Hon'ble Saral Srivastava,J.
The petitioner has invoked the writ jurisdiction of this Court under Article 226 of the Constitution of India questioning the validity of the declaration dated 11.5.2012 issued under Section 6 of the Land Acquisition Act, 1894 (hereinafter referred to as "the Act") in respect of the land of various villages in district Agra notified for acquisition under Section 4 of the Act on 3.10.2005 lastly published on 28.11.2005 for the benefit of the Agra Development Authority.
The petitioner apart from seeking quashing of the aforesaid declaration has also made a prayer for the quashing of the entire acquisition proceedings pursuant to the notifications dated 3.10.2005 and 11.05.2012 issued under Sections 4 and 6 of the Act respectively.
The primary ground for attacking the declaration made under Section 6 of the Act is that it is beyond time of one year from the date of publication of the notification under Section 4 of the Act as provided under proviso (ii) to Section 6(1) of the Act; and that the objections filed by the petitioner under Section 5-A of the Act were not decided by the Collector who is the competent authority but by the Special Land Acquisition Officer who was not notified for the purposes of dealing with the said objections and that no personal hearing was given to the petitioner while dealing with the said objections and thereafter making recommendation to the State Government.
First, the facts in brief for the better and complete appreciation of controversy vis-a-vis the legal position involved and the reasoning for its resolution.
On the proposal of the Collector, Agra dated 21.12.2004 proceedings were initiated for the acquisition of the land for the Taj Nagar Housing Scheme Phase-III promoted by the Agra Development Authority. A notification under Section 4(1) read with Section 17(4) of the Act was issued on 3.10.2005 dispensing with the enquiry under Section 5A of the Act. Apart from the Gazette and news-papers it was last published on 28.11.2005 in the locality.
The said notification was challenged by many tenure holders by filing separate writ petitions. The main one was by Kashma Sahkari Avas Samiti Ltd. i.e. Writ Petition No.72063 of 2005. The High Court vide interim order dated 23.11.2005 directed the authorities to maintain status quo till 28.11.2005. Thereafter on 12.12.2005 the parties were directed to maintain status quo until further orders and they were directed to exchange the pleadings. The said writ petition and several other writ petitions connected with the same were decided vide judgment and order dated 25.8.2006. The writ petitions were allowed and the application of the provision of Section 17(1) and (4) of the Act was held to be invalid and the liberty was given to the respondents to proceed with the acquisition afresh in accordance with law from the stage of issuance and publication of the notification under Section 4 of the Act by affording opportunity to the petitioners or to the tenure holders to file objections under Section 5A of the Act and thereafter, if necessary, to issue a declaration under Section 6 of the Act.
The State of U.P. as well as the Agra Development Authority aggrieved by the aforesaid judgment and order dated 25.8.2006 preferred three special leave petitions i.e. Special Leave Petition (Civil) No.19602 of 2006 (State of U.P. Vs. Kshama Sahkari Avas Samiti Ltd. and others); Special Leave Petition (Civil) No.20149 of 2006 (Agra Development Authority Vs. Kshama Sahkari Avas Samiti Ltd.) and Special Leave Petition (Civil) No.20489 of 2006 (Agra Development Authority Vs. Sahab Singh). All the three special leave petitions were taken up together on 8.12.2006 and apart from issuing notice to the contesting parties, a direction was issued to maintain status quo. These special leave petitions were finally decided by the Supreme Court vide its judgment and order dated 13.5.2011 and the State/authorities were directed to publish notice inviting objections under Section 5A of the Act to be filed within two months and to be dispose them of in accordance with law within three months thereafter.
Consequent to the above decision of the Supreme Court, notice inviting objections was published on 11.6.2011 in the news-papers pursuant to which a total 213 objections were filed in relation to the land of eight villages notified for acquisition. The objections were rejected by eight separate orders all dated 3.11.2011 passed by the Special Land Acquisition Officer. Thereafter on report being submitted to the State Government, the impugned declaration dated 11.5.12 was issued under Section 6 of the Act.
