
In
this state of facts, when the previous acquisition of the land of the
appellants made under Section 17 of the Act did never stood affected. Section
5-A enquiry held and subsequent declaration made were superfluous proceedings
which were inconsequential. Hence, we feel that there is no need to set aside
the impugned declaration inasmuch as the earlier acquisition was complete and
had resulted in vesting of the land in the State Government and there was no
land available for acquisition in the subsequent proceedings which have been
carried pursuant to the judgment of the High Court made in WP No. 3416 of 1978.
Therefore, in the stated facts, although we find that no need arises to declare
the impugned declaration as void we clarify that the earlier proceedings which
had taken place in respect of the appellants' land, resulting in its vesting in
the State Government free from encumbrances, has stood unaffected and any award
made by the Collector or be made by him under the L.A. Act shall be regarded as
that based on earlier acquisition proceedings.
11. We
may, however, state that though we have examined the fresh ground of challenge
in respect of Section 6(1) declaration raised on behalf of the appellants
nearly seven years after it had become available to them, the same had been
done solely to decide on the scope and applicability of the first proviso to
Section 6(1) and its explanation, inserted into the L.A. Act by the L.A.
(Amendment) Act, 1984. Such examination cannot, therefore, be understood as
laying down that notwithstanding the lapse of time or laches in raising a legal
ground in a proceeding under Article 226 of the Constitution or a proceeding
under Article 136 of the Constitution there is an obligation on the part of the
court concerned to examine such fresh ground. In fact, in relation to acquisition
proceeding involving acquisition of land for public purposes, the court
concerned must be averse to entertain writ petitions involving the challenge to
such acquisition where there is avoidable delay or laches since such
acquisition, if set aside, would not only involve enormous loss of public money
but also cause undue delay in carrying out projects meant for general public
good. When a fresh ground of attack to acquisition proceedings, even if it
involves purely a question of law, its entertainment cannot be governed by a
principle different from that which governs entertainment of writ petitions
before the High Court or proceedings arising there from before this Court under
Article 136 of the Constitution.
495
12. In
the result, these civil appeals are dismissed, however without costs.
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