Madras High Court
R.Rajaram vs The Secretary To Government on 28 February, 2014
Author: S. Manikumar
Bench: S.Manikumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 28.02.2014 CORAM: THE HON'BLE MR.JUSTICE S.MANIKUMAR Writ Petition No.6039 of 2014 1.R.Rajaram 2.R.Murugesan 3.K.Rakkianna Gounder 4.S.Selvamani 5.s.selvamurali 6.s.selvananth .. Petitioners versus 1.The Secretary to Government, Housing and Urban Development Department, Fort St.George, Chennai-600 009. 2.The Special Tahsildar (Land Acquisition), Neighbourhood Scheme, Salem-600 008. 3.The Tamilnadu Hosing Board, rep. By its Executive Engineer & Administrative Officer, Salem Housing Unit, Salem-636 008. .. Respondents Prayer: This Writ Petition has been filed, praying for the issuance of a Writ of Certiorari, to call for the records in G.O.Ms.No.879 Housing and Urban Development dated 28.5.1991 published in the Tamil Nadu Government Gazette on 19.06.1991 with regard to the notification u/s. 4 of the Land Acquisition Act and G.O.Ms.No.447 Housing and Urban Development dated on 20.07.1992 published in the Tamil Nadu Government Gazettee Extraordinary on 21.07.1992 with regard to the declaration under Section 6 of the Land Acquisition Act issued by the first respondent in respect of land in S.No.66/1 to extent of 0.91.0 hectares and quash the same. For Petitioners : Mr.M.Elango For Respondents 1 & 2 : Mr.TR.Rajagopalan, Spl.GP For 3rd Respondent : Mr.R.V.Babu ORDER
The petitioners have sought for issuance of a Writ of Certiorari, to call for the records in G.O.Ms.No.879 Housing and Urban Development dated 28.5.1991 published in the Tamil Nadu Government Gazette on 19.06.1991 with regard to the Notification, issued under Section 4 of the Land Acquisition Act and G.O.Ms.No.447 Housing and Urban Development dated on 20.07.1992 published in the Tamil Nadu Government Gazettee Extraordinary on 21.07.1992, with regard to the declaration under Section 6 of the Land Acquisition Act, issued by the Secretary to the Government, Housing and Urban Development, first respondent herein, and to quash the same.
2. The challenge to the above said proceedings, viz., Notification and Declaration made under Sections 4(1) and 6(1) of the Land Acquisition Act (herein after referred to 'the Act') respectively, is in respect of the lands comprised measuring 0.91.0 hectares in S.No.66/1, Kottagoundam Patti village, Omalur taluk, Salem District.
3. From the supporting affidavit to the writ petition, as well as the material documents enclosed in the form of typed set, it could be deduced that, the petitioners have claimed to be the joint owners of the above said lands. Pursuant to the proposal made by the Tamil Nadu Housing Board, a Notification under Section 4(1) of the Act has been published on 19.06.1991 in the Tamil Nadu Gazettee in G.O.Ms.No.879, dated 28.05.1991 for the purpose of Salem Neighbourhood Scheme. Thereafter, notice under Section 5(A) of the Act has been issued to the petitioners by the Special Tahsildar, second respondent herein, on 16.09.1991 in ROC No.798/1987. It is the case of the petitioners that they have submitted their objections on 01.10.1991 and also attended the enquiry held on 09.10.1991. It is their case that thereafter, a notice under Section 3(b) of the Act, was issued on 18.11.1991, directing appearance of the petitioners before the Special Tahsildar on 28.11.1991. According to the petitioners, they have made their objections and that they were overruled, without considering the material facts, and consequently, recommendation has been made, for acquiring the lands, measuring 0.91.0 hectares in S.No.66/1. Consequently, a declaration under Section 6 of the Act was issued in G.O.Ms.No.447 Housing and Urban Development, dated 20.7.1992 and published in the Tamil Nadu Government Extraordinary Gazettee on 21.07.1992, declaring that the above said lands have been acquired for the purpose of construction of houses, by the Tamil Nadu Housing Board under the Salem Neighbourhood Scheme. After the publication of the declaration under Section 6 of the Act, the Special Tahsildar has passed an Award in Award No.1/94-95 dated 20.7.1994.