It is in this background that the petitioner alleges that the declaration issued under Section 6 of the Act is bad in law as it is not within time of one year as stipulated vide proviso (ii) to Section 6(1) of the Act and that the Special Land Acquisition Officer was not competent to consider and decide the objections of the petitioner filed under Section 5A of the Act.
We had heard Sri Rahul Agarwal, learned counsel for the petitioner and Sri M.C. Chaturvedi, Additional Advocate General representing the State Authorities and also the Agra Development Authority. They had consented for the final disposal of the writ petition on the basis of the pleadings on record.
Before adverting to the legal aspects it would be important to recapitulate the relevant dates in a tabular form which would be convenient for dealing with the first issue regarding the limitation of issuing declaration under Section 6 of the Act:
S.No.
Particulars Date
1. Date of Notification under Section 4 03.10.2005
2. Last date of the publication of the aforesaid notification.
28.11.2005
3. Interim order in the writ petition of Kshama Sahkari Avas Samiti Ltd.
23.11.2005
4. Date of expiry of the above interim order 28.11.2005
5. Date of further stay order in the above writ petition 12.12.2005
6. Writ petition of Kshama Sahkari Avas Samiti Ltd. allowed.
25.08.2006
7. Date of interim order passed by the Supreme Court in the three special leave petitions.
08.12.2006
8. Special leave petitions finally decided 13.05.2011
9. Declaration under Section 6 of the Act 11.05.2012 In order to examine the issue of limitation of declaration under Section 6 of the Act, it would be profitable to quote the relevant provisions of Sections 4 and 6 of the Act:
"4. Publication of preliminary notification and power of officers thereupon. - (1) Whenever it appears to the appropriate Government or Collector that land in any locality is needed or is likely to be needed for any public purpose or for a company, a notification to that effect shall be published in the Official Gazette and in two daily newspapers circulating in that locality of which at least one shall be in the regional language, and the Collector shall cause public notice of the substance of such notification to be given at convenient places in the said locality (the last of the dates of such publication and the giving of such public notice, being hereinafter referred to as the date of the publication of the notification).
(2) ...................."
"6. Declaration that land is required for a public purpose. - (1) Subject to the provision of Part VII of this Act, when the appropriate Government is satisfied, after considering the report, if any, made under section 5A, sub-section (2), that any particular land is needed for a public purpose, or for a Company, a declaration shall be made to that effect under the signature of a Secretary to such Government or of some officer duly authorized to certify its orders and different declarations may be made from time to time in respect of different parcels of any land covered by the same notification under section 4, sub-section (1) irrespective of whether one report or different reports has or have been made (wherever required) under section 5A, sub-section (2):
Provided that no declaration in respect of any particular land covered by a notification under section 4, sub-section (1)-
(i) published after the commencement of the Land Acquisition (Amendment and Validation) Ordinance, 1967 (1 of 1967), but before the commencement of the Land Acquisition (Amendment) Act, 1984, shall be made after the expiry of three years from the date of the publication of the notification; or
(ii) published after the commencement of the Land Acquisition (Amendment) Act, 1984, shall be made after the expiry of one year from the date of the publication of the notification:
Provided further in computing the period of three years referred to in the preceding proviso, the time during which the State Government was prevented by or in consequence of any order of any Court from making such declaration shall be excluded.
Provided further that no such declaration shall be made unless the compensation to be awarded for such property is to be paid by a Company, or wholly or partly out of public revenues or some fund controlled or managed by a local authority.
Explanation 1. - 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, sub-section (1), is stayed by an order of a Court shall be excluded.
Explanation 2. - Where the compensation to be awarded for such property is to be paid out of the funds of a corporation owned or controlled by the State, such compensation shall be deemed to be compensation paid out of public revenues.
