WP/16616/2008 of Smt. Karuturi Venkayamma W/o Rama Rao Vs The District Collector, West Godavari on 31 December 2013

ORDER:

This writ petition, under Article-226 of the Constitution of India, is filedchallenging the action of the respondents in proceeding further pursuant tothe notification issued by the 1[st] respondent-District Collector videRoc.No.F5/SW/130/2006 dated 13.05.2006 issued under Section 4(1) of theLand Acquisition Act, 1894 (in brief ‘the Act’).

The facts in nutshell, as per the affidavit filed in support of the writpetition, are as follows:

The 1[st] respondent-District Collector issued a notification under Section 4(1) of the Act, proposing to acquire the lands of the petitioner hereinsituated in Survey Nos. 195/2A and 196/2 of Vadapalli Village, KovvurMandal, West Godavari District. The said notification was published on26.05.2006. The respondent-Authorities, by invoking the provisions ofSection 17(4) of the Act dispensed with the enquiry under Section 5(A) of theAct. Hence, the petitioner herein and two others filed W.P.No.10900 of 2004before this Court. In the said writ petition, interim stay was granted on01.06.2006 and eventually, the said writ petition was disposed of on06.12.2006, directing the respondents herein to hold enquiry under Section5(A) of the Act. Subsequently, the 2[nd] respondent-Land Acquisition Officerissued a notice dated 13.02.2007, asking the petitioner to submit objections. When there was an attempt of interference by the 3[rd] respondent with thepossession and enjoyment of the petitioner during the enquiry under Section5-A of the Act, the petitioner herein approached this Court by filingW.P.No.26515 of 2007 and the same was disposed of on 18.12.2007 byrecording the statement of the learned Assistant Government Pleader forLand Acquisition to the effect that Section 5-A enquiry was already held on 03.06.2007 but no orders were passed. In the said order, this Court alsodirected that the petitioner should not be dispossessed from the land till thecompletion of the legal and procedural formalities envisaged under the Act. The petitioner received the proceedings in Roc.No.G4/120/2006 dated22.12.2007 on 18.05.2008 issued by the District Collector under Section 5-Aof the Act.

Contending that the respondents cannot issue Section 6 declaration in view of the expiry of one year period from the date of publication of 4(1)notification and that the entire proceedings are lapsed, the present writpetition has been filed.

A counter-affidavit, deposed by the 2[nd] respondent herein, is filed onbehalf of respondents 1 to 3, principally contending that the notification underSection 4(1) of the Act was approved and published by the District Collector,West Godavari District on 26.05.2006 and aggrieved by the same one of theland owners namely, Sri D.Ch.Joga Rao filed W.P.No.11764 of 2006 andthis Court issued directions to the respondents therein on 16.05.2006 to holdenquiry under Section 5-A of the Act. In the counter-affidavit it is furtherstated that the writ petitioner herein filed W.P.No.10900 of 2006 and obtainedinterim stay on 01.06.2006 and the same was vacated on 06.12.2006. It isalso stated that once again Sri D.Ch.Joga Rao filed W.P.No.241 of 2007 andobtained interim stay on 04.01.2007 in W.P.M.P.No.306 of 2007 and thesame was vacated by this Court on 01.05.2007. It is further stated that thepetitioner was issued notice to attend 5-A enquiry on 15.03.2007 and afterconducting enquiry, the Land Acquisition Officer submitted a report to theDistrict Collector and after considering the same, the 1[st] respondent issuedproceedings dated 22.12.2007, rejecting the objections and thereafter draftdeclaration was published on 13.06.2008. The said counter further seeks tojustify the action of respondents 1 to 3 in not issuing the declaration within one year by contending that theperiod covered by stay in W.P.No.10900 of 2006 i.e., 01.06.2006 to

06.12.2006 and in W.P.No.241 of 2007 i.e., from 04.01.2007 to 01.05.2007and the period of 9 months 3 days covered by enquiry under Section 5-A ofthe Act are liable to be deducted from the period of one year.

Pleading in the manner indicated supra, it is prayed by the respondentsherein to dismiss the writ petition.

