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PETITIONER: STATE OF KERALA AND ORS.

       Vs.

RESPONDENT: ANTONY FERNANDEZ & ANR.

DATE OF JUDGMENT:       12/02/1998

BENCH: S.B.MJMUDAR, M. JAGANNADHA RAO

ACT:

HEADNOTE:

JUDGMENT:                THE 12TH DAY OF FEBRUARY, 1998 Present:               Hon’ble Mr.Justice S.B. Majmudar               Hon’ble Mr.Justice N. Jagannadha Rao Mr.P.S.Poti, Sr.  Advocate and  Ms. Malini Poduval, Advocate with hi for the appellants. Mr. P.  Krishnamurthy, Sr.  Advocate  and  Mr.  M.P.  Vinod, Advocate with him for the respondents.                          O R D E R      The following Order of the Court was delivered: Leave granted.      We have  heard learned  counsel for the parties finally in this appeal.      A  short  question  in  this  appeal  that  arises  for consideration is  as  to  whether  the  High  Court  in  the impugned judgment was justified in quashing the notification under Section  6 of the Land Acquisition Act (hereinafter to be referred to as ‘the Act) on town counts - (i) that it was issued beyond  one year  from the  date  of  publication  of Section 4 notification; and  (ii) that enquiry under Section 5A of  the Act  was not  conducted by the authorities before issuance of Section 6 notification.      So far  as the  first contention  is concerned, learned senior counsel,  Shri Poti,  vehemently contended  that  the said ground is not sustainable on the facts of this case. He submitted that  Section 4 notification was published on 27th May 1993  while Section  6 notification was gazetted on 08th June 1994.  Therefore, apparently  it appeared  to be beyond one  year   from  the   date  of   publications  Section   4 notification.  However,  he  invited  our  attention  to  an earlier decision in this case of the High Court of Kerala in a writ  petition numbered  as O.P.  No. 8235  of 1993-E. The said writ  petition was  filed by  the  present  respondents challenging Section  4 notification before the High Court at that  stage.     Their  contention  was  that  Section  4(1) notification  should   not  be   followed   by   Section   6 notification  without   giving   an   opportunity   to   the respondents to  have their  say under Section 5A of the Act. That writ petition was heard by Justice P.A. Mohammed in the Kerala High Court on 02nd July 1993 and was allowed. Learned

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Judge noted  that the  writ  petitioner,  i.e,  the  present respondent No.2 had expressed her readiness to surrender the remaining portion  of the  land since  she also preferred to have an  Industrial Training  Institute in  the locality and her claim for exemption of 55 cents of land just on the side of the road was required to be enquired into by the District Collector. This contention was accepted by the learned Judge by its  judgment dated 02nd July 1993 and in the penultimate paragraph of  the said  judgment learned judge directed that till final decision is taken in Ext.P.3 (written objections) the writ  petitioner shall  not  be  dispossessed  from  the disputed land.  It was  further pointed  out by  Shri  Poti, learned senior  counsel appearing  for the  appellants, that the final  decision on  the  objections  was  taken  by  the authorities on 19th January 1994 when the District collector forwarded the objections with recommendation to the Board of Revenue. Therefore,  the period from 02nd July 1993 when the learned Single  Judge delivered  the judgment  till at least 18th January 1994 amounting to almost six months ought to be excluded under  Explanation I  to Section  6 of  the Act for computing the period of one year for issuance of the Section 6 notification.      Accordingly Section  6 notification  can be  said to be within time.  Explanation I to Section 6 of the Act reads as under:      "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."      On the  second point,  Shri Poti, submits that it is of course true  that in  the counter  before the  High Court  a general statement  was made that objections under Section 5A were considered.  But in  the  present  proceedings  he  has produced sufficient  material to  show that  in the  enquiry under Section  5A of  the Act after the order of the learned Single Judge of the High Court full opportunity was given to the respondents  to have their say concerning the objections and they  were heard through their counsel and not only that they had  also addressed written representation to the Chief Minister wherein  they had  also admitted  that hearing  was given to  them by  the Collector but they did not expect any favorable response  from the  Collector. It  was, therefore, submitted by Shri Poti, that even on that count the impugned order is  patently erroneous  when it  holds that no enquiry under Section  5A was  conducted after  decision of the High Court in Writ Petition being O.P. No. 8235 of 1993-E.      Repelling these cententions, learned senior counsel for the respondents,  Shri Krishnamurthy,  submitted that so far as  the   question  of   elapsing  of  one  year  after  the publication  of   Section  14   notification  is  concerned, Explanation I  to Section  6 will  not be  available to  the appellant-State of  Kerala for  the simple  reason that  the period during  which action  or proceeding  which is  to  be taken pursuant  to  Section  4  notification,  had  not  got intercepted by  any stay  order of  the Court.  He, however, fairly conceded that stay of possession would amount to stay as held  by a  catenate of  decisions of  this Court but his submission  is  that  when  Section  1(1)  notification  was challenged before the High Court in O.P. No. 8235 of 1993-E, there was no occasion for the Court, while allowing the writ petition and  directing  the  authorities  to  consider  the