(2) Every declaration shall be published in the Official Gazette, and in two daily newspapers circulating in the locality in which the land is situated of which at least one shall be in the regional language, and the Collector shall cause public notice of the substance of such declaration to be given at convenient places in the said locality (the last of the dates of such publication and the giving of such public notice, being hereinafter referred to as the date of the publication of the declaration), and such declaration shall state the district or other territorial division in which the land is situate, the purpose for which It is needed, its approximate area, and, where a plan shall have been made of the land, the place where such plan may be inspected.
(3) The said declaration shall be conclusive evidence that the land is needed for a public purpose or for a company, as the case may be; and, after making such declaration, the appropriate Government may acquire the land in manner hereinafter appearing."
The provisions as quoted above clearly reflects that the last date of publication of the notification under Section 4 of the Act is referred to as the date of the notification and that it is mandatory to make a declaration under Section 6 of the Act within one year from such notification. In computing the aforesaid period of one year the period during which any action or proceedings remained stayed by the order of the court shall stand excluded.
In the instant case the date of the notification under Section 4 of the Act is 03.10.2005 but as it was last published on 28.11.2005 the said date i.e. 28.11.2005 shall be the date of the publication of the notification. Thus a declaration under Section 6 of the Act in ordinary course was supposed to be made on or before 28.11.2006. However as there were interim orders affecting the proceedings in pursuance to the notification under Section 4 of the Act, the periods of the said stay orders are liable to be excluded and the limitation for making the declaration would stand extended by such excluded periods.
A perusal of the chart of dates would indicate that the limitation for issuing declaration under Section 6 of the Act commenced on 28.11.2005, the date on which the notification under Section 4 of the Act was last published. The interim order in the writ petition of Kshama Sahkari Avas Samiti Ltd. remained in operation from 23.11.2005 till 28.11.2005 and then from 12.12.2005 till 25.8.2006. Thus, there was no interim order between 29.11.2005 and 11.12.2005.
The Supreme Court passed interim order on 8.12.2006 which remained in operation till 13.5.2011. Thus, there was no interim order from the date of the judgment of the High Court ie. 25.08.2006 till the grant interim order by the Supreme Court on 8.12.2006. Again there was no interim stay order from the date of dismissal of SLPs by the Supreme Court ie. from 13.05.2011 till the date of declaration ie. 11.05.2012.
In other words, there was no stay order operating during the following periods:-
(i) 28.11.2005 to 11.12.2005
(ii) 26.08.2006 to 07.12.2006
(iii) 14.05.2011 to 10.05.2012 The stay was operative only during the following periods:-
(i) 12.12.05 to 25.08.2006
(ii) 08.12.06 to 13.05.2011 It may be worth noting that there is no other date except 11.05.2012 on record of the publication of the declaration under Section 6 of the Act. Therefore, 11.05.2012 is taken as the last date of its publication and thus the date of the said declaration.
In view of the explanation 1 to proviso to Section 6(1) of the Act in computing the period of one year for issuing declaration under Section 6 of the Act from the date of last publication of notification under Section 4 of the Act, the period during which the interim order had remained in operation is liable to be excluded.
Accordingly, the periods of stay from 12.12.2005 to 25.8.2006; and 8.12.2006 to 13.5.2011 are liable to be excluded in computing the period of one year which commenced on 28.11.05. To put it differently, the period of limitation of one year which commenced on 28.11.2005 was interrupted by the above periods during which the stay remained in operation but as there was no interim orders between 28.11.2005 to 12.12.2005 and 25.8.2006 to 8.12.2006 the period of limitation continued to run in these two periods.
It is in view of the above factual background, we have to examine whether the declaration made under Section 6 of the Act on 11.5.2012 is within time of one year from the date of last publication of notification under Section 4 of the Act i.e. 28.11.2005 excluding the period in which interim orders remained operative and whether in view of the direction of the Supreme Court contained in its judgment and order dated 13.5.2011 permitting the State authorities to publish notice inviting objections and to decide the objections in accordance with law within the time fixed by it would override the statutory limitation or extend the same, making the declaration to be a valid one.