4. Material on record disclose that after the Award, dated 20.07.1994, Smt.Pullaiyammal and the petitioners 4 to 6 have filed W.P.No.15236 of 1994 before this Court, challenging the acquisition proceedings of the abovesaid lands. While admitting the writ petition, by an order, dated 30.08.1994, this Court has granted interim stay of dispossession, pursuant to which, possession of the subject lands was not taken over. The above said Writ Petition No.15236 of 1994 came to be dismissed on 17.8.2001. The above said facts could be culled out from the counter affidavit, filed by the Special Tahsildar, the second respondent herein.
5. Consequent to the dismissal of W.P.No.15236 of 1994 on 17.8.2001, a draft declaration under Section 7 of the Act has been approved in Govt.Letter No.20355/2-94(1) Housing and Urban Development Department, dated 24.6.1994 and published in pages 1-2 of Part II, Section 2 of the Tamil Nadu Government Gazettee Extraordinary issue No.334, dated 24.6.1994. The then Special Tahsildar (Land Acquisition) has passed an Award, in respect of 9.88.5 Hectares, in Award proceedings No.1/94-95 on 20.7.1994. Similarly, for an extent of 0.53.0 Hectares in S.No.63/2A and 63/20C, the then Special Tahsildar (LA) passed an award in Award No.2/97-98, dated 30.1.1997 and also passed another award in Award No.3/98-99, dated 26.3.1999 for an extent of 6.57.6 Hectares in S.Nos.63/1A, 65/3 and 66/2. Thus for a total extent of land measuring 17.10.0 Hectares, three Awards have been passed, details of the same are tabulated hereunder:
Sl.No Award No. Date Extent & S.No.
1. 1/94-95 20.7.1994 9.99.5 Hectares in S.Nos.63/2A &63/2C
2. 2/97-98 30.01.1997 0.53.0 Hectares in S.No.63/2A & 63/2C
3. 3/98-99 26.3.1999
6.57.6 Hectares in S.No.63/1A, 65/3 and 66/2
6. The above said facts are culled out from the counter affidavit filed by the then Special Tahsildar (LA), Salem in W.PNo.36491 of 2004. In para 4 of the counter affidavit therein, it could be further deduced that after the publication of the draft declaration under Section 6 of the Act, this Court granted interim stay, in W.P.Nos.13955, 17590 and 13943 of 1992, and 17589 & 8844 of 1993, in respect of land measuring 11.24.5 Hectares.
7. As stated supra, W.P.No.15236 of 1994 pertains to the land measuring 0.91.0 Hectares in S.No.66/1 situated in Kottagoundam Patti village, Omalur taluk, Salem District, wherein, while admitting the said writ petition, this Court has granted interm stay of dispossession on 30.08.1994 and subsequently, dismissed the said writ petition on 17.8.2001.