Heard Sri G.Rama Rao, learned counsel for the petitioner, learnedGovernment Pleader for Land Acquisition and Sri K.V.L.Narasimha Rao,learned counsel for the impleaded 4[th] respondent.

It is contended by the learned counsel for the petitioner that the 1[st]respondent issued notification under Section 4(1) of the Act, which waspublished on 26.05.2006. As the 1[st] respondent published declaration underSection 6 of the Act on 13.06.2008, but not within one year as stipulatedunder Section 6 of the Act, entire proceedings initiated by the respondentsherein stood lapsed. It is further contended by the learned counsel for thepetitioner that except the period mentioned under Section 6 of the Act, noother period is liable for exclusion while computing the period of one year forpublication of Section 6 declaration from the date of 4(1) notification. Insupport of his submissions and contentions, the learned counsel for thepetitioner places reliance on the judgment of the Hon’ble Apex Court inPadma Sundara Rao and Others v. State of Tamilnadu[[1]], Ashok Kumarv. State of Haryana[[2]], Anil Kumar v. State of Bihar[[3]]and DevendarKumar Tyagi v. State of U.P.[[4]]

Per contra, it is contended by the learned Government Pleader that thecontention of the petitioner with regard to lapsing of proceedings by afflux oftime as stipulated under Section 6 of the Act is unsustainable and therespondents are justified in issuing declaration under Section 6 of the Act. Itis eventually prayed by the learned Government Pleader to dismiss the writpetition.

For the purpose of effective adjudication of the issue involved in thepresent writ petition, it is germane and relevant to refer to the provisions of Section 6 of the Land Acquisition Act, which read as under:

“6. Declaration that land is required for a public purpose.-

(1) Subject to the provision of Part VII of this Act,[ appropriateGovernment] is satisfied, after considering the report, if any, madeunder section 5A, sub- section (2)], that any particular land is neededfor a public purpose, or for a Company, a declaration shall be madeto that effect under the signature of a Secretary to such Governmentor of some officer duly authorized to certify its orders[ and differentdeclarations may be made from time to time in respect of differentparcels of any land covered by the same notification under section 4,sub- section (I) irrespective of whether one report or different reportshas or have been made (wherever required) under section 5A, sub-section (2)]; [ Provided that no declaration in respect of any particularland 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 beforethe commencement of the Land Acquisition (Amendment) Act, 1984(68 of 1984 ), shall be made after the expiry of three years from thedate of the publication of the notification; or

(ii) published after the commencement of the Land Acquisition(Amendment) Act, 1984 (68 of 1984 ), shall be made after the expiryof one year from the date of the publication of the notification:]Provided further that] no such declaration shall be made unless thecompensation to be awarded for such property is to be paid by aCompany, or wholly or partly out of public revenues or some fundcontrolled or managed by a local authority. [ Explanation 1.- Incomputing any of the periods referred to in the first proviso, the periodduring which any action or proceeding to be taken in pursuance of thenotification issued under section 4, sub- section (1), is stayed by anorder of a Court shall be excluded. Explanation 2.- Where thecompensation to be awarded for such property is to be paid out of thefunds of a corporation owned or controlled by the State, suchcompensation shall be deemed to be compensation paid out of publicrevenues.]

(2) [ Every declaration] shall be published in the Official Gazette[ andin two daily newspapers circulating in the locality in which the land issituated of which at least one shall be in the regional language, andthe Collector shall cause public notice of the substance of suchdeclaration to be given at convenient places in the said locality (thelast of the dates of such publication and the giving of such publicnotice, being hereinafter referred to as the date of the publication ofthe declaration), and such declaration shall state] the district or otherterritorial division in which the land is situate, the purpose for which Itis needed, its approximate area, and, where a plan shall have beenmade 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”

A reading of the above provision of law makes it very much manifestthat the respondent-Authorities are not authorized to issue declaration underSection 6 of the Act after the expiry of one year period from the date ofpublication of notification under Section 4(1) of the Act. The only exceptionas per Explanation No.1 of the said provision of law is that the period duringwhich any action or proceedings can be taken in pursuance of the notificationunder Section 4(1) of the Act is stayed by an order of the Court is liable to beexcluded.

