Madras High Court
The Kanyakumari Diocese Of The Church Of ... vs The State Of Tamil Nadu And Anr. on 27 November, 1997
Equivalent citations: (1998)1MLJ622
ORDER E. Padmanabhan, J.
1. The petitioner prays for the issue of writ of certiorari to call for the records relating to the notification issued by the first respondent under Section 4(1) in G.O. Ms. No. 810, R.D. & D.A., dated 17.5.1979 and the declaration issued in G.O. Ms. No. 326, Municipal Administration and Water Supply, dated 12.12.1996 and quash the same.
2. Heard counsel for the petitioner and Mr. V. Rangaraju, Additional Government Pleader appearing for the respondents. this Court by order dated 27.10.1997 called upon the Government Advocate to produce the, file relating to acquisition. Accordingly, the respondents have produced the files and arguments were advanced by the counsel for either side. There is no controversy with respect to the factual aspect of the matter.
3. By G.O. Ms. No. 810, R.D. and L.A., dated 17.5.1979 Section 4(1) notification was issued by the first respondent and the said notification was published in the Tamil Nadu Gazette dated 20.6.1979. The substance of the notification has also been published in the locality as well as in convenient places. The Land Acquisition Officer conducted Section 5-A enquiry on 26.10.1979. Thereafter on the submission of report, the Government issued Section 6 declaration in G.O. Ms No. 1187 R.D. & L.A. dated 27.6.1981. Section 6 declaration was also gazetted on 15.7.1981. A notice under Section 9(2) of the Act was also issued for passing the award on 5.8.1983. It is stated that award was also passed on 16.9.1983.
4. At that stage, the petitioner filed W.M.P. No. 9795 of 1983. After hearing either side this Court passed the following order on 10.10.1991.
In view of the aforesaid circumstances, the impugned proceedings are liable to be quashed and accordingly they are quashed and with a direction that the petitioner is permitted to file its objections'to the proposed acquisition within a period of one month from the date of receipt of this order and in case the petitioner submits its objections, the Land Acquisition Officer shall follow the procedure for holding the enquiry under Section 5-A of the Act and pursue the acquisition proceedings in accordance with law. However, it is just and necessary to point out that the measurement of the land in question should be given if any subsequent declaration is issued in respect of the acquisition of the property in question, as in the notification under Section 4(1) of the Act so that there cannot be a different version over the total extent sought to be acquired under the acquisition proceedings. with this direction, the writ petition is allowed. No costs.
The said order of the learned Judge has become final, as admittedly no writ appeal has been preferred.
5. The petitioner herein in terms of the direction issued by the Govindasamy, J. had submitted objections on 9.11.1991 itself. The Land Acquisition Officer by proceedings dated 8.7.1992 after considering the objections of the Writ petitioner, and affording an opportunity, besides, complying with rule 3(b) of the Rules submitted proposals to reject the objections and to issue Section 6 declaration. Thereafter by G.O. Ms. No. 326, M.A. & W.S., dated 12.12.1996 a declaration under Section 6 of the Act has been published and the said declaration has been gazetted on 1.1.1997.
6. The Land Acquisition Officer had subsequently issued a notice under Sections 9(3) and 10 of the Land Acquisition Act. On 29.7.1997 award enquiry was conducted and award has also been passed on 8.9.1997 as seen from the files. Before possession could be taken the present writ petition has been filed on 16.10.1997 challenging the acquisition.
7. The learned Counsel for the petitioner raised the following four contentions:
1. The declaration is illegal as it has been made beyond two years from the date of Section 6 declaration.
2. The entire proceedings lapses in terms of Section 11-A of the Land Acquisition Act.
3. The land is now being used for a public purpose of running a college of the petitioner and it should not be acquired for another public purpose.
4. There is difference between extent and the discrepancy between 4(1) notification and Section 6 declaration.
8. It was also contended that when alternate site is available on the other side of the road and if land is acquired the petitioner college will be deprived of the minimum extent of land.