8. From the reading of the counter affidavit filed by the then Special Tahsildar (LA) in W.P. No.36491 of 2004, it could be further deduced that, a notice under Section 9(1), 9(3) and 10 of the Act, has been issued to the petitioners on 9.6.1994, directing them to attend the Award enquiry, scheduled on 29.6.1994. Pursuant to the same, the petitioners have attended the Award enquiry on 29.6.1994 and thereafter, an Award has been passed in Award No.1/94 on 20.7.1994. When the respondents wanted to take possession of the lands by invoking Section 47 of the Act, another W.P.No.36491 of 2004 has been filed by Thiru.Rakkiannna Gounder, 3rd petitioner herein, along with Mr.R.Rajaram and Mr.R.Murugesan, petitioners 1 and 2 in the present writ petition, challenging the Award, on the ground that the Award was not passed, within the prescribed period provided for, under the Act. The then Special Tahsildar has filed a counter affidavit to the said writ petition, wherein, he has stated that the Award has been passed within the period of two years from the date of publication of the declaration under Section 6 of the Act. The details of the publication of declaration, under Section 6, till the date of passing of the Award as stated, in the counter affidavit filed in W.P.No.36491 of 2004 are extracted hereunder:
Date of publication of declaration Under Section 6 of the Act .. 21.07.1992 Due date for passing of Award .. 20.07.1994 Date of passing of Award (Award No.1/94-05) .. 20.7.1994
9. In the said counter affidavit filed by the Special Tahsildar, it has also been stated that an award to an extent of 3.55.5 Hectares (8.78 acres) in S.No.65/3 in Kottagoundampatti village, Omalur Taluk, Salem District, was passed in Award No.3/98-99, dated 26.3.1999 and out of 8.78 acres, covered under the award, 5.99 acres have already been handed over to Salem Housing Unit, Salem and action had been taken to take possession of the balance, 2.79 acres under Section 47 of the Act.
10. In so far as, taking over possession of the land in S.No.66/1 measuring 0.91.0 Hectares, is concerned, after the dismissal of W.P.No.15236 of 1994 on 17.8.2001 and after passing of the Award No.1/94-95, Mr.Rakkiannna Gounder, 3rd petitioner herein along with Mr.R.Rajaram and Mr.R.Murugesan, petitioners 1 and 2 herein, have filed another W.P.No.36491 of 2004, challenging the said Award. By order, dated 20.12.2004, in W.P.M.P.No.43822 of 2004, this Court has granted interim stay of dispossession, in respect of lands, in S.No.66/1 measuring 0.91.0 Hectares (half share).
11. Thus from the above facts culled out from the counter affidavit filed in W.P.No.36491 of 2004, it could be deduced that from 30.08.1994, there was an order of interim stay of dispossession in W.M.P.No.23034 of 1994 in W.P.No.15236 of 1994, till the said Writ Petition came to be dismissed on 17.8.2001. Thereafter, after giving notice under Section 9(1), (3) and 10 of the Act on 9.6.1994 to the petitioners and after the award enquiry on 29.6.1994, an award in Award No.1/94-95 has been passed on 20.7.1994, by acquiring the lands measuring 0.91.0 Hectares in S.No.66/1, Kottagoundam Patti Village, Omalur Taluk, Salem District. When possession was sought to be taken under Section 47of the Act, the petitioners 1 to 3 herein have filed W.P.No.36491 of 2004, wherein, on 20.12.2004 and this Court, while admitting the same, has granted interim stay of dispossession in W.P.M.P.No.43622 of 2004.
12. Though by referring Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 and placing reliance on the decision of the Hon'ble Apex Court in Pune Municipal Corporation v. Harakchand Misirimal Solanki reported in 2014 (1) CTC 755, as well as the date of the Award No.1/94-95, ie., 20.07.1994, covering the subject lands, measuring 0.91.0 Hectares in S.No.66/1, Kottagoundam Patti Village, Omalur Taluk, Salem District, Mr.M.Elango, learned counsel appearing for the petitioners submitted that in a case, where an award has been made five years or more prior to the commencement of the abovesaid Act and when physical possession of the land, which had not been taken over or the compensation had not been paid, such acquisition proceedings shall be deemed to have been lapsed, by virtue of Section 24(2) of the abovesaid Act, this Court is not inclined to accept the contention of the learned counsel for the petitioners on the facts and circumstances of this case.
13. According to Mr.M.Elango, learned counsel for the petitioner, in view of the decision of the Apex Court in Pune Municipal Corporation v. Harakchand Misirimal Solanki reported in 2014 (1) CTC 755, it is suffice to satisfy the Court that physical possession of the land had not been taken, where an award has been made, five years or more, prior to the commencement of the Act and all the proceedings would lapse.
