N. Narasimhaiah
& Ors Vs. State of Karnataka & Ors Union of India & Ors [1996] INSC
79 (17 January 1996)
Ramaswamy,
K.Ramaswamy, K.Hansaria B.L. (J) Majmudar S.B. (J)
CITATION:
1996 SCC (3) 88 JT 1996 (2) 269 1996 SCALE (2)170
ACT:
HEAD NOTE:
O R D
E R
Leave
granted.
Notification
under Section 4(1) of the Land Acquisition Act [1 of 1894] [for shorts
"the Act"] acquiring total extent of 114 acres of land in Narayanpura
Village in Bangalore Districts Karnataka was published for public purpose,
viz., Defence Research & Development Organization, Government of India. The
Government, exercising the power under Section 17(4), dispensed with the
enquiry under Section 5A of the Act and the modification under Section 4(1) was
accordingly published on January
22, 1987.
Thereafter,
the declaration under Section 6 was published on June 24, 1987.
The
appellants had challenged the exercise of emergency power under Section 17(4)
by filing W.P. No.13316-20/1987 and batch in the High Court of Karnataka and
the learned single Judge quashed the order of the Government dispensing with
enquiry under Section 5A and directed as under:
"In
the result these petitions are partly allowed and the declaration dated
24.6.1987 published in the Gazette dated 6.8.1987 made under Section 6(2) of
the Act read with Section 17(1) of the Act as also that portion of the
Preliminary Notification under Section 4(1) of the Act dispensing with the
enquiry under Section 5A of the Act in so far as the petitioners lands are
concerned and also the notice under Section 9(1) of the Act dated 12.8.1987 are
quashed reserving liberty for the authorities to continue the acquisition
proceedings from the stage of preliminary notification. The petitioners shall
file their objections against the preliminary notification within 30 days from
the date of receipt of this order and they shall file their objections against
the preliminary notification within 30 days from the date of receipt of this
order and they shall present themselves before the Land Acquisition Officer -
3rd respondent on 15.7.1988 without awaiting any fresh notices from the said
officer. The Land Acquisition Officer shall hold the enquiry under Section 5A
of the Act expeditiously and complete the proceedings in accordance with
law." Thereafter, enquiry under Section 5A was conducted and declaration
thereof was published on May
13, 1989. The validity
of this declaration was again questioned in present Writ Petition No.19245/89
and batch. The learned single Judge again allowed the writ petitions. The Division
Bench by judgment dated April
22, 1993 in Writ
Appeal No.2189-97 of 1992 and batch allowed the appeals; set aside the order of
the learned single Judge and consequently upheld the declaration published
under Section 6 of the Act.
The
learned single Judge had quashed the notification in the first instance giving
liberty to the Government to conduct an enquiry under Section 5A and it was
accordingly completed within one year from the date of the judgment.
Declaration
under Section 6 was published. The declaration under Section 6 published in the
first instance was within the period prescribed under proviso to Section 6(1).
The Division Bench has held that after the declaration under Section 6 was
quashed in the first instance, the limitation of one year does not apply. It
further held that the view that the declaration under Section 6 is still
required to be published from the date of the notification under Section 4(1)
is not correct in law. lt also found that since there was no evidence on record
as to which was the last of the dates of the publications contemplated under
Section 4(1), it could not be said that the limitation under Section 6 from
that date is barred by limitation.
Shri Rama
Jois, learned senior counsel appearing for the appellants, contended that in
view of the judgments of this Court in Oxford English School vs. Government of Tamil Nadu & Ors. [(1995) 5 SCC 206]
and P. Chinnanna & Ors vs. State of A.P. Ors. [(1994) 5 SCC 486], the view of the High Court is not correct in law.
It is further contended by Sri Haresh Kaushik that if the view of the High
Court is upheld there would be two dates of notification under Section 4(1),
namely, the notification as originally published under Section 4(1) and the
date which was upheld by the Court after the publication of second declaration
under Section 6.
