State
of Kerala & Ors Vs. Antony Fernandez & Anr [1998] INSC 93
(12 February 1998)
S.B.Mjmudar,
M. Jagannadha Rao
ACT:
HEAD NOTE:
THE
12TH DAY OF FEBRUARY, 1998 Present:
Hon'ble
Mr.Justice S.B. Majmudar Hon'ble Mr.Justice N. Jagannadha Rao Mr.P.S.Poti, Sr.
Advocate and Ms. Malini Poduval, Advocate with hi for the appellants. Mr. P.
Krishnamurthy, Sr. Advocate and Mr. M.P. Vinod, Advocate with him for the
respondents.
O R D
E R
The
following Order of the Court was delivered:
Leave
granted.
We
have heard learned counsel for the parties finally in this appeal.
A
short question in this appeal that arises for consideration is as to whether
the High Court in the impugned judgment was justified in quashing the
notification under Section 6 of the Land Acquisition Act (hereinafter to be
referred to as `the Act) on town counts - (i) that it was issued beyond one
year from the date of publication of Section 4 notification; and (ii) that
enquiry under Section 5A of the Act was not conducted by the authorities before
issuance of Section 6 notification.
So far
as the first contention is concerned, learned senior counsel, Shri Poti,
vehemently contended that the said ground is not sustainable on the facts of
this case. He submitted that Section 4 notification was published on 27th May 1993 while Section 6 notification was gazetted
on 08th June 1994. Therefore, apparently it appeared
to be beyond one year from the date of publications Section 4 notification.
However, he invited our attention to an earlier decision in this case of the
High Court of Kerala in a writ petition numbered as O.P. No. 8235 of 1993-E.
The said writ petition was filed by the present respondents challenging Section
4 notification before the High Court at that stage. Their contention was that
Section 4(1) notification should not be followed by Section 6 notification
without giving an opportunity to the respondents to have their say under
Section 5A of the Act.
That
writ petition was heard by Justice P.A. Mohammed in the Kerala High Court on 02nd July 1993 and was allowed. Learned Judge
noted that the writ petitioner, i.e, the present respondent No.2 had expressed
her readiness to surrender the remaining portion of the land since she also
preferred to have an Industrial Training Institute in the locality and her
claim for exemption of 55 cents of land just on the side of the road was
required to be enquired into by the District Collector. This contention was
accepted by the learned Judge by its judgment dated 02nd July 1993 and in the penultimate paragraph of the said judgment
learned judge directed that till final decision is taken in Ext.P.3 (written
objections) the writ petitioner shall not be dispossessed from the disputed
land. It was further pointed out by Shri Poti, learned senior counsel appearing
for the appellants, that the final decision on the objections was taken by the
authorities on 19th
January 1994 when the
District collector forwarded the objections with recommendation to the Board of
Revenue. Therefore, the period from 02nd July 1993 when the learned Single Judge
delivered the judgment till at least 18th January 1994 amounting to almost six months
ought to be excluded under Explanation I to Section 6 of the Act for computing
the period of one year for issuance of the Section 6 notification.
Accordingly
Section 6 notification can be said to be within time. Explanation I to Section
6 of the Act reads as under:
"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." On the second point, Shri Poti, submits that
it is of course true that in the counter before the High Court a general
statement was made that objections under Section 5A were considered. But in the
present proceedings he has produced sufficient material to show that in the
enquiry under Section 5A of the Act after the order of the learned Single Judge
of the High Court full opportunity was given to the respondents to have their
say concerning the objections and they were heard through their counsel and not
only that they had also addressed written representation to the Chief Minister
wherein they had also admitted that hearing was given to them by the Collector
but they did not expect any favorable response from the Collector. It was,
therefore, submitted by Shri Poti, that even on that count the impugned order
is patently erroneous when it holds that no enquiry under Section 5A was
conducted after decision of the High Court in Writ Petition being O.P. No. 8235
of 1993-E.
Repelling
these cententions, learned senior counsel for the respondents, Shri
Krishnamurthy, submitted that so far as the question of elapsing of one year
after the publication of Section 14 notification is concerned, Explanation I to
Section 6 will not be available to the appellant-State of Kerala for the simple
reason that the period during which action or proceeding which is to be taken
pursuant to Section 4 notification, had not got intercepted by any stay order
of the Court. He, however, fairly conceded that stay of possession would amount
to stay as held by a catenate of decisions of this Court but his submission is
that when Section 1(1) notification was challenged before the High Court in
O.P. No. 8235 of 1993-E, there was no occasion for the Court, while allowing
the writ petition and directing the authorities to consider the objections, Ext
P.3 under Section 5A, to observe that the writ petitioner shall not be dispossessed
from the disputed land as Section 6 notification has to be issued after
considering the objections and, there fore, there was no question of
dispossessing the writ petitioner till objections are decided. in this
connection he submitted that once enquiry under Section 5A is to be held there
would be no possibility of dispensing with such enquiry under the provisions of
Section 17(4) and consequently there would be no occasion for dispossessing the
writ petitioner pursuant to Section 6 notification. If at all such a threat
would arise after Section 6 notification is issued invoking Section 17(1) of
the Act such an eventuality had not occurred when o.p. No. 8235 of 1993 of
1993-E was decided.
