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PETITIONER: N. NARASIMHAIAH & ORS. ETC.

       Vs.

RESPONDENT: STATE OF KARNATAKA & ORS.UNION OF INDIA & ORS.

DATE OF JUDGMENT:       17/01/1996

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. HANSARIA B.L. (J) MAJMUDAR S.B. (J)

CITATION:  1996 SCC  (3)  88        JT 1996 (2)   269  1996 SCALE  (2)170

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      Leave granted.      Notification under Section 4(1) of the Land Acquisition Act [1  of 1894]  [for shorts  "the  Act"]  acquiring  total extent of  114 acres  of  land  in  Narayanpura  Village  in Bangalore  Districts  Karnataka  was  published  for  public purpose, viz.,  Defence Research & Development Organization, Government of  India. The  Government, exercising  the power under  Section  17(4),  dispensed  with  the  enquiry  under Section 5A  of the  Act and  the modification  under Section 4(1)  was   accordingly  published   on  January  22,  1987. Thereafter, the declaration under Section 6 was published on June 24, 1987.      The appellants had challenged the exercise of emergency power under  Section 17(4)  by filing  W.P. No.13316-20/1987 and batch  in the  High Court  of Karnataka  and the learned single Judge  quashed the order of the Government dispensing with enquiry under Section 5A and directed as under:      "In the  result these petitions are      partly allowed  and the declaration      dated 24.6.1987  published  in  the      Gazette dated  6.8.1987 made  under      Section 6(2)  of the  Act read with      Section 17(1)  of the  Act as  also      that  portion  of  the  Preliminary      Notification under  Section 4(1) of      the Act dispensing with the enquiry      under Section  5A of  the Act in so      far as  the petitioners  lands  are      concerned and also the notice under      Section  9(1)   of  the  Act  dated      12.8.1987  are   quashed  reserving      liberty  for   the  authorities  to      continue      the       acquisition

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    proceedings  from   the  stage   of      preliminary    notification.    The      petitioners   shall    file   their      objections against  the preliminary      notification within  30  days  from      the date  of receipt  of this order      and   they    shall   file    their      objections against  the preliminary      notification within  30  days  from      the date  of receipt  of this order      and they  shall present  themselves      before the Land Acquisition Officer      -  3rd   respondent  on   15.7.1988      without awaiting  any fresh notices      from the  said  officer.  The  Land      Acquisition Officer  shall hold the      enquiry under Section 5A of the Act      expeditiously  and   complete   the      proceedings  in   accordance   with      law."      Thereafter, enquiry  under Section 5A was conducted and declaration thereof  was published  on  May  13,  1989.  The validity of this declaration was again questioned in present Writ Petition  No.19245/89 and  batch.  The  learned  single Judge again  allowed the  writ petitions. The Division Bench by judgment  dated April  22, 1993 in Writ Appeal No.2189-97 of 1992  and batch  allowed the appeals; set aside the order of the  learned single  Judge and  consequently  upheld  the declaration published under Section 6 of the Act.      The learned  single Judge  had quashed the notification in the  first instance  giving liberty  to the Government to conduct an  enquiry under  Section 5A and it was accordingly completed within  one year  from the  date of  the judgment. Declaration under  Section 6  was published. The declaration under Section  6 published  in the first instance was within the period  prescribed under  proviso to  Section 6(1).  The Division Bench  has held  that after  the declaration  under Section 6  was quashed in the first instance, the limitation of one  year does  not apply.  It further held that the view that the declaration under Section 6 is still required to be published from  the date  of the  notification under Section 4(1) is  not correct  in law. lt also found that since there was no  evidence on  record as  to which was the last of the dates of  the publications  contemplated under Section 4(1), it could  not be  said that  the limitation  under Section 6 from that date is barred by limitation.      Shri Rama  Jois, learned  senior counsel  appearing for the appellants,  contended that  in view of the judgments of this Court  in Oxford English School vs. Government of Tamil Nadu &  Ors. [(1995)  5 SCC  206] and P. Chinnanna & Ors vs. State of  A.P. Ors. [(1994) 5 SCC 486], the view of the High Court is  not correct in law. It is further contended by Sri Haresh Kaushik  that if the view of the High Court is upheld there would be two dates of notification under Section 4(1), namely,  the  notification  as  originally  published  under Section 4(1)  and the  date which  was upheld  by the  Court after the publication of second declaration under Section 6. The date of declaration under Section 6 will be the date for determination of  compensation  under  Section  23(1).  That would be incongruous with the schemas of the Act. Therefore, construction should  be put  up in  such  a  way  that  both Section 4(1)  notification and  Section 5 declaration should be consistent with the scheme of the Act.      Shri Shukla,  the learned  senior counsel appearing for the Union of India, contended that since the validity of the

