Bombay High Court
Mrs. Margarida Gomes Pereira vs State Of Goa And Others on 21 January, 1998
Equivalent citations: AIR1998BOM327, 1998(3)BOMCR87, (1998)2BOMLR286, 1998(2)MHLJ346, AIR 1998 BOMBAY 327, (1998) 2 LACC 209, (1999) 1 LANDLR 85, (1998) 2 MAH LJ 346, (1998) 4 CURCC 281, (1998) 3 ALLMR 682 (BOM), (1998) 3 BOM CR 87, 1998 (2) BOM LR 286, 1998 BOM LR 2 286
Author: R.K. Batta
Bench: R.K. Batta
ORDER R.K. Batta, J.
1. Land belonging to the petitioner was acquired by respondents Nos. 1 and 2 for respondent No. 3, as Government Company incorporated under the Companies Act, 1956 vide section No. 4 Notification bearing No. 22/97/83-RD dated 20th August 1983 published in Government Gazette, Series II, No. 22 dated 1st September 1983. Section 6 Notification bearing No. 22/97/83/RD dated 10th December 19855 was published in the Government Gazette dated 30th January 1986. The notices in the newspaper were published on 14th December 1985.
2. The petitioner had filed Writ Petition No. 70/1986 challenging the said notification in which Rule was issued and interim relief to the extent that the possession should not be taken by the respondents, was granted pending disposal of the said petition. The interim relief was granted on 24th April 1986. The said writ petition was dismissed on 22nd April 1987 and rule was discharged.
3. The petitioner then filed present writ petition on the ground that no award has been made within a period of two years from the date of publication of declaration under section 6 and as such, the land acquisition proceedings lapsed in terms of section 11-A of the Land Acquisition Act, 1894. The petitioner, therefore, prayed for quashing and/or setting aside the entire acquisition proceedings.
4. Learned advocate Shri A.P. Cardozo, appearing on behalf of the petitioner, urged before us that the declaration under section 6 was published in Gazette on 30-1-1986 and the award in terms of section 11-A of the said Act was required to be made within two years of the said declaration i.e. to say, on or before 29th January 1988. However, he pointed out that the interim relief in the previous Writ Petition No. 70/1986 filed by the petitioner to the extent that the possession shall not be taken by the respondents pending disposal of the said petition, was granted on 24-4-1986 and the same was vacated on 22-4-1987. As such, operation of interim relief would extend the period beyond 29-1-1988 by 364 days and as such, the outer date for making the award in terms of section 11-A was 27-1-1989. The award in question was passed on 2nd February 1989 which is beyond the said period of two years and as such, the entire proceedings for acquisition of land had lapsed prior to the passing of the award by the Land Acquisition Officer as a result of which, the entire proceedings are liable to be set aside and quashed.
5. There is in fact no dispute regarding the dates recorded above except that according to the learned Advocate General, appearing on behalf of respondents Nos. 1 and 2, the outer date for making the award would be 28-1-1989 on account of the month of February 1986 being of 29 days due to leap year and, as such, the total number of days during which the interim relief operated, comes to 365 days. We are in agreement with the learned Advocate General in this respect and the outer date for making the award in terms of section 11-A would be 28-1-1989.
