Padmausundara
Rao & Ors Vs. State of T.N. & Ors [2002] Insc 129 (13 March 2002)
Cji,
R.C. Lahoti, N. Santosh Hegde, Ruma Pal & Arijit Pasayat
WITH CIVIL
APPEAL No. 2058/2002 (Arising out of S.L.P. No.12806 of 2000]
ARIJIT
PASAYAT, J.
Noticing
cleavage in views expressed in several decisions rendered by Benches of three
learned Judges, two learned 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 is before us in C.A.
No. 2226/1997. Special Leave petition No.12806/2000 was directed to be heard
along with Civil Appeal.
Leave
granted in SLP No. 12806/2000.
The
controversy involved lies within a very narrow compass, that is whether after
quashing of Notification under Section 6 of the Land Acquisition Act, 1894
(hereinafter referred to as the 'Act') fresh period of one year is available to
the State Government to issue another Notification under Section 6. In the case
at hand such a Notification issued under Section 6 was questioned before the
Madras High Court which relied on the decision and Ors etc. (1996 (3) SCC 88)
and held that the same was validly issued.
Learned
counsel for the appellants placed reliance on an un-reported decision of this
Court in A.S. Naidu and Ors. etc. vs. State of Tamil Nadu and Ors. etc. (SLP (C) Nos. 11353-11355/1988), wherein
a Bench of three Judges held that once a declaration under Section 6 of the Act
has been quashed, fresh declaration under Section 6 cannot be issued beyond the
prescribed period of the Notification under Sub-section (1) of Section 4 of the
Act. It has to be noted that there is another judgment of two learned Judges in
Oxford English School vs. Government of Tamil Nadu and
Ors. (1995 (5) SCC 206) which takes a view similar to that expressed in A.S. Nanjudaiah
and Ors. (1996 (10) SCC 619), view in Narasimhaiah's case (supra) was followed
and it was held that the limitation of 3 years for publication of declaration
would start running from the date of receipt of the order of the High Court and
not from the date on which the original publication under Section 4(1) came to
be made.
Learned
counsel for the appellant submitted that a bare reading of Section 6 of the Act
as amended by Act 68 of 1984, leaves no manner of doubt that the declaration
under Section 6 has to be issued within the specified time and merely because
the Court has quashed the concerned declaration an extended time period is not
to be provided. Explanation 1 (appended to the Section) specifically deals with
exclusion of periods in certain specified cases. If the view expressed in Narasimhaiah's
case (supra) is accepted, it would mean reading something into the statute
which is not there, and in effect would mean legislation by the Court whereas
it is within the absolute domain of the legislature. Per contra, learned
counsel appearing for the State of Tamil Nadu submitted that the logic indicated in Narasimhaiah's case (supra) is in
line with the statutory intent. Placing reliance on the decision in Director of
Inspection of Income Tax (1975 (2) SCR 104), it was submitted that extension of
the time limit is permissible. Apart from Pooranmal's case (supra), reliance
was placed on two decisions rendered in relation to proceedings under the
Income Tax Act, 1961 (in short the 'IT Act'), to contend that there is scope
for extension of time though there was fixed statutory time prescription. The
decisions relied on are Commissioner of Income Tax, Central Calcutta vs. National Taj Traders (1980 (1)
SCC 370) and Grindlays Bank Ltd. vs. Income Tax Officer, Calcutta and Ors. (1980(2) SCC 191). It was,
however, frankly conceded that in Grindlays's case (supra), question of
limitation was not necessary to be gone into as the impugned action was taken
within the prescribed time limit. It was contended that at the most, this can
be considered to be a case of casus omissus, and the deficiency, if any, can be
filled up by purposive interpretation, by reading the statute as a whole, and
finding out the true legislative intent. Strong reliance was placed on a Full
Bench decision of Madras High Court in K. Chinnathambi Gounder and Anr. vs.
Government of Tamil Nadu and Anr. (AIR 1980 Madras 251) to contend that the
view in the said case has held the field since long and the principles of stare
decisis are applicable. Residually, it was submitted that many acquisitions
have become final and if the matters are directed to be re- opened, in case a
different view is taken, it would cause hardship.
Section
6(1) of the Act so far as relevant reads as follows:
"Declaration
that land is required for a public purpose:- 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 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 (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, 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 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." As the factual scenario shows, in the case at
hand the Notification under Section 4(1) of the Act was issued and the
declaration was made prior to the substitution of the existing proviso to
Section 6(1) by Act 68 of 1984 with effect from 24.8.1984. In other words, the
Notification under Section 4(1) was issued before the commencement of Land
Acquisition (Amendment) Act 1984, but after the commencement of the Land
Acquisition (Amendment and Validation) Ordinance, 1967 (replaced by Land
Acquisition (Amendment and Validation) Act 1967 (Act 13 of 1967).
