Punjab-Haryana High Court
Anil Gupta And Another vs State Of Punjab And Others on 21 February, 2013
Author: Ajay Kumar Mittal
Bench: Ajay Kumar Mittal, G.S. Sandhawalia
CWP No. 25018 of 2012 -1-
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
CWP No. 25018 of 2012
Date of Decision: 21.2.2013
Anil Gupta and another
....Petitioners.
Versus
State of Punjab and others
...Respondents.
CORAM:- HON'BLE MR. JUSTICE AJAY KUMAR MITTAL.
HON'BLE MR. JUSTICE G.S. SANDHAWALIA.
PRESENT: Mr. Hemant Sarin, , Advocate for the petitioners.
Mr. Amit Singh Sethi, Additional Advocate General, Punjab,
for respondents No.1 and 2.
Mr. Rupinder S. Khosla, Advocate and
Mr. Aman Sharma, Advocate for respondent No.3.
AJAY KUMAR MITTAL, J.
1. Reply by way of counter affidavit on behalf of respondents No.1 and 2 filed today in Court is taken on record subject to all just exceptions.
2. In this petition filed under Articles 226/227 of the Constitution of India, challenge is to the notifications dated 22.12.2010 (Annexure P-6) issued under Section 4 of the Land Acquisition Act, 1894 (in short "the Act") and dated 3.10.2012 (Annexure P-12) issued under Section 6 of the Act.
CWP No. 25018 of 2012 -2-
3. Briefly stated, the facts necessary for adjudication of the present petition as narrated therein are that the petitioners owned land measuring 8 bighas 19 biswas in village Chhat, Tehsil and District SAS Nagar comprised in khasra Nos. 363(5-8), 364(1-1) and 365(2-10). In the year 2007, they decided to set up a marriage palace, namely, Apsara Resort/Apsara Garden and in April, 2007 deposited ` 22080/- and ` 11592/-, respectively with the Forest Department, Punjab for availing an access to the proposed marriage palace from the Zirakpur Patiala National Highway No.64 as certain trees were blocking the proposed access. An application was submitted to the Fire Station Officer, Fire Station, Dera Bassi for grant of fire safety certificate who vide letter dated 9.10.2007 (Annexure P-2) after verification issued a Fire Safety Certificate for Apsara Garden which was to be renewed from year to year. The said marriage palace was made of A-Class construction and had modern day facilities etc. The petitioners had spent ` 49,62,000/- on the land and ` 87,90,000/- on the construction and other infrastructure available at Apsara Resort/Apsara Garden. Since 2007, the petitioners have deposited various amounts towards excise licence fee, service tax and luxury tax etc. On 5.2.2009, the State Government issued a notification under Section 4 of the Act for acquiring a huge chunk of land measuring 929.73 acres in villages Matran, Kishanpura, Narayangarh, Manauli, Chachu Majra, Bakarpur and Chhat, Tehsil and District SAS Nagar for public purpose. The said notification was followed by subsequent notification under Section 6 of the Act for acquiring the land measuring 771.34 acres. Thus, an area of 158.39 acres CWP No. 25018 of 2012 -3- was released from acquisition. The notifications were challenged by certain landowners in this Court by way of CWP No. 6586 of 2010 as according to them they had their residential structures. As the State Government had decided to release the land of the petitioners, the said writ petition was disposed of by this Court vide order dated 21.12.2010 (Annexure P-4) as having rendered infructuous. The State Government issued another notification under Section 4 of the Act on 22.12.2010 for acquiring land measuring 35 kanals 5 marlas for the public purpose of "acquisition of remaining khasra numbers of mix land use area, 300 mtrs on both sides of 200 feet road from Sector 66-66A Junction to NH-64 near Village Chhat in Urban Estate, SAS Nagar. Out of land measuring 8 bighas 19 biswas owned by the petitioners, land measuring 6 bighas 19 biswas in khasra No. 363(5-8), 364(0-1) and 365(1-10) was included in the notification under Section 4 of the Act. The petitioners filed objections dated 19.1.2011 (Annexure P-7) under Section 5-A of the Act against the said acquisition. Without taking any action on the objections of the petitioners, notification under Section 6 of the Act was issued on 18.5.2011 (Annexure P-8). On 4.7.2011, the Assistant Excise and Taxation Commissioner, SAS Nagar issued a notice to Apsara Resort/ Apsara Garden calling upon the petitioners to get the marriage palace registered and deposit tax. The petitioners challenged the said notifications issued under the Act by filing CWP No. 19449 of 2011. The aforesaid writ petition came up for hearing on 18.10.2011 and this Court while issuing notice of motion had stayed dispossession. The writ petition was allowed by this Court vide order dated 15.3.2012 (Annexure CWP No. 25018 of 2012 -4- P-9) and the notification issued under Section 6 of the Act was set aside and the respondents were directed to consider the objections of the petitioners and proceed ahead from the stage of illegality in accordance with law after providing opportunity of hearing to the petitioners. The petitioners filed another set of objections under Section 5A of the Act. Respondent No.2 vide report dated 11.6.2012 (Annexure P-11) recommended rejection of the objections of the petitioners and thereafter, respondent No.1 issued notification dated 3.10.2012 (Annexure P-12) under Section 6 of the Act including the land of the petitioners. According to the petitioners, since the notification under Section 6 of the Act was issued after a lapse of more than one year from the issuance of notification under Section 4 of the Act, the entire acquisition proceedings were liable to be quashed. Hence, the present writ petition.