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objections, Ext  P.3 under  Section 5A,  to observe that the writ petitioner  shall not be dispossessed from the disputed land as  Section 6  notification  has  to  be  issued  after considering the  objections and,  there fore,  there was  no question  of   dispossessing  the   writ   petitioner   till objections are decided. in this connection he submitted that once enquiry  under Section  5A is to be held there would be no possibility  of dispensing  with such  enquiry under  the provisions of  Section 17(4) and consequently there would be no occasion  for dispossessing  the writ petitioner pursuant to Section  6 notification.  If at  all such  a threat would arise  after  Section  6  notification  is  issued  invoking Section 17(1)  of  the  Act  such  an  eventuality  had  not occurred when  o.p. No.  8235 of 1993 of 1993-E was decided. It was, therefore, contended that the direction contained in the 1993  cannot strictly  be considered  to be  any stay of further proceedings  as contemplated  by  Explanation  1  to Section 6.      At first  blush the said argument appeared to be having substance. But  on a  closer scrutiny we find that it cannot be sustained.  The  reason  is  obvious.  Explanation  I  to Section 6  is couched in very wide terms. It states that 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 that period is to be excluded. It is  not disputed that the proceedings under Section 5A is also pursuant  to Section  2(1) notification.  Secondly  the direction of  the Court  is that  possession should  not  be taken till  enquiry under  Section 5A is held and objections are  considered  which  would  amount  to  stay  of  further proceedings pursuant to Section 4 notification after Section 5A   enquiry. It  was obviously an order of competent court. It has  been held  by this  Court vide  [(1994) 4  SCC  145] Sangappa Gurulingappa  Sajjan  v.  State  of  Karnataka  and others: [1995  Supp (2)  SCC 423]  Government  of  T.N.  and another  v.   Vasantha  Bai:   and  [(1997)   9   SCC   128] Venkataswamappa v.  Special Deputy  Commissioner  (Revenue), that even  stay of  dispossession granted by the Court while considering challenge  to Section  4(1)  notification  would amount to  stay as  contemplated by Explanation 1 to Section 6. Consequently,  it has  to be  held that the period during which there  was stay  of dispossession, i.e, from 02nd July 1993 to 18th January 1994 amounting to almost 6 months is to be  excluded   and  consequently,   issuance  of  Section  6 notification on  20th May  1994 cannot  be said to be beyond the permissible  period as  per Explanation  I to Section 6. The first  contention raised  by Shri  Poti, learned  senior counsel for  the appellants,  therefore, has to be accepted. It is  held that the High Court had erred in taking the view that Section  6  notification  was  beyond  the  permissible period of  one year as contemplated by Section 6. In view of the aforesaid  conclusion of ours the wider question whether the period  of one  year is to be considered in the light of date of  Section 6  notification, i.e., 20th May 1994 or its publication in the Gazette on 08th June 1994 would pale into insignificance and  it is  not necessary  focus to  consider that wider question.      So far  as the  second point  is concerned we find that Shri Poti,  learned senior  counsel for  the  appellants  is equally on  a strong  footing. It is of course true that the effort which  was made  before us to sustain the proceedings under Section 5A enquiry, was not made before the High Court and a  general statement  was made  in the counter affidavit filled in  the writ  petition, that  as  per  the  direction contained in  the judgment  of the  high Court the appellant

