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PETITIONER: STATE OF KARNATAKA & ORS.

       Vs.

RESPONDENT: B.S. NANJUNDAIAH

DATE OF JUDGMENT:       11/01/1996

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. G.B. PATTANAIK (J)

CITATION:  JT 1996 (1)   631        1996 SCALE  (1)625

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      Leave granted.       We have heard the counsel on both sides.       This  appeal by special leave arises from the order of the High  Court of  Karnataka made  on February  15, 1991 in W.P. No.9544/86. Notification under Section 4(1) of the Land Acquisition Act  was initially  c on  December 6,  1973. The declaration under  Section 6  was published  on February  3, 1975. Writ  Petition No.  10402/77 was  filed in  High Court challenging  the  notification  under  Section  4(1)and  the declaration under  Section 6  questioning  the  act  of  the Government in dispensing with the enquiry under Section 5-A. The Writ  Petition was allowed by the High Court on July 27, 1984 directing  the appellant  to conduct  an enquiry  under Section 5-A  from the  stage where the objections were filed by the  respondent. Thereafter,  the copy  of the recite was received by  the Land  Acquisition Officer  of  January  19, 1985. Notice  under Section  5-A was  given on  February 20, 1985.  and   after  giving  reasonable  opportunity  to  the respondent, enquiry  was concluded  and the Land Acquisition Officer, submitted  his report to the Government on July 31, 1985, The  respondent again  filed the  writ petition in the High Court  on June  7, 1986 challenging the validity of the notification under  Section 4(1)  and the  declaration under Section 6.       The  High Court in the impugned judgment has held that from December  6, 1973  till October  11, 1977, there was on order of  Court staying  the proceedings  by which  date the three year’s  period prescribed  under Section  6(1) of time and the  declaration under Section 6 come to be published on April 10. 1986. Consequently, the notification under Section 4(1) and  the declaration  under Section  6 stood  lapsed by operation of  Section 11-A  of the Act, amended by Act 68 of 1984.       It is contended by the counsel for the appellants that the view  of the  high court  is clearly illegal. In view of

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the fact  that the  notification under Section 6 was quashed giving  liberty   the  Government   to  proceed   with   the acquisition from  that stage  and  consider  the  objections raised by  the respondent,  the declaration  under Section 6 came to be published within two years thereafter. Therefore, the  declaration   under   Section   6   had   not   lapsed. Consequently,  section   11-A  has  no  application.  it  is contended for the respondent that as pointed out by the High Court from  1973 to  1977, there  was no  impediment for the appellants to have the declaration published under Section 6 within three  years since the declaration was not published, the  High   Court  was   fight  in  holding  that  the  land acquisition proceedings shall stand lapsed.       Having  considered  the  respective  contentions,  the question arises  whether the view taken by the High Court is correct in  law. It  is true  that  from  the  date  of  the notification published  under Section  4(1) till October 11, 1977 there  was no  stay granted  by the Court and the three years period  had lapsed.  But, unfortunately, the point was not  convassed   before  the   High  Court   in  the   first proceedings. Consequently,  by operation of explanation (iv) to Section  11,it was  open to  the respondent to raise that contention.  But  since  that  point  was  not  pressed  for consideration by  constructive res judicata, the question is no longer to be considered by the High Court.       It  is seen that the Land Acquisition Officer received the record  on January  19, 1985. He issued the notice under Section  5-A   to  consider  the  objections  filed  by  the respondent on February 20, 1995. Thereby there is a delay of one month  between the  date of receiving the record and the date of  issuing the notice. Thereafter the proceedings went on from  time to  time  at  the  instance  of  the  parties. Ultimately,the arguments  were concluded  on July  31, 1985. Therefore, the limitation, again begin to run from August 1, 1985.  The  declaration  was  published  on  April  10,1986. therefore, the  declaration, after  the order was set aside, in the  proceedings of the first writ petition was published within three  years from the date of the order. By operation of  Clause  (1)  of  section  6  the  declaration  has  been published within  three years  from the  date of  the  order passed by  the High  Court. Consequently,  the operation  of section 11-A  is not attracted to the facts of this case. As a result,  neither the  notification under  Section 6  shall stand lapsed.  The appellants  are directed  to conduct  and conclude the  award enquiry  as expeditiously  as  possible, preferably within  a period  of six  months from the date of the receipt of this order.      The appeal is accordingly allowed. No costs.