The petitioner being the owner of land in S.No.53/2A to an extent 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 in 3/97-98 dated 07.1.1998) situated at Mitta Ayamperumalpatti Village, Salem Taluk, has filed these two writ petitions.
2. The writ petitions were admitted on 25.3.1999 and an interim injunction was granted restraining the respondents from interfering with the peaceful possession and enjoyment of the lands. By an order dated 01.9.2003, the interim order was made absolute.
3. This is the second round of litigation for the petitioner. In the first round, the petitioner challenged the acquisition proceedings in W.P.Nos.9199 and 9338 of 1984. The writ petitions were allowed by this Court by a common order dated 23.12.1993. By the said judgment, the proceedings for land acquisition was set aside. Subsequently, the respondent State filed Writ Appeals being W.A.Nos.1265 and 1267 of 1995. A Division Bench of this Court allowed both the writ appeals by a common judgment dated 04.10.1996 and restored the acquisition proceedings. During the pendency of the writ petitions, an interim stay was granted in favour of the petitioner.
4. The petitioner preferred an appeal before the Supreme Court against the order of the Division Bench being S.L.P.(Civil) No.1876 of 1998. When the matter came up on 16.3.1998, the Supreme Court passed the following order and dismissed the S.L.P.:-
''It is stated that by Mr.S.Sivasubramanian, the learned Senior Counsel, the Spl.Tahsildar (LA) Neighbourhood Scheme, Salem has recommended to the higher authority for deletion of the petitioner-society's land. The petitioner proposes to take further steps in the light of the recommendation of the Spl.Tahsildar. In view of this petition is not pressed. Therefore the Special Leave Petition is therefore dismissed as not pressed".
5. Subsequent to the order passed by the Division Bench of this Court, 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 was approved and delivered on 02.1.1998 and 10.6.1998.
6. The petitioner questioned these two Awards on the ground that the Award was not passed within the statutory period of two years in terms of section 11-A of the Land Acquisition Act, 1894. The learned counsel submitted that after the declaration under section 6 was made on 17.2.1984 till 21.9.1984, when the petitioner obtained an interim-stay, there was a gap of 7 months and 4 days. From 23.12.1993 when the Court allowed the writ petition till the filing of the writ appeal on 25.3.1994, there was no stay for a period of 4 months and 3 days. Adding these two periods, there was no interim stay for a total period of 11 months and 7 days. Therefore, if the section 11A is pressed into service from the date of the writ appeal order on 04.12.1996, there was only a period of one year and 23 days to pass the final award which should have been passed on or before 27.11.1997.
7. In response to this contention, in paragraph 5 of the counter affidavit dated 13.10.2004, the following averments have been made:-
''5. Regarding the averments made in para VIII of the affidavit, it is submitted that the statutory period of 2 years from the date of publication of Declaration under Section 6 of the L.A.Act was calculated as detailed below:-
8. In fact it was the petitioner who was continuing to challenge the order of the Division Bench before the Supreme Court till 16.3.1998 when one Award had already been passed by the respondents. She never informed the Supreme Court about the passing of the Award though she feigned ignorance about the passing of the Award in these proceedings. In the present case, it is only by the order of the Division Bench dated 04.10.1996 the acquisition proceedings were revived. Therefore, an Award was passed well within the time stipulated under section 11A of the Land Acquisition Act.
9. The learned counsel for the petitioners relied upon the following passage found in para 11 of the judgment of the Supreme Court in Padmasundara Rao -vs- State of Tamil Nadu reported in (2002) 3 SCC 533 :
"Para 11: It may be pointed out that the stipulation regarding the urgency in terms of Section 5-A of the Act has no role to play when the period of limitation under Section 6 is reckoned. The purpose for providing the period of limitation seems to be the avoidance of inconvenience to a person whose land is sought to be acquired. Compensation gets pegged from the date of notification under
Section 4(1).Section 11 provides that the valuation of the land has to be done on the date of publication of notification under
Section 4(1).Section 23 deals with matters to be considered in determining the compensation. It provides that the market value of the land is to be fixed with reference to the date of publication of the notification under
Section 4(1) of the Act. The prescription of time-limit in that background is, therefore, peremptory in nature. In Ram Chand v. Union of India (1994 (1) SCC 44), it was held by this Court that though no period was prescribed, action within a reasonable time was warranted. The said case related to a dispute which arose before prescription of specific periods. After the quashing of declaration, the same became non est and was effaced. It is fairly conceded by learned counsel for the respondents that there is no bar on issuing a fresh declaration after following the due procedure. It is, however, contended that in case a fresh notification is to be issued, the market value has to be determined on the basis of the fresh notification under
Section 4(1) of the Act and it may be a costly affair for the State. Even if it is so, the interest of the person whose land is sought to be acquired, cannot be lost sight of. He is to be compensated for acquisition of his land. If the acquisition sought to be made 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 the judgment of the Supreme Court in Ashok Kumar & Others -vs- State of Haryana & another reported in (2007) 3 SCC 470 and referred to the following passages found in paragraphs 14, 17 and 18 :-
''Para 14 : 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.