The date of the notification under Section 4 of the Act is 28.11.2005 and that of the declaration under Section 6 of the Act is 11.05.2012. Now, let us examine if the said declaration is within time of one year from the date of the notification under Section 4 of the Act excluding the period during which stay orders have remained operative.
The period of one year referred to in the proviso (ii) to Section 6(i) of the Act means a year of 365 days according to the British Calendar. Section 3(6) of the General Clauses Act, 1897 also defines "a year" to mean a year according to the British Calendar.
The Ninth Edition of the Black's Law Dictionary defines a year to be a period of 12 calendar months beginning from January 1 and ending on 31st December. In other words, a consecutive period of 365 days beginning from any point is reckoned as a year as per the British Calendar.
In view of above, the primary issue is whether the declaration under Section 6 of the Act in the instant case has been made within a period of 365 consecutive days commencing from 28.11.2005 excluding the period of the stay orders.
The limitation of the above one year or 365 days commenced on 28.11.2005. It started running as under:-
It is pertinent to mention that the Supreme Court in the case of R. Indira Saratchandra Vs. State of Tamil Nadu (2011) 10 SCC 344 has held that once a stay order passed by the court is vacated, it comes to an end and the clog put on the running of the limitation gets removed.
The above computation of the limitation would show that on the date of the declaration made under Section 6 of the Act a period of 479 days have lapsed from the date of notification under Section 4 of the Act excluding the periods during which the stay orders of the High Court and the Supreme Court have remained in operation. The period of one year 28.11.2005 expired on 16.01.2012. Thus, making the declaration dated 11.05.2012 beyond limitation of one year by 114 days.
Thus the declaration made under Section 6 of the Act is on the face of it beyond one year and is barred by statutory limitation.
Legal maxim---Expressio unius est exclusio alterius- means that if a statute provides for a thing to be done in a particular manner, then it has to be done in that manner alone and that no other manner is open and permissible in law.
The above maxim has been consistently followed by the Supreme Court right from 1961 in the case of Deep Chand Vs. State of Rajasthan AIR 1961 S.C. 1527 till date.
In view of the above well acknowledged legal principle since proviso(ii) to Section 6 of the Act mandates for issuing of the declaration within a year from the date of notification under Section 4 of the Act, the declaration has to be made within the said period and not otherwise.
In Padmasundara Rao (Dead) Vs. State of Tamil Nadu & others (2002) 3 SCC 533, the Five Judges of the Supreme Court in reference to the period of limitation regarding declaration under Section 6 of the Act observed that language of Section 6(1) is plain and unambiguous. There is no scope for reading something into it. If the legislature has specifically provided for the period of limitation and to exclude periods covered by the stay orders, it clearly means that no other period is intended to be excluded and that there is no scope for providing any other period of limitation other than which is prescribed under the Act.
In Ashok Kumar & others Vs. State of Haryana and another (2007) 3 SCC 470 the Apex Court held that the limitation provided in proviso (ii) appended to Section 6(1) of the Act is mandatory in nature. Any declaration made after the expiry of one year from the date of the notification issued under Section 4 of the Act would be void and will have no effect.
A Division Bench of this court in Mahavir Sahkari Awas Samiti Ltd. Vs. State of U.P. and another (2007) 2 AWC 1162 (DB) of which one of us (P. Mithal J.) was the member in context to the validity of a declaration made under Section 6 of the Act on the ground of its limitation held that the court had no competence to extend the period of limitation and that direction of the court to deal with the mater in accordance with law does not extend the statutory limitation. Therefore, a declaration or a fresh declaration under Section 6 of the Act could not have been made after the expiry of one year excluding period of stay, from the date of issuance of the publication of the notification under Section 4 of the Act.