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authorities considered  the objections  and disposed them of on merits.  Whether hearing  was given to the respondents in respect of written objections or not was not made clench and that seems  to have  weighed with  the High  Court  when  it observed that  it is  not in  dispute by the counsel for the parties, especially the counsel for the sent petitioner that hearing was  not given.  However, in  the rejoinder filed by the appellant  in these proceedings, at page 88 of the paper book it has been clearly averred in paragraph 4 as follows:      "Thereupon the respondent in the O.P. i.e Petitioner in this Special  Leave Petition issued notice fixing Section 5A enquiry on 25.8.1993 to all persons interested including the petitioners in  O.P. and as scheduled Section 5A enquiry was conducted on  25.8.1993. Shri  Rajesh K.S.  Counsel for  (1) Mrs. Annie  Antony (2)  Mr Antony  Fernandez (3)  Mrs. Moses Pereira and  (4) Augustine  Pereira was  present. He  argued that their  property has  very high  potentiality and if the property is  acquired they  will be put to irreparable loss, injury and  hardship. He also argued that the acquisition is unjust, illegal, arbitrary, vitiated by malafide and against all principles  of  natural  justice.  The  objections  were examined in  detail and  it was  found  that  they  are  not sustainable and  hence the  objections along  with connected records were  forwarded to  the Secretary,  Board of Revenue for the  approval of Draft Declination under Section 6 of LA Act overruling  the objections  raised by  the  petitioners. Board of  Reverted examined  the  objection  in  detail  and overruled  the   objections  vide  proceedings  No.  I.R.(C) 15634/94 (Annexure-C  in the  SLP) and draft declaration was approved on  20.5.94 and   declaration  made on the same day itself...."      Not only  that but  our attention  was invited  to  the written application  moved by  the respondents  to the Chief Minister,  copy   of  which  is  annexed  to  the  rejoinder affidavit at page 111 of the paper book. That application is addressed by  all the four respondents to the Chief Minister of  Kerala   and  in   paragraph  10  of  the  said  written application it had been averred as under:      "On the basis of the said order the      Distinct Collector Trivandrum heard      the  petitioner  on  25.8.1993  and      from the  attitude of  the District      Collector,     the      petitioners      apprehend  that   the   acquisition      authorities are  still attached  to      their  earlier   proposal   without      considering not  he merits  of  the      claims that  are put  forth by  the      petitioners  and   hence   we   are      presenting this petition before the      Hon’ble Chief  Minister  of  Kerala      for Your  Excellency’s kind hearted      and humanitarian considerations."      There averments  in the  rejoinder submitted by learned senior counsel  for the  appellants could not be effectively countenanced by  learned senior counsel for the respondents. Therefore, it  has to  be held  that after the  order of the learned Single Judge of Kerala High Court in O.P. No.8235 of 1993-E, full  opportunity was  given to  the respondents  to have their  say in  support of  written objections and their counsel was  heard. Consequently,  even the second ground on which the  High Court  allowed the  writ petition  cannot be sustained. As  a result of the aforesaid discussion the twin points on  which the  acquisition was  challenged before the High Court are found to be unsustainable.

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    In the  results, the ap[peal is allow, the judgment and order of  the High Court are set aside and the writ petition filed by  the respondents  is dismissed.  In the  facts  and circumstances of  the case,  there will  be no  order as  to costs.