6. Learned Advocate General has made two further submissions. The first submission made by him is that the approval which is required under section 11 of the said Act was granted by the Collector on 31st January 1989 after which the Land Acquisition Officer made award on 2nd February 1989. Relying on para 6 of the judgment of the Apex Court in Sharadchandra Ganesh Muley v. State of Maharashtra, 1995 Supp (4) S.C.C. 702, it was urged by him that the award had been made by the Land Acquisition Officer much prior to 28th January 1989 but it was formally signed on 2nd February 1989 after the approval was granted by the Collector on 31-1-1989 and as such, the award cannot be said to have been made beyond the period of two years contemplated under section 11-A of the said Act. In the said case before the Apex Court, initially the appellant therein has challenged section 4 notification published on 3-2-1970 and had obtained stay of dispossession on 16-2-1984. The said writ petition was dismissed on merits on 31-3-1992. Thereafter the Land Acquisition Officer made the award on 30-3-1994 which was again challenged by the said appellant before the High Court on plea of bar of limitation under section 11-A, but without success. During pendency of the previous writ petition, section 11-A was introduced vide Amendment Act 68 of 1984 which came into force on 24-9-1984. After the dismissal of the previous writ petition on 31-3-1992, the Land Acquisition Officer made the award on 30-3-1994 under his signature and seal and under section 12{1) of the said Act, it is conclusive evidence of making the award. It is true that the Apex Court has referred to the fact that the award clearly indicated that on 17-5-1993, endorsement was made "subject to prior approval" and after obtaining the prior approval, it was signed by the Land Acquisition Officer on 30-3-1994. The Apex Court pointed out that obviously, the award was made on 17-5-1993 and after obtaining prior approval, it was signed by the Land Acquisition Officer on 30-3-1994. However, it has to be borne in mind that the Apex Court has, on fads of that case, held that the Land Acquisition Officer had made the award on 30-3-1994 under his signature and seal which is conclusive evidence of making the award under section 12(1) of the said Act. Therefore, in the context, 30-3-1994 was taken as the date of award and as such, the award was held to be made within two years. The question which we are required to deal, was in fact dealt with specifically and in detail by the Apex Court in State of U.P. v. Rajiv Gupta, . The Apex Court has laid down as under :
" A bare reading of section 11-A indicates and emphasises the limitation within which the award should be made and has been statutorily determined, namely, the Collector shall make an award within a period of two years from the date of the publication of the declaration. It is, therefore, a mandatory duty cast on the Land Acquisition Collector to make award strictly in accordance with the limitation under section 11-A. If no award is made within that period, the entire proceedings for the acquisition of the land shall lapse. In other words, on expiry of two years from the date of the publication of the declaration unless the proviso is attracted, if no award is made in the meantime, in the eye of law, the proceedings initiated under section 4(1) of the Act culminated in the declaration made under section 6 shall stand lapsed and no proceedings, in the eye of law, thereafter do exist to take further action.
Under first proviso to section 11, no award can be made by the Collector without the previous approval of the appropriate Government or of such officer as the appropriate Government may authorise in this behalf. Any award made in violation thereof, renders the award non-est and void as it hinges upon the jurisdiction of the Land Acquisition Collector or Officer."
In the said case, before the Apex Court, the Collector was required to make the award on or before 21-12-1992. He made the proposed award on 20-12-1992 and communicated the same to the Commissioner for his approval. Since his prior approval was not given before the expiry of 21st December 1992, it was held that there is no award made by the Land Acquisition Officer. It was further pointed out by the Apex Court that in the eye of law, the proposed award of the Collector under section 11 of the Act is not the award and since section 11-A is mandatory, on expiry of two years from the date of publication of the declaration, the entire proceedings under the Act stood lapsed. In view of the same, we do not find any merit in the first submission of learned Advocate General.
7 The next submission which has been advanced by the learned Advocate General is that in order to get benefit of section 11-A of the Land Acquisition Act, the owner of the land or a person interested in the land must not have obtained any order from a Court restraining any action or proceeding in pursuance of declaration under section 6 of the said Act and the Explanation covers only the cases of those land holders who do not obtain any order from a Court which would delay or prevent the making of the Award or taking possession of the land acquired. In the support of this submission, reliance was placed on Yusufbhai Noor Mohmed Nendoliya v. State of Gujarat and another, and LA/. Venkatesan v. The State of Tamil Nadu and others, 1997 (4) Supreme 509.
8 In Yusufbhai Noor mohmed Nendoliya v. The State of Gujarat (cited supra), section 4 Notification was issued on 12th May 1988 but the publication took place some time in June 1988. The appellant therein had challenged the Notification by filing Special Civil Application No. 4342 of 1988 in the High Court and High Court granted only a limited interim relief by restraining respondent No. 1 from taking possession of the land of the appellant pending admission of the Special Civil Application. The said interim relief, which was granted on 9-8-1988, still continued to be in operation when the appeal was filed in the Apex Court. Learned Counsel for the appellant had urged before the Apex Court that the Collector had not made the award within two years of publication in June 1988 and the acquisition proceedings had lapsed and in support of his contention, reliance was placed upon the judgment of learned Single Judge of Kerala High Court in S. Bhavajan Sahib v. State of Kerala, . The Apex Court noted that in the Explanation to section 11-A of the said Act, which prescribes the period which is to be excluded, the expression used is :
"the period during which any action or proceeding to be taken in pursuance of the said declaration is stayed by an order of a Court."