It
was, therefore, contended that the direction contained in the 1993 cannot
strictly be considered to be any stay of further proceedings as contemplated by
Explanation 1 to Section 6.
At
first blush the said argument appeared to be having substance. But on a closer
scrutiny we find that it cannot be sustained. The reason is obvious.
Explanation I to Section 6 is couched in very wide terms. It states that 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 a court that
period is to be excluded.
It is
not disputed that the proceedings under Section 5A is also pursuant to Section
2(1) notification. Secondly the direction of the Court is that possession
should not be taken till enquiry under Section 5A is held and objections are
considered which would amount to stay of further proceedings pursuant to
Section 4 notification after Section 5A enquiry. It was obviously an order of
competent court.
It has
been held by this Court vide [(1994) 4 SCC 145] Sangappa Gurulingappa Sajjan v.
State of Karnataka and others: [1995 Supp (2) SCC 423] Government of T.N. and
another v. Vasantha Bai: and [(1997) 9 SCC 128] Venkataswamappa v. Special
Deputy Commissioner (Revenue), that even stay of dispossession granted by the
Court while considering challenge to Section 4(1) notification would amount to
stay as contemplated by Explanation 1 to Section
6.
Consequently, it has to be held that the period during which there was stay of
dispossession, i.e, from 02nd July 1993 to 18th January 1994 amounting to almost
6 months is to be excluded and consequently, issuance of Section 6 notification
on 20th May 1994 cannot be said to be beyond the permissible period as per
Explanation I to Section 6.
The
first contention raised by Shri Poti, learned senior counsel for the
appellants, therefore, has to be accepted.
It is
held that the High Court had erred in taking the view that Section 6
notification was beyond the permissible period of one year as contemplated by
Section 6. In view of the aforesaid conclusion of ours the wider question
whether the period of one year is to be considered in the light of date of
Section 6 notification, i.e., 20th May 1994
or its publication in the Gazette on 08th June 1994 would pale into insignificance and
it is not necessary focus to consider that wider question.
So far
as the second point is concerned we find that Shri Poti, learned senior counsel
for the appellants is equally on a strong footing. It is of course true that
the effort which was made before us to sustain the proceedings under Section 5A
enquiry, was not made before the High Court and a general statement was made in
the counter affidavit filled in the writ petition, that as per the direction
contained in the judgment of the high Court the appellant authorities considered
the objections and disposed them of on merits. Whether hearing was given to the
respondents in respect of written objections or not was not made clench and
that seems to have weighed with the High Court when it observed that it is not
in dispute by the counsel for the parties, especially the counsel for the sent
petitioner that hearing was not given. However, in the rejoinder filed by the
appellant in these proceedings, at page 88 of the paper book it has been
clearly averred in paragraph 4 as follows:
"Thereupon
the respondent in the O.P. i.e Petitioner in this Special Leave Petition issued
notice fixing Section 5A enquiry on 25.8.1993 to all persons interested
including the petitioners in O.P. and as scheduled Section 5A enquiry was
conducted on 25.8.1993. Shri Rajesh K.S. Counsel for (1) Mrs. Annie Antony (2) Mr
Antony Fernandez (3) Mrs. Moses Pereira and (4) Augustine Pereira was present.
He argued that their property has very high potentiality and if the property is
acquired they will be put to irreparable loss, injury and hardship. He also
argued that the acquisition is unjust, illegal, arbitrary, vitiated by malafide
and against all principles of natural justice. The objections were examined in
detail and it was found that they are not sustainable and hence the objections
along with connected records were forwarded to the Secretary, Board of Revenue
for the approval of Draft Declination under Section 6 of LA Act overruling the
objections raised by the petitioners.
Board
of Reverted examined the objection in detail and overruled the objections vide
proceedings No. I.R.(C) 15634/94 (Annexure-C in the SLP) and draft declaration
was approved on 20.5.94 and declaration made on the same day itself...."
Not only that but our attention was invited to the written application moved by
the respondents to the Chief Minister, copy of which is annexed to the
rejoinder affidavit at page 111 of the paper book. That application is
addressed by all the four respondents to the Chief Minister of Kerala and in
paragraph 10 of the said written application it had been averred as under:
"On
the basis of the said order the Distinct Collector Trivandrum heard the
petitioner on 25.8.1993 and from the attitude of the District Collector, the
petitioners apprehend that the acquisition authorities are still attached to
their earlier proposal without considering not he merits of the claims that are
put forth by the petitioners and hence we are presenting this petition before
the Hon'ble Chief Minister of Kerala for Your Excellency's kind hearted and
humanitarian considerations." There averments in the rejoinder submitted
by learned senior counsel for the appellants could not be effectively
countenanced by learned senior counsel for the respondents.
Therefore,
it has to be held that after the order of the learned Single Judge of Kerala
High Court in O.P. No.8235 of 1993-E, full opportunity was given to the
respondents to have their say in support of written objections and their
counsel was heard. Consequently, even the second ground on which the High Court
allowed the writ petition cannot be sustained. As a result of the aforesaid
discussion the twin points on which the acquisition was challenged before the
High Court are found to be unsustainable.
In the
results, the ap[peal is allow, the judgment and order of the High Court are set
aside and the writ petition filed by the respondents is dismissed. In the facts
and circumstances of the case, there will be no order as to costs.
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