But
the substituted proviso was in operation on the date of the impugned judgment.
In terms of the proviso, the declaration cannot be made under Section 6 in
respect of any land covered by the Notification under Section 4(1) of the Act
after the expiry of three years or one year from the date of its publication,
as the case may be. The proviso deals with two types of situations. It provides
for different periods of limitation depending upon the question whether (i) the
notification under Section 4(1) was published prior to commencement of Land
Acquisition (Amendment and Validation) Ordinance, 1967, but before commencement
of Land Acquisition (Amendment) Act, 1984, or (ii) such notification was issued
after Land Acquisition (Amendment) Act, 1984. In the former case, the period is
three years whereas in the latter case it is one year. Undoubtedly, the
Notification under Section 6(1) was made and published in the official gazette
within the period of three years prescribed under the proviso thereto, and
undisputedly, the same had been quashed by the High Court in an earlier
proceeding. It has to be noted that Explanation 1 appended to Section 6(1)
provides that in computing the period of three years, the period during which
any action or proceeding to be taken in pursuance of the Notification under
Section 4(1), is stayed by an order of the Court, shall be excluded. Under
Tamil Nadu Act 41 of 1980, w.e.f. 20.1.1967, the expression used is
"action or proceeding..is held up on account of stay or injunction",
which is contextually similar.
Learned
counsel for the respondents referred to some observations in Pooranmal's case
(supra), which form the foundation for decisions relied upon by him. It has to
be noted that Pooranmal's case (supra) was decided on entirely different
factual and legal background. The Court noticed that assessee who wanted the
Court to strike down the action of the Revenue Authorities on the ground of
limitation had himself conceded to the passing of an order by the authorities.
The Court, therefore, held that the assessee cannot take undue advantage of his
own action. Additionally, it was noticed that the time limit was to be reckoned
with reference to the period prescribed in respect of Section 132(5) of the IT
Act. It was noticed that once the order has been made under Section 132(5)
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. That is the
distinctive feature vis--vis Section 6 of the Act. The Court applied the
principle of waiver and inter alia held that the period of limitation
prescribed therein was one intended for the benefit of the person whose
property has been seized and it was open to that person to waive that benefit.
It was further observed that if the specified period is held to be mandatory,
it would cause more injury to the citizens than to the Revenue. A distinction
was made with statutes providing periods of limitation for assessment. It was
noticed that Section 132 does not deal with taxation of income. Considered in
that background, ratio of the decision in Pooranmal's case (supra) has no
application to the case at hand.
Courts
should not place reliance on decisions without discussing as to how the factual
situation fits in with the fact situation of the decision on which reliance is
placed. There is always peril in treating the words of a speech or judgment as
though they are words in a legislative enactment, and it is to be remembered
that judicial utterances are made in the setting of the Railways Board (1972) 2
WLR 537.Circumstantial flexibility, one additional or different fact may make a
world of difference between conclusions in two cases.
What
appears to have weighed with the three-Judge Bench in Narasimhaiah's case
(supra) is set out in paragraph 12 of the judgment, which reads as under:
"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 5-A 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 the 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 5-A, then the exercise
of the power pursuant to the direction of the court will be fruitless as it
would take time to conduct the 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) become 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 may be pointed
out that the stipulation regarding the urgency in terms of Section 5-A of the
Act has no role to play when the period of limitation under Section 6 is
reckoned. The purpose for providing the period of limitation seems to be
avoidance of inconvenience to a person whose land is sought to be acquired.
Compensation gets pegged from the date of Notification under Section 4(1).
Section 11 provides that the valuation of the land has to be done on the date
of publication of Notification under Section 4(1). Section 23 deals with
matters to be considered in determining the compensation. It provides that the
market value of the land is to be fixed with reference to the date of
publication of the Notification under Section 4(1) of the Act. The prescription
of time limit in that background is, and Ors. (1994 (1) SCC 44), it was held by
this Court that though no period was prescribed, action within a reasonable time
was warranted. The said case related to a dispute which arose before
prescription of specific periods.
After
the quashing of declaration, the same became non-est and was effaced.
It is
fairly conceded by learned counsel for the respondents that there is no bar on
issuing a fresh declaration after following the due procedure. It is, however,
contended that in case a fresh notification is to be issued, the market value
has to be determined on the basis of the fresh Notification under Section 4(1)
of the Act and it may be a costly affair for the State. Even if it is so, the
interest of the person whose land is sought to be acquired, cannot be lost
sight of. He is to be compensated for acquisition of his land. If the
acquisition sought to be made is done in an illogical, illegal or irregular
manner, he cannot be made to suffer on that count.