The
date of declaration under Section 6 will be the date for determination of
compensation under Section 23(1). That would be incongruous with the schemas of
the Act. Therefore, construction should be put up in such a way that both
Section 4(1) notification and Section 5 declaration should be consistent with
the scheme of the Act.
Shri Shukla,
the learned senior counsel appearing for the Union of India, contended that
since the validity of the notification under Section 4(1) was upheld in the
first round of the litigation, what was left to the Government was to conduct
enquiry under Section 5A in terms of the direction issued by the High Court and
on completion thereof, if the declaration is published under Section 6, the
statutory compliance is made. Notification under Section 4(1) stands upheld.
Otherwise incongruity would arise in every case. Though the notification under
Section 4(1) and the declaration under Section 6 were published within the limitation
prescribed under the Act, by act of the Court, if the declaration under Section
6 is quashed giving power to the Government to conduct an enquiry under Section
5A after giving opportunity to the claimants, declaration under Section 6 can
never be made within original period of limitation and public purpose would be
in jeopardy since under no circumstance the enquiry and declaration under
Section 6 could be done within the limitation prescribed in the first instance.
The second exercise would be rendered fruitless since by that date the
limitation prescribed under the proviso would stand expired. In a given case
though the action of the Government may be within limitation, the orders of the
Court would intervene to defeat the public purpose. He, therefore contended
that the construction would be such as would subserve not only the public
purpose but also the orders of the court would be complied with and the remedy
of judicial review would be meaningful.
Having
given careful and anxious consideration to the respective contentions, the
question is; whether the limitation prescribed under second proviso to Section
6(1) would be applicable after the notification under Section 4(1) has been
quashed by the High Court? With a view to appreciate the contentions, it is
necessary to look into the scheme of the Act. Section 4(1) of the Act gives
power of eminent domain, viz,, to acquire the land of an owner for public
purpose. Section 4(1) enables the officers to have the notification published
in the State Gazette or the local Gazette, as the case may be, amended as per
the State Amendment. The local publication in the prescribed manner enables the
authorities under the Act to take measurement etc. to determine extent of the
land required for public purpose and then to take a decision to proceed with
the accusation as contemplated in Chapter III of the Act. Under Section 17(1)
read with Section 17(2), if the State Government is of the opinion that the
lands are urgently required for taking possession of the land for public
purpose, Section 17(4) gives power to the State Government to dispense with the
enquiry under Section 5A. Thereafter Section 6 declaration is required to be
published. After 15 days from the date of expiry of the notice issued under
Section 9, the Government is empowered to take possession of the land. By
operation of Section 17(2) though award has not been made, the lands stand
vested in the State free from all encumbrances. In other cases, after the
declaration under Section 6 was published in the prescribed manner, public
purpose mentioned in Section 4(1) becomes conclusive. Award enquiry in Part III
shall be done through and after passing the award, the possession of the land
would be taken and under Section 16 of the Act the lands stand vested in the
State free from all encumbrances. Determination of compensation under Section
18 etc. would be followed by stages.
In the
light of the scheme of the Act, when the exercise of the power under Section
17(4) dispensing with enquiry under Section 5A is quashed by the Court, the
question would be whether the State is required to have the declaration
published under Section 6 within limitation prescribed under proviso to Section
6(1) of the Act? Section 6(1) reads thus :
"6.
Declaration that land is required for a public purpose.- (1) Subject to the
provisions of Part VII of this Act, 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 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, subsection (1), 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 subsection (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
further that no such declaration shall be made unless the compensation to be
awarded for such property 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
I. 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.
The
limitation, under the first proviso begins to run from the last of the date on
which the notification under Section 4(1) is published. By operation of clause
(ii) of first proviso to sub-section (1), the declaration under Section 6 shall
be published within one year from the date of the last of the dates of the
publication of the notification as required under Section 4(1) of the Act.
Explanation
I to Section 6(1) postulates that in computing the period 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 (1) is stayed by an order
of the Court, the period during which the proceedings are pending, shall be
excluded. In other words, before the declaration under Section 6 is published,
if further proceedings are stayed by an order of the Court, further action
stands interdicted, the running of limitation stops and the time occupied in
the Court proceedings should be excluded in computation of the period of
limitation mentioned in proviso to Section 6(1). After the said period is
excluded and if the declaration published is within the limitation of one year,
then necessarily the notification under Section 4(1) would remain valid.