14. At this juncture, this Court deems it fit to extract Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, which deals with land acquisition proceedings under Act No.1 of 1894 shall be deemed to have lapsed in certain cases, as under:
(2) Notwithstanding anything contained in sub-section (1), in case of land acquisition proceedings initiated under the Land Acquisition Act. 1894, where an award under the said section 11 has been made five years or more prior to the commencement of this Act but the physical possession of the land has not been taken or the compensation has not been paid the said proceedings shall be deemed to have lapsed and the appropriate Government, if it so chooses, shall initiate the proceedings of such land acquisition afresh in accordance with the provisions of this Act:
Provided that where an award has been made and compensation in respect of a majority of land holdings has not been deposited in the account of the beneficiaries, then, all beneficiaries specified in the notification for acquisition under section 4 of the said Land Acquisition Act, shall be entitled to compensation in accordance with the provisions of this Act.
15. As stated supra, there was an order of interim stay of dispossession in W.P.No.15236 of 1994 and therefore, possession of the lands, cannot be taken. The said Writ Petition has been dismissed on 17.08.2011 and an award has been passed on 20.07.1994. As per Section 16 of the Act, when the Collector makes an Award under Section 11, he may take possession of the land, which shall thereupon vest with the Government, free from all encumbrances. As explained above, award has been passed, within the prescribed period of two years. At this juncture, at the risk of repetition, this Court deems it fit to extract the details relating to the publication of declaration under Section 6 of the Old Act and the date of passing of the award.
Date of publication of declaration under Section 6 of the Act 21.07.1992 Due date for passing of Award 20.07.1994 Date of passing of Award (Award No.1/94-05) 20.07.1994
16. Thus, the award passed, cannot be said to be beyond the period, as provided for, under Section 11(A) of the Act. As per Section 47 of the Act, if the Collector is opposed or impeded in taking possession under this Act of any land, he shall, if a Magistrate enforce the surrender of the land to himself, and, if not a Magistrate, he shall apply to a Magistrate or (within the towns of Calcutta, Madras and Bombay) to the Commissioner of Police and such Magistrate or Commissioner (as the case may be) shall enforce the surrender of the land to the Collector.
17. It is to be noted that from 30.08.1994 to 17.08.2001, the respondents have been restrained from taking possession, by an interim order of this Court in W.P.No.15236 of 1994 and thereafter, on and from 20.12.2004 in W.P.M.P.No.43822 of 2004 in W.P.No.36491 of 2004, again there is interim stay of dispossession. As stated supra, the interregnum period is three years.
18. When this Court has granted an interim order, not to take possession of the lands, subject matter of the writ petition, it cannot be said that the Land Acquisition Officers, have failed to take physical possession of the lands, wherein, an award under Section 11, has already been made. Having obtained an interim order of dispossession in W.P.No.15236 of 1994, on 30.08.1994, it is not open to the petitioners to find fault with the authorities and contend that possession was not taken. If any attempt to take possession of the subject lands in S.No.66/1, measuring 0.91.0 Hectares, had been made, that would tantamount to interference with administration of justice and the respondents would have been called upon by this Court, to answer any proceedings, for disobedience of the interim orders, not to take possession.
19. After the dismissal of Writ Petition No.15236 of 1994, on 17.08.2001, the respondents have taken steps under Section 47 of the Act, within three years, but the petitioners have once again filed another W.P.No.36491 of 2004 and obtained an interim injunction, restraining the respondents from dispossessing them.
20. When this Court has issued interim orders, directing the respondents not to dispossess the petitioners from the lands, it is not open to the petitioners to contend that, in disobedience of the orders of this Court, the respondents ought to have taken possession. On the facts and circumstances of the case, Section 24(2) of the abovesaid Act, is not at all attracted. Having obtained interim orders and prevented the respondents from taking possession, it is not open to the petitioners to contend that the possession was not taken, even after a lapse of five years. If there was no interim order from this Court, restraining the respondents from taking possession, then they would have taken possession, by invoking Section 47 of the Land Acquisition Act, 1894. As stated supra, when the respondents invoked Section 47 of the Old Act, again they have been restrained, by virtue of an interim order. It is to be noted that Writ Petition No.36491 of 2004, is stated to be still pending on the file of this Court, wherein, interim stay of dispossession is still in force. In view of the orders of interim stay, it cannot be said that the respondents have failed to take possession of the land.
