Hari Parshand Sharma v. State of Haryana

The petitioners have challenged the notification dated

18.7.1994 issued under Section 4 of the Land Acquisition Act, 1894 (for brevity `the Act') acquiring their land and the declaration dated

10.2.1998 made under Section 6 of the Act, by filing CWP No. 8645 of

1995. The writ petition was filed on 6.6.1995, which came up for motion hearing on 7.6.1995 when the dispossession of the petitioners from the land in dispute was stayed by the Division Bench. Eventually, declaration dated 28.4.1995 made under Section 6 of the Act was CWP No. 5140 of 1998 2 quashed on 30.5.1997 by this Court and the respondents were given the option to issue fresh declaration under Section 6 of the Act. The basic reason for quashing the declaration made on 28.4.1995 under Section 6 of the Act was that the objections filed by the petitioners were not decided as they were allegedly found to be time barred. The Division Bench issued directions to the respondents to decide the objections irrespective of the fact whether the objections were time barred or not. The respondent-State was granted liberty to the respondents to issue notification afresh in accordance with law. The aforesaid order attained finality and therefore, declaration under Section 6 of the Act was again made on 10.2.1998. The petitioners filed the present writ petition, namely, CWP No. 5140 of 1998 pleading numerous grounds including the plea that the declaration under Section 6 of the Act has been made after lapse of one year. However, this time their petition was dismissed on 7.9.1999. Aggrieved by the judgment of Division Bench of this Court, the petitioners approached Hon'ble the Supreme Court urging that fresh declaration made under Section 6 of the Act on 10.2.1998 had lapsed. On the basis of pleadings, Hon'ble the Supreme Court found that no satisfactory reply was given to the categorical averments made by the petitioners in para 17 of their writ petition with regard to lapsing of the declaration made under Section 6 of the Act. After considering the aforesaid factual position, Hon'ble the Supreme Court set aside the judgment dated 7.9.1999 of the Division Bench of this Court and CWP No. 5140 of 1998 3 remanded the matter to this Court so as to enable the parties to complete the pleadings. The view of Hon'ble the Supreme Court is discernible from the last three paras of the order dated 20.1.2009, which reads thus:- “On a careful reading of the stand taken by the respondents in their respective written statements, it is clear that the State Government and the Land Acquisition Collector have not cared to give clear and specific answers in their counter affidavits on the point of issuing declaration dated 10.02.1998 under Section 6 of the LA Act after prescribed period of limitation as raised by the appellants in the writ petition. The High Court in its judgment has not recorded any specific and conclusive finding on the question whether Section 6 declaration dated

10.02.1998 was issued after the period of one year had lapsed from 18.07.1994, when notification under Section 4 of the LA Act was issued by the State Government and further, whether the time period of operation of stay granted by the High Court w.e.f. 07.06.1995 to 30.05.1994, have to be deducted from the total time between Section 4 notification dated 18.07.1994 and Section 6 declaration dated 10.02.1998 for calculating the limitation as prescribed under Section 6 (1) Proviso (ii) of the LA Act. The learned counsel for the parties have agreed CWP No. 5140 of 1998 4 before us that instead of deciding the issues by this Court raised in this appeal, it would be in the interest of the parties to refer the case back to the High Court for deciding the writ petition afresh on its merits. We feel that, in the facts and circumstances of the case, justice would be sub- served if the judgment and order of the High Court impugned in this appeal is set aside. We accordingly order. The Civil Writ Petition No. 5140/1998 is ordered to be restored to its original number on the file of the High Court, which shall be decided by the High Court in accordance with law within 3 months from the date of receipt of copy of the order of this Court. We, however, make it clear that the ppellants shall not be entitled to urge the plea of malafides which had been given up by them against the then Minister, at the time of hearing of the writ petition by the High Court. The parties, if they desire, may file additional pleadings before the High Court. The parties are directed to maintain status quo with regard to the possession of the suit-land till the writ petition is finally decided by the High Court. Needless to say that we have not expressed any opinion on the merits of the case and the High Court shall decide the writ petition uninfluenced by any observation made by us in this order. The appeal is allowed in the aforesaid terms. Costs on parties.” CWP No. 5140 of 1998 5 After remand when the matter came up before us on