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notification under  Section 4(1)  was upheld  in  the  first round of the litigation, what was left to the Government was to  conduct  enquiry  under  Section  5A  in  terms  of  the direction  issued  by  the  High  Court  and  on  completion thereof, if  the declaration  is published  under Section 6, the statutory compliance is made. Notification under Section 4(1) stands  upheld. Otherwise  incongruity would  arise  in every case.  Though the  notification under Section 4(1) and the declaration  under Section  6 were  published within the limitation prescribed under the Act, by act of the Court, if the declaration  under Section  6 is quashed giving power to the Government  to conduct an enquiry under Section 5A after giving  opportunity  to  the  claimants,  declaration  under Section 6  can never  be  made  within  original  period  of limitation and  public purpose  would be  in jeopardy  since under no  circumstance the  enquiry  and  declaration  under Section 6  could be done within the limitation prescribed in the first  instance. The  second exercise  would be rendered fruitless since by that date the limitation prescribed under the proviso  would stand expired. In a given case though the action of  the Government  may  be  within  limitation,  the orders of  the Court  would intervene  to defeat  the public purpose. He, therefore contended that the construction would be such  as would  subserve not  only the public purpose but also the  orders of the court would be complied with and the remedy of judicial review would be meaningful.      Having given  careful and  anxious consideration to the respective  contentions,   the  question   is;  whether  the limitation prescribed  under second  proviso to Section 6(1) would be  applicable after  the notification  under  Section 4(1) has  been quashed  by the  High Court?  With a  view to appreciate the contentions, it is necessary to look into the scheme of  the Act.  Section 4(1)  of the Act gives power of eminent domain,  viz,, to  acquire the  land of an owner for public purpose.  Section 4(1)  enables the  officers to have the notification published in the State Gazette or the local Gazette, as  the case  may be,  amended  as  per  the  State Amendment. The  local publication  in the  prescribed manner enables the  authorities under  the Act  to take measurement etc. to  determine extent  of the  land required  for public purpose and  then to  take a  decision to  proceed with  the accusation as  contemplated in Chapter III of the Act. Under Section  17(1)   read  with  Section  17(2),  if  the  State Government is  of the  opinion that  the lands  are urgently required for  taking  possession  of  the  land  for  public purpose, Section  17(4) gives  power to the State Government to dispense  with the  enquiry under  Section 5A. Thereafter Section 6  declaration is required to be published. After 15 days from  the date  of expiry  of the  notice issued  under Section 9, the Government is empowered to take possession of the land. By operation of Section 17(2) though award has not been made, the lands stand vested in the State free from all encumbrances. In  other cases,  after the  declaration under Section 6  was published  in the  prescribed manner,  public purpose mentioned  in Section 4(1) becomes conclusive. Award enquiry in  Part III shall be done through and after passing the award,  the possession  of the  land would  be taken and under Section  16 of  the Act  the lands stand vested in the State  free   from  all   encumbrances.   Determination   of compensation under  Section 18  etc. would  be  followed  by stages.      In the  light of  the  scheme  of  the  Act,  when  the exercise of  the power  under Section  17(4) dispensing with enquiry under  Section 5A  is  quashed  by  the  Court,  the question would  be whether the State is required to have the

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declaration published  under  Section  6  within  limitation prescribed under proviso to Section 6(1) of the Act? Section 6(1) reads thus :      "6.  Declaration   that   land   is      required for a public purpose.- (1)      Subject to  the provisions  of Part      VII   of   this   Act,   when   the      appropriate      Government      is      satisfied,  after  considering  the      report, if  any, made under Section      5-A,  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,      subsection  (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 subsection (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  that no such      declaration shall  be  made  unless      the compensation  to be awarded for      such  property  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 I.  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