In Vijay Narayan Thatte & others Vs. State of Maharastra & others (2009) SCC 92 again in reference to a declaration under Section 6 of the Act it was held since the statute is very clear, the period of limitation provided in proviso (ii) to Section 6 of the Act has to be followed and even the concession of the counsel cannot obliterate the same as it is mandatory in nature and must operate with its full rigour.
In Oxford English School Vs. Government of Tamil Nadu & others (1995) (5) SCC 206 it has been laid down that the High Court could not have given any direction permitting issuance of the declaration under Section 6 of the Act from the date of its judgement if otherwise the limitation is over.
In the State of Punjab and another Vs. Rajesh Syal (2002) 8 SCC 158 the Supreme Court observed that it has ample jurisdiction to pass orders under Article 142 (1) of the Constitution of India that may be necessary for doing complete justice in any case but even in exercise of that power it is more than doubtful, if it can pass order contrary to law. Thus, it was held that court can not extend the period of limitation.
Thus, even the Supreme Court in exercise of its jurisdiction under Article 142 of the Constitution of India would not ordinarily grant a relief that would be in violation of statutory provision or to do an act which may be contrary to the express provisions of Law.
In Anil Kumar Gupta Vs. State of Bihar & others (2012) 12 SCC 443 the court opined that a declaration issued under Section 6 of the Act after the expiry of one year from the date of notification under Section 4 of the Act, is a nullity.
In view of above legal position and the mandatory requirement of issuing a declaration within a year from the date of publication of notification under Section 4 of the Act excluding period of stay, the impugned declaration made under Section 6 of the Act on 11.05.2012 is patently beyond time and is not only illegal but a nullity.
This takes us to the second limb of the arguments of Sri M.C. Chaturvedi, Additional Advocate General that the limitation provided proviso (ii) to Section 6 of the Act has no applicability where there is direction from the court to act upon pursuant to the notification issued under Section 4 of the Act and to complete the exercise of making the declaration within the time permitted. In such a situation the limitation provided stands circumscribed or automatically extended.
First of all the above argument is based upon complete misreading of the directions of the Supreme Court dated 13.05.2011 issued while deciding the three special leave petitions in the matter of Kshama Sahkari Avas Samiti Ltd.
The relevant part of the aforesaid order of the Supreme Court reads as under:-
"Accordingly, we dispose of the two Special Leave Petitions by directing the Land Acquisition Authorities to publish Notice inviting objections under Section 5 of the Land Acquisition Act, 1894 in 'Amar Ujala' and 'Dainik Jagran', both local daily newspapers, and the said Notice shall indicate that objections could be filed within two months from the date of publication and upon receipt of such objections, if any, the concerned authorities shall dispose of the same in accordance with law within three months thereafter.
The interim orders passed in SLP (C) No.19602 of 2006 are vacated.
Consequently, SLP (C) No.20489 of 2006, filed by the Agra Development Authority against the same judgment of the Division Bench of the High Court, as impugned in the other Special Leave Petitions is also disposed of in the above terms."
A plain reading of the above directions would reveal that the Apex Court had not granted any liberty to the respondents to publish a declaration under Section 6 of the Act even if the time for making it had expired.
In fact the court had not dealt with the period of limitation for making the declaration under Section 6 of the Act. It only permitted the respondents to invite objections under Section 5A of the Act by publication of notice in the newspapers and had prescribed time limit for filing objections and for its disposal that too in accordance with law.
In accordance with law means within the time provided under the Act itself and not otherwise.
In view of above, it cannot be said that the Supreme Court has consciously waived the period of limitation provided for making declaration under Section 6 of the Act or has extended the same or has otherwise permitted the respondents to make it even if the limitation has expired.