Para 17. 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. 24-9-1984 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.
Para 18. 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."
He also submitted that what applies to the Section 6 declaration will also apply to the Award under
Section 11 in terms of Section 11-A of the Act.
11. The contention of the petitioner is highly contrived. The explanation to section 11A does not come into operation when a learned Judge of this Court has quashed the entire proceedings by a final order. The proceedings got revived only by the orders of the Division Bench.
12. In this context, it is necessary to refer to the decision of the Supreme Court which had dealt with the scope of Section 11-A of the Act in the case relating to Smt.Bailamma (dead) and others -vs- Poornaprajna House Building Co-operative Society and others reported in (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 was obtained by the Society itself is of no consequence, having regard to the language of Explanation to Section 11-A of the Act. The exclusion of the period during which the order of stay operated is not dependant upon the party obtaining such an order. An order passed by the court must be obeyed by all concerned. In the instant case the Society moved the High Court and obtained an order of stay. In effect, the order operated in such a manner that the Government was prevented from granting approval to the award even if it so desired, nor could it refuse approval during the period the order of stay operated. Therefore, Explanation to Section 11-A came into operation and in accordance therewith the period during which the order of stay operated must be excluded from the total time taken to make the award.
Para 14. Reliance was placed by the appellants on the observations made by this Court in Yusufbhai Noormohmed Nendoliya v. State of Gujarat (1991) 4 SCC 531). In our view the aforesaid decision in fact supports the case of the respondents. In the aforesaid judgment it was held: (SCC p.535, para 8) 8. The said Explanation is in the widest possible terms and, in our opinion, there is no warrant for limiting the 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. That was no doubt a case where an order of injunction was obtained by the landholder restraining land acquisition authorities from taking possession of the land. It was, in that context, that this Court observed that to get the benefit of the said provision the landholder who seeks the benefit must not have obtained any order from court restraining any action or proceedings in pursuance of declaration under Section 6 of the Act. It is, therefore, not possible to accept the submission urged on behalf of the appellants that Section 11-A of the Act must be read in a narrow sense so as to apply to only those cases where the landowner himself obtained an order of stay or injunction. We are not prepared to add words in the Explanation by reading into it a provision that gives to the Explanation a narrower operation than what was intended for it by the legislature, so as to apply only to cases where an order of injunction is obtained by the landowner and not by anyone else.
... ...
Para 16. This Court emphasised the fact that Section 11-A was enacted with a view to prevent inordinate delay being made by the Land Acquisition Officer in making the award which deprived owners of the enjoyment of the property or to deal with the land whose possession has already been taken. Delay in making the award subjected the owner of the land to untold hardship. The objects and reasons for introducing Section 11-A into the Act were that the pendency of acquisition proceedings for long periods often causes hardship to the affected parties and renders unrealistic the scale of compensation offered to them and it is proposed to provide for a period of two years from the date of publication of the declaration under Section 6 of the Act within which the Collector should make his award under the Act. The emphasis, therefore, was on the Collector making his award within the period prescribed. However, the legislature was also aware of the reality of the situation and was not oblivious of the fact that in many cases acquisition proceedings were stalled by stay orders obtained from courts of law by interested parties. It, therefore, became imperative that in computing the period of two years, the period during which an order of stay operated, which prevented the authorities from taking any action or proceeding in pursuance of the declaration, must be excluded. If such a provision was not made, an acquisition proceeding could be easily defeated by obtaining an order of stay and prolonging the litigation thereafter. Explanation to Section 11-A was meant to deal with situations of this kind. The Explanation is in the widest possible terms which do not limit its operation to cases where an order of stay is obtained by a landowner alone. One can conceive of cases where apart from landowners others may be interested in stalling the land acquisition proceeding. It is no doubt true that in most of the reported decisions the party that obtained the stay order happened to be the owner of the land acquired. But that will not lead us to the conclusion that the Explanation applied only to cases where stay had been obtained by the owners of the land. There may be others who may be interested in obtaining an order of stay being aggrieved by the acquisition proceeding. It may be that on account of development of that area some persons in the vicinity may be adversely affected, or it may be for any other reason that persons in the locality are adversely affected by the project for which acquisition is being made. One can imagine many instances in which a person other than the owner may be interested in defeating the acquisition proceeding. Once an order of stay is obtained and the Government and the Collector are prevented from taking any further action pursuant to the declaration, they cannot be faulted for the delay, and therefore, the period during which the order of stay operates must be excluded. In a sense, operation of the order of stay provides a justification for the delay in taking further steps in the acquisition proceeding for which the authorities are not to blame. "
(Emphasis Added)
13. If it is seen in the context of the decision referred to above, it can very well be seen that the Award impugned in this batch of writ petitions is not hit by the proviso to Section 11-A of the Act. The manner of calculation urged by the petitioner is not available in terms of the Act.
14. In the light of the above, both the writ petitions will stand dismissed. There will be no order as to costs.
js 15.4.2009 Index: yes/no Internet :yes/no To 1 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. K. CHANDRU, J. js Pre-delivery order in W.P.Nos.10893 and 10894 of 1999 Delivered on 15.4.2009