In the light of the above facts and circumstances and the provisionsunder Section 6 of the Act, now it is to be seen as to whether the respondent-Authorities are justified in proceeding further after expiry of term of one yearfrom the date of 4(1) notification and whether said action is sustainable and inaccordance with the provisions of the legislation.

Right to property is a constitutional right enshrined under Article 300-Aof the Constitution of India, which in clear and unequivocal terms mandatesthat no citizen shall be deprived of his/her property except in accordance withthe procedure established by law. The Land Acquisition Act is anexproprietary legislation, which authorizes the State to compulsorily acquirelands of citizens notwithstanding their wish. Therefore, the provisions of thesaid legislation are required to be adhered to scrupulously without anydeviation. I n Padma Sundara Rao and Others v. State of Tamilnadu (supra), the Hon’ble Supreme Court at paragraphs 11 to 16 held as under:

“ 11. It may be pointed out that the stipulation regarding the urgencyin terms of Section 5-A of the Act has no role to play when the periodof limitation under Section 6 is reckoned. The purpose for providingthe period of limitation seems to be the avoidance of inconvenienceto a person whose land is sought to be acquired. Compensation getspegged from the date of notification under Section 4(1). Section 11provides that the valuation of the land has to be done on the date ofpublication of notification under Section 4(1). Section 23 deals withmatters to be considered in determining the compensation. Itin terms of Section 5-A of the Act has no role to play when the periodof limitation under Section 6 is reckoned. The purpose for providingthe period of limitation seems to be the avoidance of inconvenienceto a person whose land is sought to be acquired. Compensation getspegged from the date of notification under Section 4(1). Section 11provides that the valuation of the land has to be done on the date ofpublication of notification under Section 4(1). Section 23 deals withmatters to be considered in determining the compensation. It provides that the market value of the land is to be fixed with referenceto the date of publication of the notification under Section 4(1) of theAct. The prescription of time-limit in that background is, therefore,peremptory in nature. In Ram Chand v. Union of India[10]it was heldby this Court that though no period was prescribed, action within areasonable time was warranted. The said case related to a disputewhich arose before prescription of specific periods. After thequashing of declaration, the same became non est and was effaced.It is fairly conceded by learned counsel for the respondents that thereis no bar on issuing a fresh declaration after following the dueprocedure. It is, however, contended that in case a fresh notificationis to be issued, the market value has to be determined on the basisof the fresh notification under Section 4(1) of the Act and it may be acostly affair for the State. Even if it is so, the interest of the personwhose land is sought to be acquired, cannot be lost sight of. He is tobe compensated for acquisition of his land. If the acquisitionsought to be made is done in an illogical, illegal or irregular manner,he cannot be made to suffer on that count.

12. The rival pleas regarding rewriting of statute and casusomissus need careful consideration. It is well-settled principle in lawthat the court cannot read anything into a statutory provision which isplain and unambiguous. A statute is an edict of the legislature. Thelanguage employed in a statute is the determinative factor oflegislative intent. The first and primary rule of construction is that theintention of the legislation must be found in the words used by thelegislature itself. The question is not what may be supposed and hasbeen intended but what has been said. “Statutes should beconstrued, not as theorems of Euclid”, Judge Learned Hand said,“but words must be construed with some imagination of the purposeswhich lie behind them”. (See Lenigh Valley Coal Co. v.Yensavage[11].) The view was reiterated in Union of India v. Filip TiagoDe Gama of Vedem Vasco De Gama[12].

13. In D.R. Venkatchalam v. Dy. Transport Commr.[13]it wasobserved that courts must avoid the danger of a priori determinationof the meaning of a provision based on their own preconceivednotions of ideological structure or scheme into which the provision tobe interpreted is somewhat fitted. They are not entitled to usurplegislative function under the disguise of interpretation.