This apart the period of limitation provided under the statute cannot be extended and it is not open for the court to confer jurisdiction upon any authority which it had ceased to exercise. In this regard a reference may be had to Oxford English School (Supra) and Mahavir Sahkari Awas Samiti Ltd. (Supra).
Even though no contrary decision has been cited to dislodge the principle that the statutory period of doing a thing can be extended or ignored may be due to the directions of the court, we have ourselves laboured hard and have come across few decisions not in context with the acquisition of the land but in reference to tax proceedings wherein a different view appears to have been expressed. Therefore, we consider it appropriate to deal with those decisions also before expressing our final opinion upon the validity of the impugned declaration.
The convssing that where proceedings were taken pursuant to the directions of the court to pass a fresh order, the statutory limitation provided would not be a bar can be supported by a decision in Mishra Sugandhi Karyalaya Vs. State of U.P. and others 2011 (40) VST 364 (All). In the said case the order of assessment pursuant to notice under Section 21(2) of the U.P. Trade Tax Act, 1948 (hereinafter referred to as the Trade Tax Act) was the subject matter of challenge on the ground that the submissions made by the petitioners were not considered at all. Learned Standing Counsel conceded and requested that the matter be remanded with the direction to pass a fresh order. Accordingly, the order impugned therein was set aside and the matter was remanded to pass a fresh order and it was observed that in view of the decision in M/s S.K. Traders Vs. Additional Commissioner of Trade Tax, Ghaziabad and another 2007 NTN (34) 345 the limitation would not be a hindrance.
Thus, the aforesaid decision was rendered on the basis of the concession or the consent of the parties and was not a decision on merits. The court in passing the said order had not adjudicating point of limitation but simply applying the ratio of S.K. Traders (Supra) observed that the limitation would not come in way of passing a fresh assessment order.
In the case of S.K. Traders (Supra) the court held that where proceedings have been set aside by the High Court under Article 226 of the Constitution of India the period of limitation shall not apply in initiating proceedings thereafter.
A reading of the above decision would reveal that it was rendered primarily based upon the decision of the Supreme Court in Director of Inspection of Income Tax (Investigation) New Delhi and another Vs. Pooran Mal and sons AIR (1975) (4) SC 67 which had laid down that once an order had been passed within the period of limitation, the subsequent order made in pursuance to the order or remand or direction of the High Court would not be barred by limitation and can be made at any time.
In Pooran Mal's case (Supra) the controversy was with regard to the period of time under Section 132(5) of the Income Tax Act, 1961. The earlier order was quashed by the High Court with liberty to the department to look into the matter afresh. The said order was passed with the consent of the parties. On the fresh order being passed, a question of limitation arose. The Supreme Court upheld the order as it was passed in pursuance of the agreement of the parties and held that the period limitation mentioned in Section 132(5) of the Income Tax Act stood waived as the parties have agreed for an order and are not entitle to take the plea of limitation on the principle of estoppal.
The very fact that the order permitting passing of a fresh order was based upon the consent of the parties and was with their agreement, the decision of Pooran Mal's case does not be lay down a binding precedent. Moreover, particularly as the principle of waiver and estoppal was applied therein which are not attracted in the case at hand, the above decision is of no relevance in the present context.
It is settled law that the court should not place reliance a decision without discussing the factual situation and comparing the same with the fact situation of the case at hand as there is always a peril in treating the words of a speech or judgement as though they are words in a legislative enactment. A decision is only an authority for what is actually decided. The essence of the decision is its ratio and not every observation or what logically follows from those.
The aforesaid decision was considered in extenso by the Five Judges Bench of the Supreme Court in Padmasundara Rao's case and the same was not applied as it was based on the principle of waiver and estoppal.
It would be very fruitful to reproduce the observation of the Supreme Court in the case of Padmasundara Rao distinguishing the above decision of Pooran Mal's case.