9. On the other hand, the Additional Government Pleader (L.A.), contended that the declaration has been made within the time prescribed as period covered by earlier orders of stay has to be excluded. It was also contended that Section 11-A has no application to the fac,ts of the present case and there is no discrepancy between Section 4(1) Notification and Section 6 declaration. It was pointed out that acquisition for a public purpose namely for widening the. road and merely because 9 cents of the land is acquired from the petitioner's holding, the petitioner's college will not be affected and on the other hand the acquisition of the land is in the larger interest of the public.
10. With respect to alternate site, it was rightly contended that it is the choice of the engineering section, who have decided to widen the road and the petitioner cannot contend that the land on the opposite side of the road is available for extension.
11. It is not necessary to go into the other contentions. It is sufficient if the first contention is considered.. this Court is also not inclined to permit the petitioner to raise any other contentions in this writ petition at this stage.
12. With respect to the various Notifications and Declarations, which are relevant there is no dispute about the following dates:
17.5.1979 Section 4(1) Notification issued in G.O. Ms. No. 810, R.D. &. L.A. 20.6.1979 Section 4(1) Notification Gazetted 20.6.1979 Section 5-A enquiry conducted 27.6.1981 Declaration issued under Section 6 of the Act in G.O. Ms. No. 1187, R.D. &. L.A. Dept. 15.7.1981 Section 6 Declaration gazetted >5.8.1983 Award Enquiry conducted 16.9.1983 Award passed in Award No. 3/83-84 of R.D.O. Nagercoil/Land Acquisition Officer.
25.10.1983 Petitioner filed W.P. No. 9795 of 1983 and obtained stay orders 6.3.1987 Order of interim stay made absolute 10.10.1991 W.P. No. 9795 of 1983 allowed.
Section 4(1) Notification alone retained. Subsequent proceedings were quashed. this Court directed fresh Section 5A enquiry. 9.11.1991 The writ petitioner filed objections under Section 5(A). The objection of the
petitioner communicated to the requisitioning body and the remarks were also communicated to the petitioner.
19.6.1992 5-A enquiry was conducted in respect of neighbouring land owner has filed W.P. No. 9795 of 1983.
6.7.1992 The petitioner filed objections before the Land Acquisition Officer, through Advocate.
8.7.1992 Objections of the petitioner over ruled and draft declaration forwarded 16.7.1992 Section 5-A enquiry proceedings communicated to the writ petitioner by the Land Acquisition Officer 12.12.1996 G.O. Ms. No. 326, M.A. & W.S. and Section 6 Declaration issued.
1.1.1997 Section 6 Declaration gazetted 12.12.1996 Section 6 Declaration published in the locality. 29.7.1997 Award enquiry conducted 8.9.1997 Award passed 16.10.1997 Writ petition filed. Possession not yet taken.
13. It is sufficient to consider the main contention of the learned Counsel for the petitioner and this Court is not inclined to entertain any other contention raised by the writ petitioner. Section 4(1) Notification is dated 17.5.1979 and it was gazetted on 20.6.1979. The earlier Declaration had been quashed by this Court on 10.10.1991 and this Court directed the respondents to conduct fresh Section 5-A enquiry, while directing that the earlier Section 4(1) Notification shall hold good. As already detailed above, based upon Section 4(1) Notification dated 17.5.1979 Declaration under Section 6 was made on 27.6.1981 and award has been passed on 16.9.1983. Subsequent to the orders of this Court dated 10.10.1991 not only the award but also the Declaration under Section 6 has been quashed and a fresh Declaration has to be made and so also a fresh award has to be passed.
14. The writ petitioner had the benefit of stay orders of this Court from 25.10.1983 to 10.10.1991. The learned Counsel for the petitioner contends that even reckoning 10.10.1991 as the date of Section 4(1) Notification, the respondents should have made a Declaration under proviso (1) to Section 6 within one year or even assuming this as two years from that date even in terms of proviso (ii) to Section 6 an award should have been passed within two years from the date of publication of such declaration. However, fresh Declaration has been made only on 12.12.1996, Gazetted on 1.1.1997 and published in the locality on 12.2.1997. In this case award has been passed only on 8.9.1997 The learned Government Pleader contended that the entire period of stay has to be excluded and if the entire period of stay commencing from 25.10.1983 to 25.10.1991 is excluded, the declaration made in this case is within time terms of Section 6 of the Act.
