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C. Kamatchi Ammal Vs. Kattabomman Transport Corporation Ltd. and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai High Court
Decided On
Case NumberW.P. No. 796 of 1984
Judge
Reported inAIR1985Mad295
ActsLand Acquisition Act, 1894 - Sections 4, 4(1), 5-A and 6;
AppellantC. Kamatchi Ammal
RespondentKattabomman Transport Corporation Ltd. and ors.
Appellant AdvocateM.R.M. Abdul Kareem, Adv.
Respondent AdvocateA.R. Ramanathan, Adv. and ;J. Kanakaraj, Addl. Govt. Pleader
Cases Referred and Dosabhal Ratansha Keravala v. State of Gujarat
Excerpt:
.....the validity of the declaration and on 3-11-1971, the writ petition was allowed holding that the enquiry proceedings as well as the declaration under s. 4(1) bad as to necessitate the issue of a fresh notification and that it would be open to the government to issue a declaration under s. strong reliance in this connection was placed by the learned additional government pleader on the very decision relied on by the learned counsel for the petitioner. 4(1) of the act was perfectly good and valid. 6(1) was invalid and of no effect, then by its issue the government had not effectively exercised its powers under s. 6(1) and under those circumstances, the government could well issue a fresh declaration under s. thus, far from supporting the case of the petitioner, the decision of the..........of the act was published on 9-3-1977, it was stated that as a result of the striking down of the enquiry proceedings under s. 5-a and the declaration under s. 6(1) of the act, a fresh enquiry had to be conducted and a fresh draft declaration had to be made under s. 6(1) of the act. it was also pointed out that though ordinarily the draft declaration under s. 6(1) has to be published within a period of three years from the date of publication of the notification under s. 4(1) of the act, owing to the grant of stay in i. a. 703 of 1977 in o.s. 62 of 1977, sub court, tuticorin, from 4-4-1978 to 25-4-1979 and in i. a. 991 of 1979 in o. s. 231 of 1979 from 11-1-1980 to 18-10-1980 for a total period of 3 years, 9 months and 28 days, the further proceedings under the act could not be taken up.....
Judgment:
ORDER

1. In this writ petition, the petitioner has challenged the validity of the declaration under S. 6(1) of the Land Acquisition Act 1894 (hereinafter referred to as the Act) in relation to an extent of 85 cents situate in S. F. No. 219-8A in Kovilpatti belonging to the petitioner and published in the Tamil Nadu Government Gazette on 412-1983. The notification under S. 4(1) of the Act was published on 9-3-1972. The acquisition proposed is for the purposes of the construction pf a bus depot for Kattabomman transport ,Corporation Ltd., the first respondent herein. For the purpose of operating buses, the first respondent took on lease the property in question from the petitioner on 1-10-1974 on a rent of Rs. 750 per month, which was later raised to Rs. 1500 with effect from 1-4-1976. Since the property in question was found most suitable for housing the branch depot and workshop of the first respondent, proposals were initiated for the acquisition of the same and after approval of the proposals, the notification under S. 4(1) of the Act was published in the Tamil Nadu Gazette on 9-3-1977. Since a mistake had crept into the said notification, by an order of the Government dated 18-7-1977, an amendment to the notification under S. 4(1) of the Act was also published on 3-8-1977. Though the first respondent was paying the petitioner the increased rent of Rs. IV per month from 1-4-1976, the petitioner was insisting that a lease agreement should be entered into by the first respondent with her for a period of ten years, as, according to her, she had spent a large sums of money in the construction of additional buildings etc. and she would be put to loss in the event of the first respondent vacating the premises earlier. Pursuant to the notification under S. 4(1) of the Act, the enquiry under S. 5A was fixed for 5-7-1977 and finally it was conducted on 1-9-1977, during the course of which the petitioner raised certain

5,8,9 objections, which were, however, overruled and after approving the draft declaration, the declaration under S. 6(1) of the Act was published on 8-2-1978 in the Tamil Nadu Gazette.

2. It is necessary at this stage to refer to certain proceedings initiated by the petitioner before the civil Court with reference to the property proposed to be acquired. O. S. 62 of 1977 was instituted by the petitioner before the Sub-Court, Tuticorin, praying for a decree to direct the first respondent to execute a registered lease deed for a period of ten years from 1-4-1976. In I. A. 703 of 1977 she prayed for an interim injunction restraining the further proceedings under the Act till the disposal of the suit. On 3-4-1979, a temporary injunction was granted to ensure till the disposal of the suit and though an appeal in C. M. A. 344 of 1978 was filed by the first respondent before this court, it was finally dismissed on 8-9-1978, with a direction that the suit should be taken up for trial and disposed of and in accordance with this, the suit was decreed on 25-4-1979, directing the first respondent to execute a lease for ten years from 1-4-1976 and against this decree, the first respondent preferred A. S. 944 of 1979 and though stay of operation of the decree was initially granted in C. M. P. 9996 of 1979, the same was vacated and as a consequence thereof, the first respondent executed a lease deed in favour of the petitioner for a period of ten years from 1-4-1976.

3. Another suit in O. S. 239 of 1979, Sub Court, Tuticorin was also instituted by the petitioner praying for the relief of permanent injunction restraining the further proceedings under the Act. On 11-1-1980, the petitioner obtained a temporary injunction restraining further proceedings under the Act and though an appeal was filed against that order in C. M. A. 36 of 1980 before the District Court, that appeal was dismissed on 27-6-1981, With d direction that the trial of the suit should be taken up and proceeded with. O. S, 239 of 1979, Sub-Court, Tuticorin was thereafter transferred to the District Munsif Court, Kovilpatti, and renumbered as O. S. 138 of 1981 and on 19-10-1982, the suit was decreed holding that the enquiry held under S. 5-A and the declaration under S. 6(1) of the Act were invalid. Subsequently, a fresh enquiry under S. 5-A was held by the Collector on 10-11-1983 and a declaration under S. 6(1) was made on .3-12-1983, which was also published in the Gazette on 4-12-1983.