Padmasundara Rao case:-
"Learned counsel for the respondents referred to some observations in Pooran Mal case which form the foundation for decisions relied upon by him. It has to be noted that Pooran Mal Case was decided on entirely different factual and legal backgrounds. The Court noticed that the assessee who wanted the Court to strike down the action of the Revenue Authorities on the ground of limitation had himself conceded to the passing of an order by the Authorities. This court, therefore, held that the assessee can not take undue advantage of his own action. Additionally, it was noticed that the time limit was to be reckoned with reference to the period prescribed in respect of Section 132(5) of the IT Act. It was noticed that once the order has been made under Section 132 (5) within ninety days, the aggrieved person has got the right to approach the notified authority under Section 132 (11) within thirty days and that authority can direct the Income Tax Officer to pass a fresh order. This is the distinctive feature vis-a-vis Section 6 of the Act. The Court applied the principle of waiver and inter alia held that the period of limitation prescribed therein was one intended for the benefit of the person whose property has been seized and it was open to that person to waive that benefit. It was further observed that if the specified period is held to be mandatory, it would cause more injury to the citizens than to the Revenue. A distinction was made with status providing periods of limitation for assessment. It was noticed that Section 132 does not deal with taxation of income. Considered in that background, ratio of the decision in Pooran Mal case has no application to the case at hand."
In view of the above, the decision of Pooran Mal's case and those of S.K. Traders (Supra) and others do not affect the reasoning drawn by us on the point of limitation.
Now we deal with the second argument advanced on behalf of the petitioners that as the objections filed under Section 5A of the Act were not decided by the Collector but by the SALO who was not competent, the rejection of the objections and the consequent report to the government is a nugatory.
The objections of the tenure holders objecting to the acquisition of the land are required to be heard in accordance with Section 5A of the Act. It provides that every objection to the acquisition of the land as a consequence of the notification issued under Section 4 of the Act shall be made to the Collector in writing and the Collector shall give such objectors an opportunity of hearing and thereafter if necessary after making further enquiry submit a report or reports to the appropriate government with his recommendations whereupon the government shall take a final decision and proceed to make a declaration under Section 6 of the Act if necessary.
Section 5A(2) of the Act which is relevant in this regard reads as under:-
"Every objection under sub-section(1) shall be made to the Collector in writing, and the Collector shall give the objector an opportunity of being heard in person or by any person authorised by him in this behalf or by pleader and shall, after hearing all such objections and after making such further inquiry, if any, as he thinks necessary, either make a report in respect of the land which has been notified under section 4, sub-section (1), or make different reports in respect of different parcels of such land, to the appropriate Government, containing his recommendations on the objections, together with the record of the proceedings held by him, for the decision of that Government. The decision of the appropriate Government on the objections shall be final."
On the plain reading of the aforesaid provision the Collector is the competent authority before whom objections have to be filed and who is vested with the power to hear the objections in making report for the purposes of acquisition of the land to the State Government.
The word 'Collector' has not been defined under the Act but in Section 3(11) of the General Clauses Act, 1897 it has been defined to mean in places other than the Presidency-towns as chief officer- in-charge of the revenue-administration of the district.
In the State of U.P. previously United Provinces later U.P. Land Revenue Act, 1901 used to govern the law relating to land revenue and the jurisdiction of the officers thereto.
Section 14 of the said Act provides that the State Government shall appoint in each district an officer who shall be a Collector of the district exercise all the powers and to discharge all the duties conferred and imposed on a Collector by the said Act or any other law for the time being in force.
According to Section 14-A of the Act an Additional Collector exercise such powers and discharge such duties of the Collector as may be prescribed and directed by the Collector concerned and in exercising such powers, he acts as the Collector of the district. At the same time, Section 15 of the said Act provides for the appointment of Assistant Collectors of the first or the second class who shall also be the Revenue Officers in the district but subordinate to the Collector. In other words Assistant Collector is not a Collector but a Revenue Officer subordinate to the Collector.
