High Court · 2009

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 15.4.2009C O R A M :THE HONOURABLE MR. JUSTICE K. CHANDRUW.P.Nos.10893 and 10894 of 1999Jameela Bi Ammal .. Petitioner in both the writ petitions-vs-1. The Government of Tamil Nadu rep.by its Secretary, Housing and Urban Development Department, Fort St.George, Chennai-600 009.2. The Land Acquisition Officer & Spl.Tahsildar (Land Acquisition), Salem Neighbourhood Scheme, Salem-8. .. Respondents in both the WPs.PRAYER : Petitions filed under Article 226 of the Constitution ofIndia praying for the issuance of a writ of certiorari calling forthe records of the second respondent in Award 2/98-99 dated 10.6.98and 3/97-98 dated 07.1.1998 in respect of S.No.53/2 to an extent of0.44 acres and S.No.53/1A to an extent of 1.75 acres respectivelysituated at Mitta Ayyam Perumalpatti Village, Salem Taluk, SalemDistrict, quash the same.For petitioner: Mr.Md.Ibrahim AliFor respondents: Mr.A.Arumugam, Spl.G.P.*****O R D E R The petitioner being the owner of land in S.No.53/2A to anextent of 0.44 acres (covered by Award in 2/98-99 dated 10.6.1998)and in S.No.53/1A to an extent of 1.75 acres (covered by Award in3/97-98 dated 07.1.1998) situated at Mitta Ayamperumalpatti Village,Salem Taluk, has filed these two writ petitions. https://hcservices.ecourts.gov.in/hcservices/

2. The writ petitions were admitted on 25.3.1999 and an interiminjunction was granted restraining the respondents from interferingwith the peaceful possession and enjoyment of the lands. By an orderdated 01.9.2003, the interim order was made absolute. 3. This is the second round of litigation for the petitioner. Inthe first round, the petitioner challenged the acquisitionproceedings in W.P.Nos.9199 and 9338 of 1984. The writ petitions wereallowed by this Court by a common order dated 23.12.1993. By the saidjudgment, the proceedings for land acquisition was set aside.Subsequently, the respondent State filed Writ Appeals beingW.A.Nos.1265 and 1267 of 1995. A Division Bench of this Court allowedboth the writ appeals by a common judgment dated 04.10.1996 andrestored the acquisition proceedings. During the pendency of the writpetitions, an interim stay was granted in favour of the petitioner. 4. The petitioner preferred an appeal before the Supreme Courtagainst the order of the Division Bench being S.L.P.(Civil) No.1876of 1998. When the matter came up on 16.3.1998, the Supreme Courtpassed the following order and dismissed the S.L.P.:-''It is stated that by Mr.S.Sivasubramanian, the learnedSenior Counsel, the Spl.Tahsildar (LA) Neighbourhood Scheme,Salem has recommended to the higher authority for deletionof the petitioner-society's land. The petitioner proposes totake further steps in the light of the recommendation of theSpl.Tahsildar. In view of this petition is not pressed.Therefore the Special Leave Petition is therefore dismissedas not pressed".5. Subsequent to the order passed by the Division Bench of thisCourt, section 9(1), 10 and 9(3) notices were issued on 08.12.1997.An Award enquiry was conducted on 30.12.1997. The draft Award wasapproved and delivered on 02.1.1998 and 10.6.1998. 6. The petitioner questioned these two Awards on the groundthat the Award was not passed within the statutory period of twoyears in terms of section 11-A of the Land Acquisition Act, 1894. Thelearned counsel submitted that after the declaration under section 6was made on 17.2.1984 till 21.9.1984, when the petitioner obtained aninterim-stay, there was a gap of 7 months and 4 days. From 23.12.1993when the Court allowed the writ petition till the filing of the writappeal on 25.3.1994, there was no stay for a period of 4 months and 3days. Adding these two periods, there was no interim stay for a totalperiod of 11 months and 7 days. Therefore, if the section 11A ispressed into service from the date of the writ appeal order on04.12.1996, there was only a period of one year and 23 days to passthe final award which should have been passed on or before27.11.1997. https://hcservices.ecourts.gov.in/hcservices/

7. In response to this contention, in paragraph 5 of the counteraffidavit dated 13.10.2004, the following averments have been made:-''5. Regarding the averments made in para VIII of theaffidavit, it is submitted that the statutory period of 2years from the date of publication of Declaration underSection 6 of the L.A.Act was calculated as detailed below:- Date of publication of Draft Declaration. ... 17.2.1984 Statutory period commences on ... 24.9.1984 W.P.No.9199/84 (Stay period)D M Y 21.9.1984 to 23.12.1993 2 3 9W.A.No.1266/95 period underwentfrom date of filing 25.3.1994 to04.10.199610 6 2Statutory period 0 0 2 ----------------Total 12 9 13 ----------------Award to be pronounced before (24.9.1984 + 12 913 =) 6.7.1998. As explained above, the award passed withinthe statutory period of 2 years excluding the periodcovered by stay as per Section 11 of the L.A.Act."8. In fact it was the petitioner who was continuing to challengethe order of the Division Bench before the Supreme Court till16.3.1998 when one Award had already been passed by the respondents.She never informed the Supreme Court about the passing of the Awardthough she feigned ignorance about the passing of the Award in theseproceedings. In the present case, it is only by the order of theDivision Bench dated 04.10.1996 the acquisition proceedings wererevived. Therefore, an Award was passed well within the timestipulated under section 11A of the Land Acquisition Act. 9. The learned counsel for the petitioners relied upon thefollowing passage found in para 11 of the judgment of the SupremeCourt in Padmasundara Rao -vs- State of Tamil Nadu reported