If
that be the position, when the exercise of the power under Section 17(4)
dispensing with enquiry under Section 5A is quashed by the Court and liberty is
given to the State to proceed further in accordance with law, i.e., to conduct
enquiry under Section 5A and even after conducting the enquiry as prescribed
under Section 5A the Government forms opinion that the land was needed for
public purpose and declaration was published, the question is: whether the
limitation prescribed under clause (ii) of the first proviso to sub-section (1)
would still remain operative and be capable to be complied with? Having
considered the respective contentions, we are of the considered view that if
the construction as put up by the learned counsel for the appellants is given
acceptance, i.e., it should be within one year from the last of the dates of
publication under Section 4(1), the public purpose would always be frustrated.
It may be illustrated thus: In a given case where the notification under
Section 4(1) was published, dispensing with the enquiry under Section 5A and
declaration was published within one month and as the urgency in the opinion of
the Government was such that it did not brook the delay of 30 days and
immediate possession was necessary, but possession was not taken due to
dilatory tactics of the interested person and Court ultimately finds after two
years that the exercise of urgency power was not warranted and so it was
neither valid nor proper and directed the Government to give an opportunity to
the interested person and the State to conduct an enquiry under Section 5A,
then the exercise of the power pursuant to the direction of the Court will be
fruitless as it would take time to conduct enquiry. If the enquiry is dragged
for obvious reasons, declaration under Section 6(1) cannot be published within
the limitation from the original date of the publication of the notification
under Section 4(1). A valid notification under Section 4(1) becomes invalid. On
the other hand, after conducting enquiry as per Court order and, if the
declaration under Section 6 is published within one year from the date of the
receipt of the order passed by the High Court, the notification under Section
4(1) becomes valid since the action was done pursuant to the orders of the
Court and compliance with the limitation prescribed in clauses (i) and (ii) of
the first proviso to sub-section (1) of the Act would be made.
It is
true that this Court in Oxford > School's case (supra) in
paragraph 7 had held that when declaration under Section 6 was quashed and the
notification under Section 4(1) was upheld. the second declaration is required
to be published within the same period prescribed in clause (i) of first
proviso. In that case, the limitation of three years under clause (i) of the
first proviso to sub-section <1) could not be complied with. The
notification under Section 4(1) was held to be invalid. Unfortunately, the
above distinction was not brought to the notice of this Court when the case was
considered and decided. Similarly, the ratio in P.Chinnanna's case (supra)
directly does not deal with the problem but observations in paragraph S do
support the contention of the appellants as possession was not taken in these
cases and the observations get attracted. But it was not necessary in that case
to deal with that question since the possession under Section 17(2) was already
taken and the land stood vested in the State.
This
conclusion reached by us gets support from a decision of this Court rendered in
Director of Income-tax, New Delhi & Anr v. Pooran Mal and Sons & Anr
[(1975) 2 SCR 104] under the Income Tax Act, in an analogous situation.
Under
Section 132 of the Income Tax Act, 1961, it is mandatory that an order is
requires to be made under sub- section (5) within one year from the date when
the proceedings are taken. In that case proceedings were taken and order was
made within one year, but without any notice to the assessee. The order was
quashed. From the date of initial period of limitation the subsequent order was
barred. It was contended that the action initiated under Section 132 was
required to be done within the original period and an order made after expiry
of the period, was invalid in law. This Court considered the contention and
held that if the period of time prescribed under Section 132(5) is held to be
mandatory, and if any direction was given by a Court in a writ proceedings, an
order made in pursuance of such a direction would not be subject to limitation
prescribed under Section 132(5). Even if the period of time fixed under Section
132(5) is held to be mandatory that requirement was satisfied when the first
order was made. Thereafter, if any direction is given under Section 132(12) or
by a court in writ proceedings, as in this case, it cannot be said that an
order made in pursuance of such a direction would be subject to the limitation
prescribed under Section 132(5). Once the order has been made within ninety
days, the aggrieved person has got the right to approach the notified authority
under Section 132(11) within thirty days and that authority can direct the
Income-tax Officer to pass a fresh order. The contention that even such a fresh
order should be passed within ninety days, would make the sub-sections (11) and
(12) of Section 132 ridiculous and useless. It cannot be said that what the
notified authority could direct under Section 132, could not be done by a High
Court while exercising its power under Article 226 of the Constitution. To hold
otherwise would make the powers of the Court under Article 226 wholly ineffective.