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    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.      The limitation,  under the  first proviso begins to run from the  last of  the date  on which the notification under Section 4(1)  is published.  By operation  of clause (ii) of first proviso  to sub-section  (1),  the  declaration  under Section 6  shall be  published within one year from the date of  the  last  of  the  dates  of  the  publication  of  the notification as  required under  Section 4(1)  of  the  Act. Explanation I  to Section  6(1) postulates that in computing the period  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 the Court, the period during which the proceedings are  pending, shall be excluded. In other words, before the  declaration under  Section 6  is  published,  if further proceedings  are stayed  by an  order of  the Court, further action stands interdicted, the running of limitation stops and  the time occupied in the Court proceedings should be excluded  in computation  of  the  period  of  limitation mentioned in  proviso to Section 6(1). After the said period is excluded  and if  the declaration published is within the limitation of  one year,  then necessarily  the notification under Section 4(1) would remain valid.      If that be the position, when the exercise of the power under Section 17(4) dispensing with enquiry under Section 5A is quashed by the Court and liberty is given to the State to proceed further  in accordance  with law,  i.e., to  conduct enquiry under  Section 5A  and  even  after  conducting  the enquiry as  prescribed under Section 5A the Government forms opinion that  the land  was needed  for public  purpose  and declaration was  published, the  question  is:  whether  the limitation prescribed under clause (ii) of the first proviso to sub-section  (1) would  still  remain  operative  and  be capable to be complied with?      Having considered the respective contentions, we are of the considered  view that  if the  construction as put up by the learned  counsel for the appellants is given acceptance, i.e., it  should be  within one  year from  the last  of the dates of  publication under Section 4(1), the public purpose would always be frustrated. It may be illustrated thus: In a given case  where the  notification under  Section 4(1)  was published, dispensing  with the enquiry under Section 5A and declaration was  published  within  one  month  and  as  the urgency in  the opinion  of the  Government was such that it did not  brook the delay of 30 days and immediate possession was necessary,  but possession was not taken due to dilatory tactics of  the interested person and Court ultimately finds after two  years that  the exercise of urgency power was not warranted and  so  it  was  neither  valid  nor  proper  and directed the  Government  to  give  an  opportunity  to  the interested person  and the State to conduct an enquiry under Section 5A,  then the  exercise of the power pursuant to the direction of  the Court  will be  fruitless as it would take time to  conduct enquiry.  If the  enquiry  is  dragged  for obvious reasons,  declaration under  Section 6(1)  cannot be published within  the limitation  from the  original date of the publication  of the  notification under  Section 4(1). A valid notification  under Section  4(1) becomes  invalid. On the other  hand, after conducting enquiry as per Court order and, if  the declaration under Section 6 is published within

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one year from the date of the receipt of the order passed by the High  Court, the notification under Section 4(1) becomes valid since  the action  was done  pursuant to the orders of the Court  and compliance  with the limitation prescribed in clauses (i) and (ii) of the first proviso to sub-section (1) of the Act would be made.      It is  true that  this Court  in Oxford > School’s case (supra) in  paragraph 7 had held that when declaration under Section 6  was quashed  and the  notification under  Section 4(1) was  upheld. the  second declaration  is required to be published within the same period prescribed in clause (i) of first proviso.  In that  case, the limitation of three years under clause  (i) of  the first  proviso to  sub-section <1) could not  be complied  with. The notification under Section 4(1) was  held  to  be  invalid.  Unfortunately,  the  above distinction was not brought to the notice of this Court when the case was considered and decided. Similarly, the ratio in P.Chinnanna’s case  (supra) directly  does not deal with the problem but  observations in  paragraph  S  do  support  the contention of  the appellants as possession was not taken in these cases  and the  observations get attracted. But it was not necessary  in that case to deal with that question since the possession under Section 17(2) was already taken and the land stood vested in the State.      This conclusion  reached by  us  gets  support  from  a decision of  this Court  rendered in Director of Income-tax, New Delhi  & Anr  v. Pooran Mal and Sons & Anr [(1975) 2 SCR 104] under  the Income  Tax Act,  in an analogous situation. Under Section  132 of  the  Income  Tax  Act,  1961,  it  is mandatory that  an order  is requires  to be made under sub- section  (5)   within  one  year  from  the  date  when  the proceedings are  taken. In  that case proceedings were taken and order  was made  within one year, but without any notice to the  assessee. The  order was  quashed. From  the date of initial  period  of  limitation  the  subsequent  order  was barred. It  was contended  that the  action initiated  under Section 132  was required  to be  done within  the  original period and  an order  made after  expiry of  the period, was invalid in  law. This  Court considered  the contention  and held that  if the  period of  time prescribed  under Section 132(5) is  held to  be mandatory,  and if  any direction was given by  a Court  in a  writ proceedings,  an order made in pursuance of  such a  direction  would  not  be  subject  to limitation prescribed  under Section  132(5).  Even  if  the period of  time fixed  under Section  132(5) is  held to  be mandatory that  requirement was  satisfied  when  the  first order was  made. Thereafter, if any direction is given under Section 132(12)  or by  a court  in writ  proceedings, as in this case, it cannot be said that an order made in pursuance of such  a direction  would be  subject  to  the  limitation prescribed under  Section 132(5).  Once the  order has  been made 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. The  contention that even  such a fresh order should be passed within ninety days, would  make the  sub-sections (11) and (12) of Section 132 ridiculous  and useless. It cannot be said that what the notified authority could direct under Section 132, could not be done  by a  High Court  while exercising  its power under Article 226  of the  Constitution. To  hold otherwise  would make the  powers of  the  Court  under  Article  226  wholly ineffective.  The  Court  in  exercising  its  powers  under Article 226  has to mould the remedy to suit to the facts of a case. When Section 132(5) permits fn Income-tax Officer to

