M/s. Jambu Raghavan & Co. Pvt. Ltd. v. The State of Tamil Nadu

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 15.4.2009C O R A M :THE HONOURABLE MR. JUSTICE K. CHANDRUW.P.No.16642 of 2001M/s.Jambu Raghavan & Co.Pvt.Ltd. rep.by its Director,Janbagam Buildings,284, R.G.Street, Coimbatore... Petitioner-vs-1.The State of Tamil Nadu, rep.bythe Commissioner and Secretary to Government, Housing and Urban DevelopmentDepartment, Fort St.George,Chennai-9. 2.The Special Tahsildar-Unit-III,Housing Scheme,Collectorate, Coimbatore-18.3.The Tamil Nadu Housing Board,rep.by its Chairman,331, Anna Salai, Chennai-600 035. ..RespondentsPRAYER : Petition filed under Article 226 of the Constitution ofIndia praying for the issuance of a writ of mandamus forbearing therespondents from proceeding further with the land acquisitionproceedings in respect of the petitioner's land pursuant to thenotification issued under section 4(1) of the Land Acquisition Act inG.O.Ms.No.820, Housing and Urban Development Department, dated17.8.1982. https://hcservices.ecourts.gov.in/hcservices/ For petitioner: Mr.Vijay Narayan,Senior Advocate for Mr.R.ParthibanFor respondents: Mr.A.Arumugam, Spl.G.P. (R1&2) Mr.A.Vijayakumar, GA (R3)*****O R D E R Heard both sides and perused the records.2. This is a second round of litigation by the petitionerCompany. In the first round of litigation, the petitioner challengedthe section 4(1) notification issued under G.O.Ms.No.820, Housing andUrban Development Department dated 17.8.1982 and the section 6declaration made under G.O.Ms.No.843, Housing and Urban DevelopmentDepartment, dated 23.8.1985. 3. The writ petition filed by them in W.P.No.13414 of 1989 cameto be allowed by a judgment dated 08.12.1988. In that order, theentire proceedings including the Section 4(1) notification wasquashed. Subsequently, the respondent State filed an appeal beingW.A.No.299 of 2000. The said writ appeal was partly allowed by aDivision Bench of this Court vide judgment dated 07.9.2000. In para 4of the order, it was observed as follows:-''4. We have already clarified that what was found faultwas the procedure, in not supplying the copy of the repliesby the acquiring body on the objectors as also passing ofthe Award without issuing the notices under sections 9 and10 of the Act. Therefore, it is clear that the wholeproceedings could not be said to have been quashed and whatcould be quashed is only the declaration under Section 6 ofthe Act and all further proceedings including the Awardpassed. We hold accordingly, the order shall be modified tothe extent that the declaration under section 6 of the Actand all further proceedings shall be treated to be quashed,saving the Notification under Section 4(1) of the Act."4. After the order of the Division Bench, a notice under section5A was issued to the petitioner Company fixing the date of enquiry as16.5.2001. Thereafter, the petitioner started sending severalrequests for adjournment. Since the requests for adjournment were notbona fide, the extension of time sought for was rejected and adeclaration under section 6 was published in the Government Gazettedated 04.9.2001; in the local newspapers on 05.9.2001 and 06.9.2001.The locality publication was made on 06.9.2001. Subsequently, thepetitioner filed once again the present writ petition challenging the https://hcservices.ecourts.gov.in/hcservices/ section 4(1) notification. The following grounds found in para 12(B)and (c) were raised, which are as follows:-''(B). It is further submitted that the Proviso toSection 6(1) states that a Declaration in respect of aNotification issued under Section 4 cannot be made after theexpiry of 3 years from the date of publication of thenotification in the case of a Notification which was issuedbefore the commencement of the Land Acquisition (Amendment)Act, 1984. In the instant case, the Notification underSection 4(1) was issued on 17.8.1982 and was published inthe Government Gazette on 01.9.1982. Thus, the Declarationunder Section 6(1) of the Act should have been made on orbefore 01.9.1985 and in the instant case, the Declarationwas actually made on 23.6.1985 just 7 days prior to theperiod of limitation. Thereafter, this Declaration wasstruck down by the Court on 08.12.1988 along with Section 4(1) Notification, but the Notification under Section 4(1)was revalidated on 07.9.2000. Hence, the limitation formaking the Declaration was for a further period of 7 daysonly till 14.9.2000. Inasmuch as the Declaration has notbeen made within the prescribed date of 14.9.2000, the landacquisition proceedings abate and are liable to be quashedon that ground.