The Court in exercising its powers under Article 226 has to mould the remedy to
suit to the facts of a case. When Section 132(5) permits fn Income-tax Officer
to pass an order within ninety days that power cannot in any way be whittled
down by a rule made under that section.
It is
contended by Shri Naresh Kaushik that ratio as noted above was founded on
concession and, therefore, the ratio would not be applied to the facts of this
case. We are afraid, we cannot accept the contention. This Court had pointed
out at page 111 at D that apart from the consent of the parties, even on point
of law, that would be the result.
Similar
view was taken by a Full Bench of Madras High Court in K.C. Grounder & Anr.
v. Govt. of Tamil Nadu & Anr. [AIR 1980 Madras 251].
We are
of the opinion that running of the limitation should be counted from the date
of the order of the court received by the Land Acquisition Officer and
declaration is published within one year from that date. It would be consistent
with the scheme of the Act and it would subserve the public purpose. Parliament
amended the Act and prescribed limitation since the acquisition proceedings
were unduly delayed for years and the owners of lands were put to hardship. If
operation of limitation under clause [ii] of first proviso to Section 6(1) is
not applied, we would come back to square and defeat the legislative purpose of
limitation prescribed under the Act. The Government is bound under the order of
the Court to hold an enquiry under Section 5A. Thereafter, if the Government
still opines that the land is needed for publication purpose, declaration under
Section 6 should be published within one year as indicated above. This
interpretation would render judicial review efficacious and meaningful and
public purpose subserved and the aggrieved owner would get an opportunity to
vindicate his grievance. Thus, we hold that the limitation prescribed in clause
(ii) of the first proviso to sub-section {1) of Section 6 would apply to
publication of declaration under Section 6(1) afresh. If it is published within
one year from the date of the receipt of the order of the Court by Land
Acquisition Officer, declaration published under Section 6(1) would be valid.
The
second contention that there would be two dates of notification under Section
4(1) as initially published and the one deemed to be published consequence to
upholding of second declaration under Section 6(1) and that the compensation
under Section 23(1) is required to be determined with reference to second date,
is untenable. The declaration under Section 6(1) gives only conclusiveness to
the public purpose specified in Section 4(1) and the notification under Section
4(1) still remains valid which is relevant for the purpose of computation of
market value as envisaged under Section 23(1) of the Act. When the Court
upholds the declaration it would relate back to the date of publication under
Section 4(1) Therefore, there are no two dates for the purpose of computation
of the market value as contended for the purpose of enquiry under Section 5A is
to determine whether the land is needed for the public purpose and the affected
owner or interested person gets a right to show that the public purpose
mentioned in Section 4(1) is not the public purpose or some other land is more
suitable or is available for the public purpose or his lands need to be
excluded from public purpose as the proposed land may be in excess of
requirement. Once the Government, after holding the enquiry has considered the
objections and decided that the land is needed for public purpose, declaration
published under Section 6 would become conclusive of the public purpose.
Nonetheless, relevant date for Section 23(1) is the date of the publication of
the notification under Section 4(1).
Admittedly,
in this case the second declaration was published within one year even from the
date of the order passed by the High Court and, therefore, the view of the
Division Bench is required to be upheld. Thus, we hold that the declaration
published under Section 6(1) on May 13, 1989 is valid and the notification dated January 22, 1987 under Section 4(1) does not become
invalid. The Land Acquisition Officer should conduct and complete award enquiry
within one year from the date of the receipt of the order of this Court.
The
appeals are accordingly dismissed but, in the circumstances, without costs.
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