in (2002)3 SCC 533 :"Para 11: It may be pointed out that the stipulationregarding the urgency in terms of Section 5-A of the Act hasno role to play when the period of limitation under Section6 is reckoned. The purpose for providing the period oflimitation seems to be the avoidance of inconvenience to aperson whose land is sought to be acquired. Compensationgets pegged from the date of notification under Section 4 https://hcservices.ecourts.gov.in/hcservices/ (1). Section 11 provides that the valuation of the land hasto be done on the date of publication of notification underSection 4(1). Section 23 deals with matters to be consideredin determining the compensation. It provides that the marketvalue of the land is to be fixed with reference to the dateof publication of the notification under Section 4(1) of theAct. The prescription of time-limit in that background is,therefore, peremptory in nature. In Ram Chand v. Union ofIndia (1994 (1) SCC 44), it was held by this Court thatthough no period was prescribed, action within a reasonabletime was warranted. The said case related to a dispute whicharose before prescription of specific periods. After thequashing of declaration, the same became non est and waseffaced. It is fairly conceded by learned counsel for therespondents that there is no bar on issuing a freshdeclaration after following the due procedure. It is,however, contended that in case a fresh notification is tobe issued, the market value has to be determined on thebasis of the fresh notification under Section 4(1) of theAct and it may be a costly affair for the State. Even if itis so, the interest of the person whose land is sought to beacquired, cannot be lost sight of. He is to be compensatedfor acquisition of his land. If the acquisition sought to bemade is done in an illogical, illegal or irregular manner,he cannot be made to suffer on that count." 10. The learned counsel also placed further reliance upon thejudgment of the Supreme Court in Ashok Kumar & Others -vs- State ofHaryana & another reported in (2007) 3 SCC 470 and referred to thefollowing passages found in paragraphs 14, 17 and 18 :-''Para 14 : Proviso (ii) appended to sub-section (1) ofSection 6 of the Act clearly debars making of anydeclaration in respect of any particular land covered by anotification issued under sub-section (1) of Section 4after the expiry of one year from the date of publicationthereof. Explanation (1) appended to the said proviso,however, stipulates that in computing any of the periodsreferred to in the first proviso, the period during whichany action or proceeding to be taken in pursuance of thenotification issued under Section 4(1), is stayed by anorder of a court, shall be excluded. On a plain reading ofthe aforementioned provisions, there cannot be any doubtwhatsoever that the period which is required to be excludedwould be one, during which the action or proceeding takenwas subjected to any order of stay passed by a competentcourt of law. Para 17. We have noticed hereinbefore that the provisoappended to sub-section (1) of Section 6 is in the negative https://hcservices.ecourts.gov.in/hcservices/ term. It is, therefore, mandatory in nature. Anydeclaration made after the expiry of one year from the dateof the publication of the notification under sub-section(1) of Section 4 would be void and of no effect. Anenabling provision has been made by reason of theExplanation appended thereto, but the same was done onlyfor the purpose of extending the period of limitation andnot for any other purpose. The purport and object of theprovisions of the Act and in particular the proviso whichhad been inserted by Act 68 of 1984 and which came intoforce w.e.f. 24-9-1984 must be given its full effect. Thesaid provision was inserted for the benefit of the ownersof land. Such a statutory benefit, thus, cannot be takenaway by a purported construction of an order of a courtwhich, in our opinion, is absolutely clear and explicit.Para 18. There is no warrant for the proposition, as wasstated by the High Court that unless an order of staypassed once even for the limited period is vacated by anexpress order or otherwise; the same would continue tooperate." He also submitted that what applies to the Section 6 declaration willalso apply to the Award under Section 11 in terms of Section 11-A ofthe Act.11. The contention of the petitioner is highly contrived. Theexplanation to section 11A does not come into operation when alearned Judge of this Court has quashed the entire proceedings by afinal order. The proceedings got revived only by the orders of theDivision Bench.12. In this context, it is necessary to refer to the decision ofthe Supreme Court which had dealt with the scope of Section 11-A ofthe Act in the case relating to Smt.Bailamma (dead) and others -vs-Poornaprajna House Building Co-operative Society and others reportedin (2006) 2 SCC 416. The following passages found in paragraphs 13,14 and 16 of the said decision may be usefully extracted:-''Para 13. : The submission that the stay order wasobtained by the Society itself is of no consequence, havingregard to the language of Explanation to Section 11-A ofthe Act. The exclusion of the period during which the orderof stay operated is not dependant upon the party obtainingsuch an order. An order passed by the court must be obeyedby all concerned. In the instant case the Society moved theHigh Court and obtained an order of stay. In effect, theorder operated in such a manner that the Government wasprevented from granting approval to the award even if it so https://hcservices.ecourts.gov.in/hcservices/ desired, nor could it refuse approval during the period theorder of stay