15. The Additional Government Pleader vehemently contended that the Section 6 Declaration had been made within the period of limitation prescribed by the provision to Section 6 of the Land Acquisition Act.
16. On a consideration of the above dates, this Court has no other alternative except to hold that the Declaration under Section 6 of the Act has been made after the period of limitation prescribed by proviso to Section 6 of the Land Acquisition Act and there is no escape. In this respect the attention of this Court was drawn to the recent pronouncement of the Apex Court in N. Narasimhaiah v. State of Karnataka . The three Judges Bench of the Supreme Court after referring to the Oxford English School v. Government of Tamil Nadu and P. Chinmnanna v. State of Andhra Pradesh , held thus:
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 one and defeat the legislative purpose of limitation prescribed under the Act. The Gov ernment is bound under the order of the court to hold an enquiry under Section 5-A. Thereafter, if the Government still opines that the land is needed for public 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.
17. 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 consequent 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 purposes 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 5-A 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).
18. 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 13.5.1989 is valid and the notification dated 22.1.1987 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.
17. Following the said Supreme Court judgment in a case D. Nandakrishnan and Anr. v. State of Tamil Nadu and Ors. , this Court had also an occasion to consider the identical contention and held thus:
The Full Bench pronouncement of the Supreme Court squarely applies to the facts of the present case. The Division Bench had allowed the writ petition and quashed the Section 6 Declaration by order dated 21.1.1988 and the same has been communicated to the Land Acquisition Officer and the certified copy of the said judgment was received by the Land Acquisition Officer, the second respondent on 3.2.1989. Thus either rekoned from 21.1.1988 or for that matter from 3.2.1989, till now no declaration under Section 6 of the Act has been issued by the 1st respondent. Hence, the respondents cannot issue a fresh declaration under Section 6 as number of years have rolled by now. Even assuming that a period of three years would not apply which contention is not correct, even then more than three years have elapsed since 3.2.1983. Reckoned from 3.2.1989 and till date of filing of writ petition on 19.2.1993 more than three years have elapsed. In the circumstances, on the facts of the case, no declaration under Section 6 could be issued as held by the Apex Court in N. Naraisimhaiah v. State of Karnataka .
18. As no declaration could be issued, no purpose will be served in allowing the Section 4(1) Notification alone to be kept pending. In the circumstances, it would be no more available to the State Government to make a Declaration under Section 6 of the Act based upon the Section 4(1) notification dated 29.8.1978 and published in Government Gazette dated 1.10.1975 eminent domain and make a fresh Section 4(1) notification and proceed further and complete acquisition in terms of Land Acquisition Act, 1894.
18. In the present case, as already pointed out this Court allowed the writ petition on 10.10.1991 and quashed the Section 6 declaration. The said judgment of this Court in W.P. No. 9795 of 1983, dated 10.10.1991 was communicated to the respondents by the petitioner along with letter dated 9.11.1991. That apart this Court also communicated the order in the Writ petition even before 9.11.1991. In fact Section 5-A enquiry was conducted once again on 19.6.1992 as well as on 6.7.1992. A report overruling the objections had been submitted by the Land Acquisition officer on 8.7.1992. However only on 12.12.1996 Section 6 Declaration has been made in G.O. Ms. No. 326, M.A. & W.S. and the same has been gazetted on 1.1.1997 and published in the locality on 12.12.1996.
19. Thus, as held by the three judges bench of the Supreme Court as well as earlier Judgment of this Court reported in D. Nandakrishnan and Anr. v. State of Tamil nadu and Ors. , this Court finds that the Section 6 Declaration had been made after a lapse of five years and two months from 10.10.1991 the date on which the earlier writ petition was allowed and four years and six months after the date of Section 5-A enquiry and four years and five months after the Land Acquisition Officer overrulled the objections as seen from his Section 5-A enquiry proceedings. In any view Section 6 Declaration has been made beyond the limitation prescribed in proviso to Section 6. In the circumstances, the Writ petition is allowed and the entire acquisition proceedings is quashed, but without costs.
20. It is made clear that it is well open to the respondents to proceed afresh for acquisition of the land in question if the respondents still require the land for the public purpose of widening the road. Consequently, W.M.P. No. 25039 of 1997 and W.M.P. No. 25040 of 1997 are also dismissed.