21. As regards, the period of stay, how to be computed, attention of this Court was invited to the judgment reported in 2002 (2) CTC 55 [Padmasundara Rao (Dead) v. State of T.N.], wherein, at Paragraphs 7, 14 and 16, held as follows:
7. 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.
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., v. 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.
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 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.
22. In Ashok Kumar v. State of Haryana reported in 2007 (5) MLJ 606, the Hon'ble Apex Court, has explained, as to how, the period covered, under the interim order, should be computed. It also dealt with the matter, where an interim order granted earlier, was not extended to further period. At Paragraphs 2 to 7, the Court held as follows:
2. Appellants herein are owners of lands appurtenant to Khasra Nos.3829, 3839 and 3831. They acquired the said lands in 1993 and allegedly raised certain construction thereupon. A notification under Section 4(1) of the Land Acquisition Act, 1894 (for short, 'the Act') was issued on 20.12.1996 for acquisition of the said lands. A suit was filed by the appellants herein in the Court of the Civil Judge, Senior Division, Panipat, questioning the validity of the said notification, inter alia, on the premise that the said proceeding was illegal and in any event the constructions raised by them cannot be demolished in view of a policy decision taken by the State. On an application for grant of injunction filed by the appellants, an order of interim injunction was passed on 30.08.1997 in the following terms :
"For written statement, no reply to injunction application and arguments on the same, to come up on 23.9.1997. In the meantime, the defendants are restrained from demolishing the construction and initiating further action on the memo in dispute as according to the Jamabandi disputed property is in the shape of Gair Mumkin Plots and it is arguable point as to whether the provisions of Punjab Scheduled Roads Act are applicable to the Gair Mumkin plots or not."
3. Indisputably, the said interim order was extended from time to time, as would be noticed hereinafter. By an order dated 24.09.1997 while adjourning the suit to 29.11.1997, the order of stay dated 30.08.1997 was extended. On 29.11.1997, the following order was passed :
''....The case is adjourned to 9.1.1998 for filing of written statement and reply to the injunction application. Till then stay order dated 30.8.98 is extended." [Emphasis supplied]
4. Yet again by an order dated 09.01.1998, the stay order was extended till 23.03.1998. Similar order was passed on 23.03.1998. The matter was, however, placed on 28.07.1998 on the ground that the Presiding Officer was to remain on leave on 29.07.1998. The matter was adjourned to 09.09.1998. However, the order of injunction was not extended.
5. After some adjournments, the suit was dismissed for default on 19.08.2000.
6. A declaration under Section 6 of the Act was issued on 29.11.2000.
7. A writ petition was filed questioning the legality and/or validity of the said direction before the Punjab & Haryana High Court, which was registered as C.W.P. No. 11329 of 2002. By reason of the impugned judgment the said writ petition has been dismissed by a Division Bench of the High Court, inter alia, opining :
"The position, as explained in the written statement, appears to be correct. Simply because, while adjourning the case the Presiding Officer was not holding the Court, a day earlier to the date fixed, where orders with regard to stay are silent, would not mean that stay was vacated. In any case, case remained pending after the adjourned date, as mentioned above, as well and it is the positive case of respondents that stay was operative till such time suit was dismissed in default on 19.8.2000. Even otherwise, we are of the firm view that if once stay is granted and same is not specifically vacated and the case is simply adjourned, it cannot be interpreted to mean that stay was operative only upto a date when case was adjourned without passing any order with regard to extension or otherwise of stay. The petitioners, it appears, have intentionally withheld the orders passed after the case was adjourned to 9.9.1998"
A review application filed there against was also dismissed.'' After considering the rival submissions of the learned counsel, appearing for the parties and the relevant provisions, the Apex Court, at Paragraphs 10 to 18, further held as follows:
10. The short question which arises for consideration in this appeal is as to whether the order of ad interim injunction granted by the learned Civil Judge, Senior Division, Panipat, was operative till 09.09.1998 or 19.08.2000. We have noticed hereinbefore the nature of the orders passed by the learned Civil Judge. Although in its order dated 30.08.1997, the learned Civil Judge, used the term "In the meantime", which was repeated in its order dated 24.09.1997, but in the subsequent orders beginning from 29.11.1997, the expression used was "till then".