The Apex Court pointed out that the Explanation to section 11-A is in the widest possible terms and there is no warrant for limiting the meaning of the words 'action or proceedings' referred to in the explanation to actions or proceedings preceding the making of the award under section 11 of the said Act. It was also pointed out that the Explanation is intended to confer a benefit on a land holder whose land is acquired after the declaration under section 6 is made in cases covered by the Explanation. It was further pointed out that the benefit is that the award must be made within a period of two years of the declaration, failing which the acquisition proceedings would lapse and the land would revert to the land holder. This was an appeal which had been filed by the land owner on the ground that the proceedings had lapsed since no award had been passed within two years of declaration under section 6 of the said Act. However, it is to be noted that it is the land owner himself who had obtained interim stay restraining the respondents from taking possession of the land pending the writ petition. It was in this context that the Apex Court has pointed out that in order to get the benefit of the said provision, what is required is that the land holder who seeks the benefit, must not have obtained any order from a Court restraining any action or proceeding in pursuance of the declaration under section 6 of the said Act so that the Explanation covers the cases of those land holders who do not obtain any order from a Court which would delay or prevent the making of award or taking possession of the land acquired. Accordingly, the Apex Court had dismissed the appeal.
9. The position in L.N. Venkatesan v. The State of Tamil Nadu (cited supra) is similar. In that case, Notification under section 4(1) of the Land Acquisition Act was published on 11-6-1975. Declaration under section 6 was published on 3-3-1978. The petitioner filed Writ Petition No. 7645/1986 and obtained stay of dispossession. Since the award was not -made within two years under section 11-A, the petitioner filed another Writ Petition No. 3450/1988. The High Court held that the bar of proviso does not attract the operation of the stay obtained by the petitioner in the earlier writ petition and as such, the acquisition does not stand lapsed. Petitioner has contended before the Apex Court that the interim stay granted was 'not to dispossess' the petitioner and there is no impediment for the authorities to proceed further in passing the award. The Apex Court rejected the contention and held that declaration under section 6 does not get lapsed and consequently, Notification under section 4 also does not lapse.
10. None of the two rulings upon which reliance has been placed by the learned Advocate General, help the respondents in any manner in the facts and circumstances of the petition before us. The reliance placed is totally out of context and misconceived. Accordingly, we do not find any merit in the second submission advanced by the learned Advocate General. No submissions were made on behalf of respondent No. 3.
11. Explanation to section 11-A provides that in computing the period of two years referred to in the said section, the period during which any action or proceeding to be taken in pursuance of the said declaration is stayed the order of the Court shall be excluded. The Apex Court in Government of Tamil Nadu v. Vasantha Bai, applied the principles laid down in Yusufbhai Noor Mohamed Nendoliya (supra cited) and Sanappa G. Sajjan v. State of Karnataka, and observed.
"The Parliament enacted section 11-A with a view to prevent inordinate delay being made by the Land Acquisition Officer in making the award. The price to be paid for the land acquired under compulsory acquisition is the prevailing price as on the date of publication of section 4(1), Notification. The delay in making the award deprives the owner of the enjoyment of his property or to deal with the land whose possession has already been taken, and delay in making the award, would subject the owner of the land to untold hardship. With a view to relieve hardship to the owner or person interested in the land and to remedy the lapses on the part of the Land Acquisition Officer in making the award, section 11- A was enacted which enjoins making of award expeditiously. So, outer limit of two years from the last of the dates of publications, envisaged in section 6 of the Act was fixed. If he fails to do so, all the acquisition proceedings under the Act would stand lapsed and the owner of the land or person interested in the land is made free to deal with the land as an unencumbered land. Cognizant to the fact that the acquisition proceedings are questioned in a Court of law, the Parliament enacted Explanation to section 11-A, declaring that the period during which action or proceedings taken in pursuance of the declaration under section 6, is stayed by an order of the Court, the same "shall be excluded".
Therefore, excluding the stay in interim relief granted in Writ Petition No. 70/1986 w.e.f.
24-4-1986 to 22-4-1987, the outer limit for making the award in terms of section 11-A was 28-1-1989. The award in this case was made only on 2-2-1989 which falls beyond the said period of two years. Since no award was made till 28-1-1989, the proceedings had lapsed in terms of section 11-A and the subsequent award made on 2-2-1989 is of no avail.
12. Learned Advocate General had also tried to raise technical objection regarding the relief prayed in this petition on the ground that when this petition was filed, the period of two years had not lapsed. We do not find any merit in the objection raised by the learned Advocate General and in writ petitions, the High Court is empowered to mould relief on account of subsequent events. No award had been passed till 28-1-1989 and as such, the proceedings had lapsed on that day in terms of section 11-A of the said Act.
13. For the reasons mentioned above, the writ petition is allowed and the land acquisition proceedings in question are quashed having lapsed in terms of section 11-A of the said Act. Rule is made absolute in the aforesaid terms. In the facts and circumstances, we leave parties to bear their costs.
14. Petition allowed.