4. Learned counsel for the petitioners submitted that notification under Section 4 of the Act was published in the Gazette on 22.12.2010 followed by publication in roznamcha on 26.12.2010. It was published in the newspaper on 6.1.2011. Thereafter, the petitioners approached this Court challenging acquisition by filing CWP No. 19449 of 2011 in which interim stay was granted on 18.10.2011 which remained in operation till 15.3.2012 when the writ petition was allowed. According to the learned counsel after excluding the aforesaid period from 18.10.2011 to 15.3.2012 in terms of Explanation 1 to Section 6, the notification issued under Section 6 of the Act on 3.10.2012 was beyond limitation. Reliance was placed on the judgment of the Hon'ble Supreme Court in Padma Sundara Rao (Dead) and others v. State of Tamil CWP No. 25018 of 2012 -5- Nadu and others (2002) 3 SCC 533 in support of the submissions.
5. On the other hand, learned counsel for the respondents supported the notification issued under Section 6 of the Act on the ground that after the order dated 15.3.2012 passed by this Court allowing CWP No. 19449 of 2011, the notification issued under Section 6 of the Act was within limitation as the notification was issued within the statutory period from the date of receipt of the copy of the order dated 15.3.2012.
6. After hearing learned counsel for the parties, the writ petition deserves to succeed. Reference is made to relevant portion of Section 6 of the Act which 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 sub-section (1), irrespective of whether one report or different reports has or have been made (wherever required) under CWP No. 25018 of 2012 -6- 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) XX XX XX
(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 XX XX XX 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.
Explanation 2. XX XX XX
(2) XX XX XX
(3) XX XX XX."
7. A plain reading of Explanation 1 to Section 6 of the Act clearly spells out that the period during which any action or the proceedings to be taken in pursuance of the notification issued under Section 4(1) of the Act had remained stayed by an order of a Court is to be excluded for the purpose of determining the period of limitation for issuance of notification under Section 6 of the Act. The provision no where provides that the period for issuing notification under Section 6 of CWP No. 25018 of 2012 -7- the Act would be reckoned from the date of receipt of certified copy of the order and the period upto that date shall be excluded.
8. The plea of the respondents that the limitation for issuing notification under Section 6 of the Act would start running from the date of receipt of a copy of the order passed by this Court cannot be accepted in view of the Constitution Bench judgment of the Hon'ble Apex Court in Padma Sundara Rao's case (supra). The Hon'ble Supreme Court while accepting its earlier decisions in A.S. Naidu v. State of Tamil Nadu, SLPs (C) Nos. 11353-55 of 1988 and Oxford English School v. Govt.
of Tamil Nadu, (1995) 5 SCC 206 and overruling the judgments in N. Narasimhaiah v. State of Karnataka, (1996) 3 SCC 88 and State of Karnataka v. D.C. Nanjudaiah (1996) 10 SCC 619 had held that once a declaration under Section 6 of the Act has been quashed, fresh declaration under Section 6 of the Act cannot be issued beyond the prescribed period of the notification under Section 6(1) of the Act and the period cannot be construed to commence from the date of receipt of the order of the Court, quashing the declaration. It was noticed as under:-
"14. 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.). The legislative casus omissus cannot be supplied by judicial interpretative process. Language of Section 6 CWP No. 25018 of 2012 -8- (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.
15. 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 CWP No. 25018 of 2012 -9- 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 (at All ER pp. 544-I), "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. where at AC p. 577 he also observed: (All ER p. 664-I) "this is not a new problem, though our standard of drafting is such that it rarely emerges".
16. 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 CWP No. 25018 of 2012 -10- 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' highlighted by the Full Bench of the Madras High Court has no application to the fact situation of this case.
17. The view expressed in Narasimhaiah's case and Nanjudaiah's case, is not correct and is over-ruled while that expressed in A.S. Naidu's case and Oxford's case is affirmed.
9. Admittedly, in the present case, the interim order was granted by this Court on 18.10.2011 in CWP No. 19449 of 2011 filed by the petitioners earlier which remained in operation till 15.3.2012. Thus, after excluding the period between the aforesaid dates, the limitation for issuance of notification under Section 6 of the Act was upto 12.8.2012. The notification having been issued on 3.10.2012 was, thus, clearly beyond limitation. Consequently, the writ petition is allowed and the notification dated 3.10.2012 issued under Section 6 of the Act (Annexure P-12), is quashed. As a consequence, notification under Section 4 of the Act shall also be considered to have lapsed. Any consequential proceedings taken in pursuance to the aforesaid notifications shall also be nonest.
(AJAY KUMAR MITTAL)
JUDGE
February 21, 2013 (G.S. SANDHAWALIA)
gbs JUDGE