The
rival pleas regarding re-writing of statute and casus omissus need careful
consideration. It is well settled principle in law that the Court cannot read
anything into a statutory provision which is plain and unambiguous. A statute
is an edict of the legislature. The language employed in a statute is the
determinative factor of legislative intent. The first and primary rule of
construction is that the intention of the Legislation must be found in the
words used by the Legislature itself. The question is not what may be supposed
and has been intended but what has been said.
"Statutes
should be construed not as theorems of Euclid". Judge Learned Hand said,
"but words must be construed with some imagination of the purposes which
lie behind them". (See Lenigh Valley Coal Co. v. Yensavage 218 FR 547).
The view was re-iterated in Union of India and Ors. v. Filip Tiago De Gama of Vedem
Vasco De Gama (AIR 1990 SC 981).
In Dr.
R Venkatchalam and Ors. etc. vs. Dy. Transport Commissioner and Ors. etc. (AIR
1977 SC 842) it was observed that Courts must avoid the danger of apriori
determination of the meaning of a provision based on their own pre-conceived
notions of ideological structure or scheme into which the provision to be
interpreted is somewhat fitted. They are not entitled to usurp legislative
function under the disguise of interpretation.
While
interpreting a provision the Court only interprets the law and cannot legislate
it. If a provision of law is misused and subjected to the abuse of process of
law, it is for the legislature to amend, modify or repeal it, if deemed
necessary. [See Rishabh Agro Industries Ltd. vs. P.N.B. Capital Services Ltd.
(2000 (5) SCC 515)]. `The legislative casus omissus cannot be supplied by
judicial interpretative process. Language of Section 6(1) is plain and
unambiguous. There is no scope for reading something into it, as was done in Narasimhaiah's
case (supra). In Nanjudaiah's case (supra), the period was further stretched to
have the time period run from date of service of High Court's order. Such a
view cannot be reconciled with the language of Section 6(1). If the view is
accepted it would mean that a case can be covered by not only clauses (i) and/or
(ii) of the proviso to Section 6(1), but also by a non-prescribed period. Same
can never be the legislative intent.
Two
principles of construction one relating to casus omissus and the other in
regard to reading the statute as a whole appear to be well settled.
Under
the first principle a casus omissus cannot be supplied by the Court except in
the case of clear necessity and when reason for it is found in the four corners
of the statute itself but at the same time a casus omissus should not be
readily inferred and for that purpose all the parts of a statute or section
must be construed together and every clause of a section should be construed
with reference to the context and other clauses thereof so that the
construction to be put on a particular provision makes a consistent enactment
of the whole statute. This would be more so if literal construction of a
particular clause leads to manifestly absurd or anomalous results which could
not have been intended by the Legislature. "An intention to produce an
unreasonable result", said Danckwerts, L.J., in Artemiou v. Procopiou
(1966 1 QB 878), "is not to be imputed to a statute if there is some other
construction available". Where to apply words literally would "defeat
the obvious intention of the legislation and produce a wholly unreasonable
result" we must "do some violence to the words" and so achieve
that obvious intention and produce a rational construction. [Per Lord Reid in
Luke v. I.R.C. (1966 AC 557) where at p. 577 he also observed: "this is
not a new problem, though our standard of drafting is such that it rarely
emerges".] The plea relating to applicability of the stare decisis
principles is clearly unacceptable. The decision in K Chinnathambi Gounder
(supra) was rendered on 22.6.1979 i.e. much prior to the amendment by the 1984
Act. 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 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
curia neminem gravibit' highlghted by the Full Bench of the Madras High Court
has no application to the fact situation of this case.
The
view expressed in Narasimhaiah's case (supra) and Nanjudaiah's case (supra), is
not correct and is over-ruled while that expressed in A.S. Naidu's case (supra)
and Oxford's case (supra) is affirmed.
There
is, however, substance in the plea that those matters which have obtained
finality should not be re-opened. The present judgment shall operate
prospectively to the extent that cases where awards have been made and the
compensations have been paid, shall not be reopened, by applying the ratio of
the present judgment. The appeals are accordingly disposed of and the
subsequent Notifications containing declaration under Section 6 of the Act are
quashed.
. CJI.
....J.
(R.C.
LAHOTI) ....J.
(N.
SANTOSH HEGDE) ....J.
(RUMA
PAL) .J.
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