11. The term of the order of the learned Judge, in our opinion, does not leave any manner of doubt whatsoever that the interim order was only extended from time to time. The interim order having been extended till a particular date, the contention raised by the respondents herein that they were under a bona fide belief that the injunction order would continue till it was vacated cannot be accepted.
12. In our considered opinion, the purport of the order passed by the learned Civil Judge, Senior Division, Panipat, in extending the order of injunction is absolutely clear and explicit. It may be true that the date was preponed to 28.07.1998, but from a bare perusal of the order passed by the learned Civil Judge, Senior Division, it is evident that the order of injunction was not extended. Even on the subsequent dates, the order of injunction was not extended. In fact, no order extending the period was passed nor any fresh order of injunction was passed by the learned Civil Judge, Senior Division, subsequent thereto.
13. Proviso (ii) appended to sub-section (1) of Section 6 of the Act clearly debars making of any declaration in respect of any particular land covered by a notification issued under sub-section (1) of Section 4 after the expiry of one year from the date of publication thereof. Explanation (1) appended to the said proviso, however, stipulates that 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(1), is stayed by an order of a Court, shall be excluded. On a plain reading of the aforementioned provisions, there cannot be any doubt whatsoever that the period which is required to be excluded would be one, during which the action or proceeding taken was subjected to any order of stay passed by a competent court of law.
14. Provisions of the Act should be construed having regard to the purport and intent thereof. Section 6 of the Act is beneficent to the land owners.
15. In Hindustan Petroleum Corporation Ltd. v. Darius Shapur Chenai and Others [(2005) 7 SCC 622], it was held :
"The Act is an expropriatory legislation. This Court in State of M.P. v. Vishnu Prasad Sharma observed that in such a case the provisions of the statute should be strictly construed as it deprives a person of his land without consent. [See also Khub Chand v. State of Rajasthan and CCE v. Orient Fabrics (P) Ltd."
16. We have noticed hereinbefore that the proviso appended to sub- section (1) of Section 6 is in the negative term. It is, therefore, mandatory in nature. Any declaration made after the expiry of one year from the date of the publication of the notification under sub-section (1) of Section 4 would be void and of no effect. An enabling provision has been made by reason of the explanation appended thereto, but the same was done only for the purpose of extending the period of limitation and not for any other purpose. The purport and object of the provisions of the Act and in particular the proviso which had been inserted by act 68 of 1984 and which came into force w.e.f. 24.09.1984 must be given its full effect. The said provision was inserted for the benefit of the owners of land. Such a statutory benefit, thus, cannot be taken away by a purported construction of an order of a court which, in our opinion, is absolutely clear and explicit.
17. There is no warrant for the proposition, as was stated by the High Court that unless an order of stay passed once even for the limited period is vacated by an express order or otherwise; the same would continue to operate.
18. We, therefore, are of the opinion that the judgment of the High Court cannot be sustained, which is set aside accordingly. The appeal is allowed. In the facts and circumstances, there shall, however, be no order as to costs.''
23. In Om Prakash v. Union of India reported in 2010(4) SCC 17, the Apex Court has considered the above aspect, as hereunder:
3. These appeals arise out of Judgment and Order passed by Delhi High Court in Writ Petitions preferred by appellant and other similarly situated appellants under Article 226 of the Constitution of India, wherein challenge was primarily and basically to the declaration/notifications issued by Delhi Administration under Section 6 of the Act. The said petitions having been dismissed by different Orders passed by Division Benches of Delhi High Court, these appellants are before us challenging the same on variety of grounds.