14. While interpreting a provision the court only interprets the lawand cannot legislate it. If a provision of law is misused and subjectedto the abuse of process of law, it is for the legislature to amend,modify or repeal it, if deemed necessary. (See Rishabh AgroIndustries Ltd. v. P.N.B. Capital Services Ltd.[14]) The legislativecasus omissus cannot be supplied by judicial interpretative process.Language of Section 6(1) is plain and unambiguous. There is noscope for reading something into it, as was done in Narasimhaiahcase[1]. In Nanjudaiah case[4]the period was further stretched to havethe time period run from date of service of the High Court’s order.Such a view cannot be reconciled with the language of Section 6(1).

If the view is accepted it would mean that a case can be covered bynot only clause (i) and/or clause (ii) of the proviso to Section 6(1), butalso by a non-prescribed period. Same can never be the legislativeintent.

15. Two principles of construction — one relating to casusomissus and the other in regard to reading the statute as a whole —appear to be well settled. Under the first principle a casus omissuscannot be supplied by the court except in the case of clear necessityand when reason for it is found in the four corners of the statute itselfbut at the same time a casus omissus should not be readily inferredand for that purpose all the parts of a statute or section must beconstrued together and every clause of a section should beconstrued with reference to the context and other clauses thereof sothat the construction to be put on a particular provision makes aconsistent enactment of the whole statute. This would be more so ifliteral construction of a particular clause leads to manifestly absurd oranomalous results which could not have been intended by thelegislature. “An intention to produce an unreasonable result”, saidDanckwerts, L.J., in Artemiou v. Procopiou[15](at All ER p. 544-I), “isnot to be imputed to a statute if there is some other constructionavailable”. Where to apply words literally would “defeat the obviousintention of the legislation and produce a wholly unreasonable result”,we must “do some violence to the words” and so achieve thatobvious intention and produce a rational construction. [Per Lord Reidin Luke v. IRC[16]where at AC p. 577 he also observed: (All ER p.664-I) “This is not a new problem, though our standard of drafting issuch that it rarely emerges.”]

16. The plea relating to applicability of the stare decisis principles is clearly unacceptable. The decision in K. Chinnathambi Gounder[8]was rendered on 22-6-1979 i.e. much prior to the amendment by the1984 Act. If the legislature intended to give a new lease of life in thosecases where the declaration under Section 6 is quashed, there is noreason why it could not have done so by specifically providing for it.The fact that the legislature specifically provided for periods coveredby orders of stay or injunction clearly shows that no other period wasintended to be excluded and that there is no scope for providing anyother period of limitation. The maxim actus curiae neminem gravabithighlighted by the Full Bench of the Madras High Court has noapplication to the fact situation of this case.”

In Ashok Kumar v. State of Haryana (supra) held in paragraphs 14

to 17 as under:

In Ashok Kumar v. State of Haryana (supra) held in paragraphs 14

to 17 as under:

“ 14. Proviso (ii) appended to sub-section (1) of Section 6 of the Actclearly debars making of any declaration in respect of any particularland covered by a notification issued under sub-section (1) of Section4 after the expiry of one year from the date of publication thereof.Explanation (1) appended to the said proviso, however, stipulatesthat in computing any of the periods referred to in the first proviso, theperiod during which any action or proceeding to be taken in pursuance of the notification issued under Section 4(1), is stayed byan order of a court, shall be excluded. On a plain reading of theaforementioned provisions, there cannot be any doubt whatsoeverthat the period which is required to be excluded would be one, duringwhich the action or proceeding taken was subjected to any order ofstay passed by a competent court of law.

15. Provisions of the Act should be construed having regard tothe purport and intent thereof. Section 6 of the Act is beneficent to thelandowners.

16. In Hindustan Petroleum Corpn. Ltd.v. Darius ShapurChenai[1], it was held: (SCC p. 640, para 29)

“29. The Act is an expropriatory legislation. This Court in State ofM.P. v. Vishnu Prasad Sharma[2]observed that in such a case theprovisions of the statute should be strictly construed as it deprives a person of his land without consent. [See also Khub Chand v. Stateof Rajasthan[3]and CCE v. Orient Fabrics (P) Ltd.[4]]”

17. We have noticed hereinbefore that the proviso appended tosub-section (1) of Section 6 is in the negative term. It is, therefore,mandatory in nature. Any declaration made after the expiry of oneyear from the date of the publication of the notification under sub-section (1) of Section 4 would be void and of no effect. An enablingprovision has been made by reason of the Explanation appendedthereto, but the same was done only for the purpose of extending theperiod of limitation and not for any other purpose. The purport andobject of the provisions of the Act and in particular the proviso whichhad 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 wasinserted for the benefit of the owners of land. Such a statutory benefit,thus, cannot be taken away by a purported construction of an orderof a court which, in our opinion, is absolutely clear and explicit.”