(C) It is further submitted that the explanation (1) toSection 6(1) states that in computing the period of 3 years,the period during which any action or proceedings to betaken in pursuance of a Notification issued under Section 4(1) is stayed by an order of the Court, shall be excluded.During the period from 01.9.1982 to 23.8.1985 there was nostay. The period of limitation expired on 01.9.1985 andtherefore when the declaration was actually made, there wasonly 7 days left for the period of limitation to expire.Thereafter when the Notification under Section 4(1) wasrevalidated, the Declaration ought to have been made withinthat period of 7 days and inasmuch as it has not been madewithin that period, the entire proceedings are illegal andare liable to be quashed."5. In response to these objections, the respondents in theircounter affidavit dated 07.11.2001 have made the following avermentsin page 4, which are as follows:-''The contention of the writ petitioner is not correct. Thewrit petitioner in para (B) under Grounds has stated thatthis declaration was struck down by the Court on 08.12.88(in W.P.No.13414/89) along with sec.4(1) Notification butthe notification under section 4(1) was revalidated on07.9.2000 (W.A.No.299/2000). As by this order the 4(1) https://hcservices.ecourts.gov.in/hcservices/ notification was revalidated, the limitation for making theDeclaration under sec.6 will be one year and in this casethe due date for the Declaration u/s.6 is 6.9.2001 and allthe process under sec.6 was completed by 6.9.2001 asfollows:-Tamil Nadu Government Gazette ..04.9.2001Newspaper publication ..05.9.2001 &^ 06.9.2001Locality publication ..06.9.2001 It is also submitted that according to LandAcquisition (Amendment) Act, 1984 the proviso to sec.6(1)states that a Declaration in respect of a notificationunder section 4 cannot be made after the expiry of 1 (one)year. In this case, the declaration is made before 7.9.2001and hence it is a valid one."6. Mr.Vijay Narayan, learned Senior Counsel for the petitionersplaced reliance upon the judgment of the Supreme Court in OxfordEnglish School -vs- Government of T.N.and others reported in (1995) 5SCC 206. He also submitted that the said decision came to be approvedby a Constitution Bench of the Supreme Court in Padma Sundara Rao(Dead) and others -vs- State of T.N. and others reported in (2002) 3SCC 533. Reliance was placed upon paragraph 11 of the said judgment,which may be usefully extracted below:-"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(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 to https://hcservices.ecourts.gov.in/hcservices/ be 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." 7. Therefore, the learned Senior Counsel placed emphasis onExplanation 1 to Section 6 and stated that the publication of theDeclaration was beyond the period stipulated. It must be relevant tonote that the Explanation 1 to Section 6 is almost similar toExplanation to Section 11A of the Land Acquisition Act, 1894. 8. 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 sodesired, 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 said https://hcservices.ecourts.gov.in/hcservices/ Act.”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 rendersunrealistic 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 the https://hcservices.ecourts.gov.in/hcservices/ widest 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) 9. Therefore, in the present case, it is not the exclusion of theperiod during which any stay order is obtained by the parties. Whenthe learned Judge who dealt with W.P.No.13414 of 1989. The entireproceedings including section 4(1) notification was quashed by ajudgment dated 08.12.1998 and there was nothing further for the Stateto do in that matter. It was only after the State's Writ Appeal inW.A.No.299 of 2000 was allowed by a Division Bench vide judgmentdated 07.9.2000, the section 4(1) notification got revalidated.Therefore, it was not a question of calculating any period duringwhich any interim stay was obtained by the parties. But the section4(1) notification was brought to life by the order of the DivisionBench on 07.9.2000. 10. The State had published the section 6 Declaration on06.9.2001 despite the attempt by the petitioner to repeatedly seekadjournments and avoiding section 5A enquiry. The purpose of fixinglimitation is to prevent the State from procrastinating in completingthe acquisition proceedings. But the petitioners themselves cannottake advantage of their own wrong and seek to invalidate theacquisition proceedings on a technical plea, that too, by having asecond round of litigation. https://hcservices.ecourts.gov.in/hcservices/

11. The writ petition is misconceived and accordingly will standdismissed. However, there will be no order as to costs.Sd/Asst.Registrar/true copy/Sub Asst.Registrarjs To1.The Commissioner and Secretary to Government, Housing and Urban DevelopmentDepartment, Fort St.George,Chennai-9. 2.The Special Tahsildar-Unit-III, Housing Scheme,Collectorate, Coimbatore-18.3. The Chairman,Tamil Nadu Housing Board,331, Anna Salai, Chennai-600 035. 1 CC To Mr.R.Parthiban, Advocate, SR NO.14344 W.P.No.16642 of 2001rsm(co)pmk.21.4.2009