4. The cases have a long and chequered history. For the sake of convenience, we are taking the facts of the civil appeal arising out of SLP (C) No. 9389 of 2005, Om Prakash Vs. Union of India and Others as issue involved in these cases is almost identical and common.
5. Shorn of unnecessary details, the brief facts of the case are mentioned hereinbelow. Notifications under Section 4 of the Act were issued on two different dates, viz., 5.11.1980 and 25.11.1980. Pursuant thereto, further declarations/notifications as contemplated under Section 6 of the Act were issued on 20.5.1985, 6.6.1985, 7.6.1985 and 26.2.1986.
6. Admittedly, appellant and several such other appellants are in possession as owners of different parcels of land situated in 13 villages, within Delhi. Notifications issued under Section 4 for planned development of Delhi had a caveat that three types of land were exempted from the purview of these notifications i.e government land, land already notified under Section 4 or 6 of the Act or land in respect of which lay-out plans/building plans were sanctioned by Municipal Corporation of Delhi before 05.11.1980.
7. It is not in dispute that initially appellants had not challenged the notifications issued under Section 4 of the Act, by filing writ petitions or resorting to any other remedy in accordance with law. Obviously, there could not have been any order of stay passed by any court in their favour. In other words, there was no order of restraint from issuance of declaration under Section 6 of the Act.
8. According to the appellants, the Act provides that the said declaration should have been issued within a period of three years from the date of issuance of notifications under Section 4 of the Act, that is to say, positively on or before 24.11.1983. But no such declaration having been issued on or before 24.11.1983, i.e., within the statutory period of three years, it is contended that acquisition is illegal and void qua appellants' lands. In the aforesaid appeal, last declaration under Section 6 of the Act was finally issued on 07.06.1985, which according to the appellant, was clearly beyond statutory period of three years. Thus, whole proceedings of acquisition should be rendered illegal and void ab initio. However, the last declaration was still issued on 26.2.1986.
9. It has also been appellants' case that the stay order granted in favour of the other land-owners, who had challenged either the notification issued under Section 4 of the Act or the declaration under Section 6 of the Act, would not be applicable or operative to the appellants' land as obviously it would be confined only to those who had approached the Court and were granted stay.
10. Like appellant, there were many such land-owners who had challenged the said declaration/notification issued under Section 6 of the Act before the High Court of Delhi and their petitions having been allowed on 14.8.1988, appellant claimed parity on the ground that due to some bona-fide mistake, the appellant's petition which was filed in the year 1987 could not be listed along with batch matters but subsequently, appellant's petition came to be dismissed. Thus, for this reason he should not be put to an irreparable loss of losing his land. After considering a catena of decisions, the Hon'ble Supreme Court held as follows:
Explanation 1 appended to first proviso of Section 6 of the Act, as reproduced hereinabove, makes it crystal clear that where any order of stay has been granted in favour of land owner, while computing the period of limitation of three years for issuance of Section 6 notification, the actual period covered by such order of stay should be excluded. (Para 62) Initially the appellants had not challenged the notifications issued under Section 4 of the Act, by filing writ petitions or resorting to any other remedy in accordance with law. Obviously, there could not have been any order of stay passed by any Court in their favour. In other words, there was no order of restraint from issuance of declaration under Section 6 of the Act. (Para 7) Interpreting word 'any' in Explanation 1 to the first proviso to Section 6, expands the scope of stay order granted in one case of land owners to be automatically extended to all those land owners, whose lands are covered under the notifications issued under Section 4 of the Act, irrespective of the fact whether there was any separate order of stay, as regards their lands. Besides, each of notifications issued under Section 4 of the Act was composite in nature. Hence, in terms of such interim orders of stay, the respondent Union of India could not have proceeded further to issue declaration under Section 6. As soon as the interim stay came to be vacated the respondents, taking advantage of the period of stay during which they were restrained from issuance of declaration under Section 6, proceeded further and issued notification. (Paras 70 and 71) Thus, the interim order of stay granted in one of the matters of the land owners would put complete restraint on the respondents to have proceeded further to issue notification under Section 6 of the Act. Had they issued the said notification during the period when the stay was operative, then obviously they may have been hauled up for committing contempt of court. The language employed in the interim orders of stay is also such that it had completely restrained the respondents from proceeding further in the matter by issuing declaration/notification under Section 6 of the Act.