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pass an  order within  ninety days  that power cannot in any way be whittled down by a rule made under that section.      It is  contended by  Shri Naresh  Kaushik that ratio as noted above  was founded  on concession  and, therefore, the ratio would not be applied to the facts of this case. We are afraid, we  cannot accept  the contention.  This  Court  had pointed out  at page 111 at D that apart from the consent of the parties, even on point of law, that would be the result. Similar view  was taken by a Full Bench of Madras High Court in K.C.  Grounder &  Anr. v. Govt. of Tamil Nadu & Anr. [AIR 1980 Madras 251].      We are  of the  opinion that  running of the limitation should be  counted from  the date  of the order of the court received by  the Land Acquisition Officer and declaration is published within  one year  from  that  date.  It  would  be consistent with  the scheme of the Act and it would subserve the  public   purpose.  Parliament   amended  the   Act  and prescribed limitation since the acquisition proceedings were unduly delayed for years and the owners of lands were put to hardship. If  operation of  limitation under  clause [ii] of first proviso  to Section 6(1) is not applied, we would come back  to  square  and  defeat  the  legislative  purpose  of limitation prescribed under the Act. The Government is bound under the  order of  the Court  to  hold  an  enquiry  under Section 5A.  Thereafter, if the Government still opines that the land  is needed  for  publication  purpose,  declaration under Section  6 should  be published  within  one  year  as indicated above.  This interpretation  would render judicial review  efficacious   and  meaningful   and  public  purpose subserved and  the aggrieved  owner would get an opportunity to  vindicate   his  grievance.   Thus,  we  hold  that  the limitation prescribed in clause (ii) of the first proviso to sub-section {1)  of Section  6 would apply to publication of declaration under  Section 6(1)  afresh. If  it is published within one year from the date of the receipt of the order of the Court by Land Acquisition Officer, declaration published under Section 6(1) would be valid.      The second  contention that there would be two dates of notification under  Section 4(1)  as initially published and the one  deemed to  be published consequence to upholding of second  declaration   under  Section   6(1)  and   that  the compensation  under   Section  23(1)   is  required   to  be determined with  reference to second date, is untenable. The declaration under  Section 6(1) gives only conclusiveness to the  public  purpose  specified  in  Section  4(1)  and  the notification under Section 4(1) still remains valid which is relevant for  the purpose  of computation of market value as envisaged under  Section 23(1)  of the  Act. When  the Court upholds the  declaration it would relate back to the date of publication under  Section 4(1)  Therefore, there are no two dates for  the purpose of computation of the market value as contended for  the purpose of enquiry under Section 5A is to determine whether  the land is needed for the public purpose and the  affected owner or interested person gets a right to show that  the public  purpose mentioned  in Section 4(1) is not the  public purpose  or some other land is more suitable or is  available for the public purpose or his lands need to be excluded  from public purpose as the proposed land may be in excess of requirement. Once the Government, after holding the enquiry  has considered  the objections and decided that the land is needed for public purpose, declaration published under Section  6  would  become  conclusive  of  the  public purpose. Nonetheless, relevant date for Section 23(1) is the date of  the publication  of the  notification under Section 4(1).

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    Admittedly, in  this case  the second  declaration  was published within  one year  even from  the date of the order passed by  the High  Court and,  therefore, the  view of the Division Bench  is required to be upheld. Thus, we hold that the declaration published under Section 6(1) on May 13, 1989 is valid  and the  notification dated January 22, 1987 under Section 4(1)  does not  become invalid. The Land Acquisition Officer should conduct and complete award enquiry within one year from  the date  of the  receipt of  the order  of  this Court.      The appeals  are  accordingly  dismissed  but,  in  the circumstances, without costs.