In Anil Kumar v. State of Bihar (supra) in paragraphs 17, 18, 19 and 20

held as under:

“ 17. The use of the expression “not exceeding three years fromcommencement of such occupation” leaves no manner of doubt thatwith effect from 31-1-1979 i.e. the date on which three years’ periodcounted from 1-2-1976 ended, continued occupation of theappellant’s land by the respondents became illegal per se.

18. We may now advert to the main question as to whether thedeclaration issued under Section 6(1) was a nullity because thesame was issued after expiry of the period of one year specified inthe first proviso (ii) to that section. This issue is no longer res integraand must be treated as settled by the judgments of this Court inPadma Sundara Rao v. State of T.N.[6],Ashok Kumar v. State ofHaryana[7]and a recent judgment in Devender Kumar Tyagi v. Stateof U.P.[8]In Padma Sundara Rao case[6]the Constitution Benchunequivocally held that the second proviso to Section 6(1) ismandatory and a declaration issued beyond the period of one year from the last publication of the notification issued under Section 4(1)is nullity. In view of the proposition laid down in these judgments, itmust be held that the learned Single Judge had rightly held that thedeclaration issued under Section 6(1) was non est.

19. The learned counsel for the respondents relied upon thecorrigendum dated 1-7-1994 and argued that if the period of one yearis counted from the date of corrigendum then the declaration issuedunder Section 6(1) cannot be treated as beyond the period of oneyear. We are unable to accept the submission of the learned counselfor two reasons. Firstly, it has not been shown whether thecorrigendum had been published in the manner prescribed underSection 4(1). Secondly, the corrigendum was issued only forcorrecting the typographical mistakes in the gazette publication of thenotification issued under Section 4(1). Such corrigendum will relateback to the date on which the notification under Section 4(1) wasissued and the same cannot be relied upon for recording a findingthat the declaration under Section 6(1) was issued within the periodprescribed under the first proviso (ii) to that section.

20. In the result, the appeal is allowed, the impugned judgment isset aside and the order passed by the learned Single Judge quashingthe acquisition proceedings is restored. The respondents are directedto hand over vacant possession of the acquired land to theappellant within a period of eight weeks from today. The parties areleft to bear their own costs.”

In Devendar Kumar Tyagi v. State of U.P. (supra) in paragraphs 12 to 14 held as under:

“ 12. The notification under Section 4 has to be published in themanner laid down therein. As against this, under Section 6, adeclaration has to be first made and that declaration is then to bepublished in the manner provided in Section 6(2) of the LA Act. Also,proviso (ii) to Section 6(1) lays down a time-limit within which thedeclaration has to be made. The said proviso (ii) significantly onlyprovides a time-limit for a declaration and not for publication as it hasbeen incorporated in sub-section (1) of Section 6 of the LA Act.

13. It is not in dispute that the declaration of the Notification underSection 6 was issued on 18-12-2007. It is also not in dispute that theNotification under Section 4 was issued on 3-7-2006 and the samewas published in two daily newspapers in Hindi language on 4-7-2006having circulation in the locality where the land is situated. Also, thepeople at Pargana Hapur in Ghaziabad District are well-conversantwith the Hindi language. In our considered view, the publication of thenotification in two newspapers having circulation in the locality wherethe land is situated and where people are well-conversant with Hindiamounts to ample compliance with the requirement of the publicationunder Section 4(1) of the LA Act. In view of this, the subsequentpublication of English translation of the said Notification under Section4 in two newspapers on 5-1-2007 is unnecessary and will not assistthe respondents to extend the period of limitation envisaged in the proviso to Section 6(1) of the LA Act. Hence, the last date ofpublication for the purpose of Section 4(1) of the LA Act, which canbe treated as the date of publication, is the date on which, the secondNotification under Section 4 was published in the newspaper, that is,4-7-2006. Therefore, the period of limitation commences from 4-7-2006, which is the date of publication of the Notification under Section4(1) of the LA Act.