operated. Therefore, Explanation to Section11-A came into operation and in accordance therewith theperiod during which the order of stay operated must beexcluded from the total time taken to make the award.Para 14. Reliance was placed by the appellants on theobservations made by this Court in Yusufbhai NoormohmedNendoliya v. State of Gujarat (1991) 4 SCC 531). In ourview the aforesaid decision in fact supports the case ofthe respondents. In the aforesaid judgment it was held:(SCC p.535, para 8)“8. The said Explanation is in the widest possibleterms and, in our opinion, there is no warrant forlimiting the action or proceedings referred to in theExplanation to actions or proceedings preceding themaking of the award under Section 11 of the saidAct.”That was no doubt a case where an order of injunction wasobtained by the landholder restraining land acquisitionauthorities from taking possession of the land. It was, inthat context, that this Court observed that to get thebenefit of the said provision the landholder who seeks thebenefit must not have obtained any order from courtrestraining any action or proceedings in pursuance ofdeclaration under Section 6 of the Act. It is, therefore,not possible to accept the submission urged on behalf ofthe appellants that Section 11-A of the Act must be read ina narrow sense so as to apply to only those cases where thelandowner himself obtained an order of stay or injunction.We are not prepared to add words in the Explanation byreading into it a provision that gives to the Explanation anarrower operation than what was intended for it by thelegislature, so as to apply only to cases where an order ofinjunction is obtained by the landowner and not by anyoneelse. ......Para 16. This Court emphasised the fact that Section 11-Awas enacted with a view to prevent inordinate delay beingmade by the Land Acquisition Officer in making the awardwhich deprived owners of the enjoyment of the property orto deal with the land whose possession has already beentaken. Delay in making the award subjected the owner of theland to untold hardship. The objects and reasons forintroducing Section 11-A into the Act were that “thependency of acquisition proceedings for long periods oftencauses hardship to the affected parties and renders https://hcservices.ecourts.gov.in/hcservices/ unrealistic the scale of compensation offered to them” and“it is proposed to provide for a period of two years fromthe date of publication of the declaration under Section 6of the Act within which the Collector should make his awardunder the Act”. The emphasis, therefore, was on theCollector making his award within the period prescribed.However, the legislature was also aware of the reality ofthe situation and was not oblivious of the fact that inmany cases acquisition proceedings were stalled by stayorders obtained from courts of law by interested parties.It, therefore, became imperative that in computing theperiod of two years, the period during which an order ofstay operated, which prevented the authorities from takingany action or proceeding in pursuance of the declaration,must be excluded. If such a provision was not made, anacquisition proceeding could be easily defeated byobtaining an order of stay and prolonging the litigationthereafter. Explanation to Section 11-A was meant to dealwith situations of this kind. The Explanation is in thewidest possible terms which do not limit its operation tocases where an order of stay is obtained by a landowneralone. One can conceive of cases where apart fromlandowners others may be interested in stalling the landacquisition proceeding. It is no doubt true that in most ofthe reported decisions the party that obtained the stayorder happened to be the owner of the land acquired. Butthat will not lead us to the conclusion that theExplanation applied only to cases where stay had beenobtained by the owners of the land. There may be others whomay be interested in obtaining an order of stay beingaggrieved by the acquisition proceeding. It may be that onaccount of development of that area some persons in thevicinity may be adversely affected, or it may be for anyother reason that persons in the locality are adverselyaffected by the project for which acquisition is beingmade. One can imagine many instances in which a personother than the owner may be interested in defeating theacquisition proceeding. Once an order of stay is obtainedand the Government and the Collector are prevented fromtaking any further action pursuant to the declaration, theycannot be faulted for the delay, and therefore, the periodduring which the order of stay operates must be excluded.In a sense, operation of the order of stay provides ajustification for the delay in taking further steps in theacquisition proceeding for which the authorities are not toblame. "(Emphasis Added) 13. If it is seen in the context of the decision referred toabove, it can very well be seen that the Award impugned in this batch https://hcservices.ecourts.gov.in/hcservices/ of writ petitions is not hit by the proviso to Section 11-A of theAct. The manner of calculation urged by the petitioner is notavailable in terms of the Act. 14. In the light of the above, both the writ petitions will standdismissed. There will be no order as to costs.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.jsTo1 The Secretary, Housing and Urban Development Department, Fort St.George, Chennai-600 009.2. The Land Acquisition Officer & Spl.Tahsildar (Land Acquisition), Salem Neighbourhood Scheme, Salem-8.+ 1 CC To Mr.M.Md.Ibrahim Ali, Advocate SR NO.14138+ 1 CC to the Government Pleader SR NO.14609 Order in W.P.Nos.10893 and 10894 of 1999SSR {CO}TP/18.4.2009.