Report No. 182
The Supreme Court has, however, taken care to declare the law prospectively in Padmasundara Rao's case,. The Court observed in para 18 as follows: 12
"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 compensation have been paid, shall not be reopened by applying the ratio of the present judgment."
The effect of the "prospective overruling" in the manner set out above is that where the State had initially issued a notification under section 4(1) followed by a section 6 declaration within one year, and the said section 6 declaration was quashed by a Court before 13.3.2002, i.e., the date of judgment in Padmasundara Rao's case, and if a fresh section 6 declaration was made within one year of the judgment and an award had been passed and compensation had been paid before 13.3.2002,- that is where all these events happened before 13.3.2002,- then the owners or persons interested would not be able to fall back on the judgment in Padmasundara Rao's case, and seek the issue of a fresh section 4(1) notification.
They would not be allowed to rely on the above judgment and claim that the fresh section 6 declaration made within one year of the judgment as per Narasimhaiah's case was invalid, and that the earlier section 4(1) notification must be taken to have lapsed and that a fresh section 4(1) notification has to be issued. Obviously, the Supreme Court felt that those who were satisfied with a fresh section 6 declaration made in one year as per Narasihmaiah's case and who received compensation on the basis of the market value based on the earlier section 4(1) notification, - before 13.3.2002, should not be allowed to claim that they were entitled to a fresh section 4(1) notification and to a fresh award.
Having analysed the judgment in Padmasundara Rao's case and the effect of the prospective overruling, we shall now proceed to provide a legislative remedy for the lacuna pointed out by the Supreme Court in this case. The lacuna here is that there is no provision in section 6 to exclude the period covered by the court litigation in which section 6 declaration is quashed and where by the date of the quashing, the one year period has expired.
In the matter of filling up this lacuna in section 6, there are several options, viz., (i) the period between the date of the initiation of the court proceeding (e.g. filing of the writ petition) and the date of the judgment quashing the first section 6 declaration which was made within one year can be excluded; or (ii) the period from the date of grant of stay order up to the date of the judgment can be excluded; or (iii) a fresh period which is reasonable and which will enable the exercise of section 5A inquiry etc. to be repeated, can be provided.
After considering these alternatives, we are of the view that the third alternative set out above is the best one in the circumstances in as much as the department must have enough time (say) to issue fresh notices for section 5A inquiry, to give a hearing and to submit a fresh report. In fact, if it is a case of acquisition of land for a major irrigation project, hundreds of notices have to be issued under the section 5A inquiry and oral hearings have to be given. If the period taken by Court proceedings leading to the quashing of section 6 declaration is alone excluded, the balance of the period remaining may not be sufficient.
We are of the view that in all cases where the action or proceedings after section 4(1) notification or the first section 6 declaration made within one year is quashed on or after 13.3.2002 the department should have a further period of one hundred and eighty days from the date of the judgment unless, of course, the period remaining after the judgment quashing the first section 6 declaration is more than 180 days. However, where the first section 6 declaration has been quashed before 13.3.2002, and a fresh section 6 declaration was made before 13.3.2002, the fresh section 6 declaration so made would still remain protected by N. Narasimhaiah's case if the award was passed and compensation paid before 13.3.2002.
In other words, the proposed amendment will apply only to cases where any action or proceeding taken in pursuance of notification issued under section 4(1) or a declaration made under section 6 is quashed on or after 13.3.2002. So far as declarations under section 6 quashed before 13.3.2002 are concerned, the judgment in Padmasundara Rao saves them only if awards have been passed and compensation was paid before 13.3.2002. If that was not done before 13.3.2002, we do not propose to save them. In other words, where award was not passed before 13.3.2002 or compensation was not paid before 13.3.2002, the only method available for the State would be to issue fresh section 4(1) notification.
We, therefore, propose that a period of one hundred eighty days should be provided from the date of judgment to enable the concerned department/authorities for making another declaration under section 6 where the action or proceedings after the section 4(1) notification or initial section 6 declaration made within one year has been quashed by Court - unless of 15 course, the period left out after the quashing of the section 6 declaration, is more than 180 days, i.e., the period still available is more than the period of 180 days as proposed by us for making a fresh section 6 declaration.
One other aspect has to be taken care in this connection. So far as the declarations to be made on or after 13.3.2002 under section 6 are concerned, as stated above, we have already proposed to provide 180 days . However, the proposed amendment, as stated above, may take some time to come into force by way of a notification in the Gazette.
Till then, no body would have become aware of the extra time proposed as above. Hence, to cover cases where any action or proceeding taken in pursuance of notification issued under section 4(1) or a section 6 declaration, are quashed on or after 13.3.2002 and before the date of notification of the present Amendment Act, we propose that notwithstanding any judgment, decree or order of any court, the above period of 180 days should be counted from the date of notification of the Amendment Act in the Gazette.
Further, we also propose that where any action or proceeding taken in pursuance of notification issued under section 4(1) or a declaration made under section 6 is set aside or quashed by judgment of a court on or after 13th March, 2002 and before the date of commencement of proposed Amendment Act and if any fresh notification is issued under section 4(1) on or after 13th March, 2002, it should be deemed to be ineffective if declaration under section 6 is made within one hundred and eighty days as proposed above. Obviously, if the fresh section 6 declaration is allowed to be made within 180 days and if it saves the original section 4(1) notification, there cannot be another section 4(1) notification on a later date.
In order to give shape to our recommendations in legislative form, we have annexed a draft Bill incorporating the recommendations made above.
We recommend accordingly.
Justice M.Jagannadha Rao
Dr. N.M. Ghatate