14. If the declaration under Section 6 of the LA Act is made beforethe expiry of the period of one year starting from 4-7-2006, then, onlysuch declaration will be considered as valid for the purpose of theacquisition of land. However, in the present case, the declarationunder Section 6 was issued on 18-12-2007 which is clearly beyondthe period of limitation of one year as mandated by the proviso toSection 6(1) of the LA Act. Therefore, the declaration of notificationunder Section 6 and its subsequent publications are clearly beyondthe period of limitation of one year starting from the date of publicationof notification under Section 4 of the LA Act.”

In the instant case, the 1[st] respondent issued notification under Section4(1) of the Act on 26.05.2006 and paragraph No.4 of the counter-affidavit filedby respondent Nos. 1 to 3 furnishes information saying that in W.P.No.10900of 2006 filed by the petitioner herein stay was granted on 01.06.2006 and thesame was vacated on 06.01.2006 and in W.P.No.241 of 2007 filed by one SriD.Ch.Joga Rao, stay was granted on 04.01.2007 and the same was vacatedon 01.05.2007 and that it had taken nine (9) months three (3) days forconducting 5-A enquiry. While furnishing the said information, it is contendedby the respondents that in toto, a period of 9 months 5 days is liable to beexcluded and if such exclusion is made, the declaration published on13.06.2008 would be within the period of limitation as prescribed underSection 6 of the Act. The said contention, even though appears to beattractive, cannot be sustained in view of the principles laid down by theHon’ble Supreme Court in the aforesaid judgments and in view of themandatory provisions of Section 6 of the Act. The only period which can beexcluded is the period covered by the stay granted by a Court. Since theAuthorities published 4(1) notification on 24.01.2006, Section 6 declarationought to have been published within one year from the said date i.e. on orbefore 25.05.2007. But the declaration under Section 6, in the instant casewas published on 13.06.2008. The period covered by enquiry under Section 5-A of the Act, by any stretch of imagination is not liable for exclusion in viewof the express provisions of the legislation. Even if the period covered by thestay granted on 24.01.2007 is excluded, the declaration issued by therespondent-Authorities is beyond the statutory period. When the languageemployed under provisions of law is clear and unambiguous, the same shallbe adhered to scrupulously and meticulously and any interpretation whichdefeats and frustrates the same and which would render the provision of lawnugatory is impermissible. Benefit given to the land holder by the legislationcannot be permitted to be taken away by misconstruing the same. Havingregard to the law laid down by the Hon’ble Supreme Court in the aforesaidjudgments and in view of the clear language employed in Section 6 of the Act, this Courtcomes to the conclusion that Section 6 of the Act does not authorize therespondents to deduct the period covered by enquiry under Section 5-A of theAct as such the contention advanced by the respondents herein has no legsto stand.

Conclusion

For the aforesaid reasons and having regard to the principles laid downby the Hon’ble Supreme Court and keeping in view the provisions of thelegislation (Land Acquisition Act), the Writ Petition is allowed, setting asidethe notification issued by the 1[st] respondent issued under Section 4(1) of theLand Acquisition Act vide Roc.No.F5/SW/130/2006 dated 13.05.2006 andthe consequential declaration dated 13.06.2008. However, the respondentsare at liberty to initiate proceedings afresh, if they so desire. No order as tocosts.

Miscellaneous petitions if any, pending in this writ petition shall standclosed.

Date: 31.12.2013pab

_____________

A.V.SESHA SAI,J

[1](2002) 3 SCC 533(2002) 3 SCC 533

[2](2007) 3 SCC 470(2007) 3 SCC 470

[3]2012(12) SCC 443=AIR 1980 Pat 271=2002 (2) BLJR 10002012(12) SCC 443=AIR 1980 Pat 271=2002 (2) BLJR 1000

[4](2011) 9 SCC 164(2011) 9 SCC 164