Now the administration of the revenue in the districts is governed by the U.P. Revenue Code, 2006. Section 12 of the Code provides that the State Government shall appoint a Collector in each district, who shall be in-charge of the revenue-administration thereof and shall exercise all powers and discharge all duties conferred and imposed upon him by or under the Code or any other law for the time being enforced meaning thereby that the Collector appointed therein addition to revenue-administration may also be conferred with powers and duties not only under the code but also under other laws in force such as the Land Acquisition Act.
The above provision also contemplates of the appointment of one or more Additional-Collector in the district to exercise and discharge all powers and duties of the Collector.
Section 4(8) of the Code defines 'Collector' to be an Officer appointed by the State Government under Section 12 of the Act and to include an Additional Collector and Assistant Collector of the First Class empowered by the State Government by notification to discharge all or any of the functions of a Collector under the Code.
For the sake of convenience Section 12 of the Code and the definition of the Collector contained in 4(8) of the Code are reproduced herein below:-
'Collector' means an officer appointed as such by the State Government under sub-section (1) of Section 12, and shall include--
(a) an Additional Collector appointed by the State Government under sub-section (2) of the said section: and
(b) an Assistant Collector of the first call empowered by the State Government by notification to discharge all or any of the functions of a Collector under this Code;
On the conjoint reading of the above two provisions it is implicit that the Collector is the Officer appointed by the State Government as the person in-charge of the revenue-administration of the district Additional Collector and other functions and duties provided under the Code and includes an Assistant Collector of the First Class who is so empowered by the State Government by notification to discharge all or any of the functions of the Collector under the Code.
In other words, in addition to the Collector and the Additional Collector an Assistant Collector of the First Class can discharge the functions of the Collector under the Code if he is so empowered by the State Government by a notification, such Assistant Collector however is not entitle to discharge any other functions of the Collector other than those under the Code such as those conferred upon the Collector under the other Acts including the Act.
In view of the aforesaid facts and circumstances, an Assistant Collector of the First Class is not entitle to function as Collector unless he is so notified by the Collector. Secondly, even if he is so notified he can only discharge functions of the Collector under the Code and not those that are conferred upon the Collector under the other Acts.
The Special Land Acquisition Officer who dealt with the objections of the petitioner/tenure holders and rejected the same is not the Collector or the person in-charge of the Revenue-administration. He is not even an Additional Collector. He is simply an Assistant Collector of the First Class but he cannot discharge the functions of the Collector either under the Code or under any other Act as there is nothing on record to establish that he has been so empowered by the State Government by means of a notification. Even if there is a notification of the State Government empowering the Assistant Collector First Class or the SLAO to discharge functions of the Collector, he would be entitle only to carry out only those functions of the Collector which are given under the Code. It means the SLAO has no authority or jurisdiction to discharge the functions of the Collector as envisaged under Section 5A of the Act as he is not the Collector or officer-in-charge of the revenue administration of the district or the Additional Collector.
In view of the aforesaid legal position, the rejection of the objections of the petitioner/tenure holders by the SLAO vide order dated 03.11.2011 is wholly illegal and without jurisdiction.
The Collector could not have made any report or recommendation on the basis of the said orders of the SLAO to permit the State Government to make a valid declaration under Section 6 of the Act.
In the light of the above discussion, we conclude that the declaration dated 11.05.2012 made under Section 6 of the Act is beyond time as prescribed by proviso (ii) to Section 6(1) of the Act and is a nullity and as the objections filed by the tenure holders under Section 5A of the Act were not dealt with by the Competent Authority their rejection is without jurisdiction and on that basis no report or recommendation could have been made for issuing the declaration under Section 6 of the Act.
Accordingly, on both the counts the petition succeeds and the declaration dated 11.05.2012 issued under Section 6 of the Act is quashed, in so far as the petitioners or their heirs and legal representatives are concerned.
The writ petition is allowed with no order as to costs.
Order Date :- 27.09.2019 piyush