Further, the language of Section 6 of the Act implies that declarations can be issued piecemeal and it is not necessary to issue one single declaration for whole of the area which is covered under notification issued under Section 4 of the Act. In the instant case, as many as four declarations under the Act were issued from time to time. Finally when declaration is quashed by any Court, it would only enure to the benefit of those who had approached the Court and not to those, who might have gone into slumber. At this long distance of time, it would neither be proper nor legally justified to grant that benefit to the appellants. If it is granted to even those who had not approached the court, then it would frustrate the very purpose and scope of the Act. Obviously, the appellants cannot be rewarded on account of their own lapse as they should have been vigilant enough to get their matters also listed along with those in whose favour ultimately judgment was pronounced.
The Land Acquisition Officer had heard the objections and thereafter, forwarded the same to Lieutenant Governor for his opinion. On scrutinising the manner in which the Lieutenant Governor had dealt with the matter, no legality or infirmity in procedure discernible. There was application of mind by Lieutenant Governor and thus, compliance with legal provisions. (Paras 89 and 94) As far as delay and laches is concerned, the appellants were under some bonafide mistake and had not challenged the issuance of notification/declaration, within reasonable time, because they believed that they were not supposed to take any action during continuation of stay order. Proceedings for acquisition were initiated in 1980 while petitions were filed in the year 2000 or subsequently. Hence, though they have tried to explain the delay but such long delay cannot be condoned. It would not only be harsh but inequitable also to quash the notifications and grant liberty to the appellants to challenge the same. (Paras 92 and 93) In a nutshell, the notification under Section 4(1) being composite one it cannot be quashed, more so, when most of the appellants had not filed any objections under Section 5-A. Further, unless the declarations issued by the respondents on as many as four dates are queshed in toto, it cannot be said that the respondents could not have proceeded further with regard to acquisition of those lands for which the same had not been quashed earlier. In other words, all remaining lands for which neither notifications nor declarations have been quashed, acquisition proceedings would continue to hold good and the respondents can proceed further. (Paras 95, 96 and 97)
24. In the light of the decision reported in Om Prakash's case (cited supra), the contentions of the petitioners in this writ petition, are wholly untenable, moreso, when the petitioners themselves have obtained an interim order of dispossession.
25. Having regard to the judgments of the Hon'ble Supreme Court, as to how the period has to be computed, when there is an order of interim stay, with due respect, the judgment made in Pune Municipal Corporation's case (cited supra), is not applicable to the case on hand. The petitioners have prevented the respondents from taking possession, by obtaining an interim order and taking advantage of the same, they now seek to quash the acquisition proceedings, which has culminated into award in the year 1994 itself.
26. There is absolutely no merit in the writ petition, warranting interference from this Court. Accordingly, the Writ Petition fails and it is dismissed. No costs.
28.02.2014 Index: Yes Internet: Yes suk/skm To
1.The Secretary to Government, Housing and Urban Development Department, Fort St.George, Chennai-600 009.
2.The Special Tahsildar (Land Acquisition), Neighbourhood Scheme, Salem-600 008.
3.The Tamilnadu Hosing Board, rep. By its Executive Engineer & Administrative Officer, Salem Housing Unit, Salem-636 008.
S. MANIKUMAR, J.
skm Writ Petition No.6039 of 2014 28.02.2014