16.2.2010, we noticed the view taken by their Lordships of Hon'ble the Supreme Court holding that substantial issue with regard to lapsing of declaration under Section 6 of the Act was raised. However, the State Government or its Agency failed to reply the averments made by the petitioners. The learned State counsel sought time to file a specific affidavit as to how the declaration made on 10.2.1998 was within a period of one year, as per the provisions of Section 6(1) proviso (ii) of the Act. Accordingly, affidavit by respondents No. 1 and 2 has been filed. The stand taken in para 4 of the affidavit of both the respondents is that the period of one year has to be reckoned by excluding the period taken for hearing of the objections, preparation of the report and receipt of the same by the Government. If the aforesaid stand is accepted, then the declaration made under Section 6 of the Act would be within a period of one year within the meaning of proviso (ii) to Section 6(1) of the Act. Mr.Sunil Chadha, learned counsel for the petitioners, has argued that according to the provisions of Section 6(1) proviso (ii) of the Act the declaration made after expiry of one year from the date of publication of the notification under Section 4 of the Act would be in flagrant violation of the provisions of proviso (ii) to Section 6(1) of the Act. He has urged that if the time for which the stay order passed by this Court is knocked out from the total period then the declaration made under Section 6 of the Act is delayed by about seven months. CWP No. 5140 of 1998 6 According to Mr. Chadha, the total period between notification issued under Section 4 on 18.7.1994 and declaration made under Section 6 on

10.2.1998 works out to be 42 months 23 days and the period of stay order spent while pursuing CWP No. 8645 of 1995 would come to 23 months 23 days i.e. 7.6.1995 to 30.5.1997. The total period which is consumed for making declaration under Section 6 is 19 months which is obviously over and above the period of one year as provided under Section 6(1) proviso (ii) of the Act. Learned counsel for the petitioners has further placed reliance upon a judgment of Hon'ble the Supreme Court passed in the case Padmasundara Rao (Dead) & Ors. v. State of Tamil Nadu & Ors., JT 2002(3) SC1. Both the learned counsel for the respondents have taken the similar stand by urging that the period which has been spent in hearing of the objections, preparation of report and receipt of the same by the Government, has to be excluded and cannot be counted for the purpose of working out one year as provided by proviso (ii) to Section 6(1) of the Act. Having heard the learned counsel for the parties, we are of the view that the instant petition deserves to succeed. It is obvious that after knocking out the period during which the interim order of stay of dispossession was operating, it comes to more than one year as has been rightly urged by the learned counsel for the petitioner. The declaration made under Section 6 of the Act is delayed by seven months and therefore, would be hit by the provisions of proviso (ii) to CWP No. 5140 of 1998 7 Section 6(1) of the Act. There is ample support to the view taken by us in Padmasundara Rao's case (supra), which has been followed in Vijay Narayan Thatte and others v. State of Maharashtra and others, (2009) 9 SCC. 92. The stand of the respondents is that declaration made on

1.3.1998 was within a period of one year. They have projected that the last date of issuance of notification under Section 6 of the Act was

1.3.1998 whereas it was issued on 10.2.1998. A period of 81 days is taken as a balance time left after substracting 284 days from the period of one year as per the provisions of Section 6 of the Act. Likewise, the other argument that report dated 27.11.1997 given by the D.R.O.-cum- Land Acquisition Collector, Kaithal was received on 2.1.1998 and the period from 2.1.1998 to 10.2.1998 only works out to be 39 days to issue a fresh declaration under Section 6 of the Act. The argument seems to be that the total period comes to 324 days. However, the aforesaid calculation of the time period is absolutely contrary to the judgment of Hon'ble the Supreme Court rendered in the case of Padmasundara Rao's case (supra). It has been held by their Lordships that the legislature specifically provided for periods covered by orders of stay or injunctions which would clearly show that no other period was intended to be excluded and therefore, there was no scope for providing any other period of limitation. Causus omissus cannot be supplied by the Court.” Once the aforesaid position of law is clear then the argument raised by the respondents would be without any substance. Moreover in their counter affidavit filed in CA No.5355 of CWP No. 5140 of 1998 8 2000 a similar stand was taken which is sought to be re-surructed before this Court. Accordingly, we find no justification for such a stand particularly in view of the specific observations made by Hon'ble the Supreme Court in the case of Padmasundara Rao's case (supra). As a sequel to the above discussion, the instant petition succeeds. Accordingly, the notification issued under Section 4 of the Act on 18.7.1994 and the declaration made under Section 6 of the Act on 10.2.1998 are hereby quashed. The petitioners are held entitled to costs which is determined at Rs.20,000/-. A draft for the amount of costs be prepared in the name of the petitioners and be sent to them within a period of two months from the date of receipt of copy of this order. (M.M.KUMAR) JUDGE

10.3.2010 mk/okg (JITENDRA CHAUHAN) JUDGE