4. In the affidavit filed in support of the writ petition, the principal ground of attack against the declaration under S. 6(1) of the Act is that the first proviso to S. 6(1) of the Act is violated, in as much as the notification under S. 4(1) of the Act is dated 9-3-1977, while, the declaration under S. 6(1) is dated 3-12-1983, more than three years after the date of the notification under S. 4(1) of the Act. In the counter-affidavit filed by the first respondent, in para 7 thereof, it is stated that as a result of the several proceedings taken by the petitioner and the obtaining of injunction restraining the Government from proceeding further with the acquisition proceedings, further steps could not be taken and that it will not be open to the petitioner to contend that the declaration under S. 6(1) is not in order taking advantage of her own conduct in having delayed the proceedings. In the common counter-affidavit filed by the respondents 2 and 3, after referring to the proceedings initiated by the petitioner before the Civil Court and admitting that the draft notification under S. 4(1) of the Act was published on 9-3-1977, it was stated that as a result of the striking down of the enquiry proceedings under S. 5-A and the declaration under S. 6(1) of the Act, a fresh enquiry had to be conducted and a fresh draft declaration had to be made under S. 6(1) of the Act. It was also pointed out that though ordinarily the draft declaration under S. 6(1) has to be published within a period of three years from the date of publication of the notification under S. 4(1) of the Act, owing to the grant of stay in I. A. 703 of 1977 in O.S. 62 of 1977, Sub Court, Tuticorin, from 4-4-1978 to 25-4-1979 and in I. A. 991 of 1979 in O. S. 231 of 1979 from 11-1-1980 to 18-10-1980 for a total period of 3 years, 9 months and 28 days, the further proceedings under the Act could not be taken up and that after excluding the period during which orders of injunction or stay were In force, the declaration could be published before 8-1-1984, and accordingly it was published on 4-12-1983, well within the time allowed and therefore no exception could be taken to the validity of the notification on the ground that it offends the first proviso to S. 6(1) of the Act.

5. The learned counsel for the petitioner first contended that the explanation to S. 6(1) of the Act introduced by the Land Acquisition Tamil Nadu Amendment Act 1980 (Act 41 of 1980) could not be invoked by the respondent, as on 8-2-1978, a declaration under S. 6(1) of the Act had already been made and thereafter there was no question of the further proceedings or action to be taken pursuant to the notification under S. 4(1) of the Act, having been held up on account of the order of stay or injunction. On the other hand, the learned counsel for respondents 1 to 3, submitted that it would suffice to attract the explanation, if further proceedings pursuant to the notification under S. 4(1) of the Act, had been held up, irrespective of whether a prior declaration under Sec. 6(1) of the Act had been made or not. It was also further pointed out that in this case, the declaration which had already been made under S. 6(1) of the Act was declared to be invalid by the decree granted in favour of the petitioner in O. S. 138 of 1981, District Munsif Court, Kovilpatti, on 18-10-1982, and the effect of that decree was that there was no declaration at all made under Sec. 6(1) of the Act and deducting the time during which orders' of stay or injunction were in force in O. S. 62 of 1977, Sub-Court, Tuticorin and O. S. 138 of 1981, District Munsif court, Kovilpatti, the S. 6(1) declaration made on 3-12-1983 and published on 4-12-1983 was quite in order. The learned counsel for the respondents in this connection, relied upon the decisions of the Supreme Court in State of Gujarat v. Bhogilal Keshavlal, : [1980]2SCR284 and the Full Bench of this court in K. Chinnathambi Gounder v. The Govt. of Tamil Nadu : (1980)2MLJ269 . In answer to this, the learned counsel for the petitioner reiterated that the stay or injunction by an order of Court should have been operative prerenting further proceedings after the publication of the notification under S. 4(1) of the Act and prior to the declaration under S. 6(1) of the Act and such not being the case, the benefit of the explanation cannot be invoked by the respondents.

6. There is no dispute that originally the notification under S. 4(1) of the Act was published on 9-3-1977. Ordinarily, therefore, the declaration under S. 6(1) of the Act should have followed the notification under S. 4(1) of the Act before the expiry of three years from the date of notification under S. 4(1) of the Act. The explanation added to S. 6(1) of the Act, by the Land Acquisition (Tamil Nadu Amendment) Act 1980 (Act 41 of 1980) reads as under :-

'Explanation : In computing the period of three years specified in this proviso, any period during which any action or proceeding to be taken in pursuance of the notification issued under sub-sec. (1) of S. 4 is held up on account of stay or injunction by order of a Court, shall be excluded.'

A careful consideration of the language employed in the explanation indicates that if any further action or proceeding has to be taken after the issue of a notification under S. 4(1) of the Act, and such action or proceeding is in any manner held up on account of an order of stay or injunction, passed by a Court, then, the period during which the proceedings were so held up, can be excluded from the computation of the period of three years. This is without reference to any prior notification already made under S. 6(1) of the Act. The use of the expression 'any period during which any action or proceeding to be taken.... is held up' is significant. The explanation thus generally excludes the time during which any further proceeding or action following the notification under S. 4(1) of the Act could not be taken and would cover even cases where an order of court had remained in force preventing any further action. It is not limited only to cases where there is an order of stay or injunction passed by a Court after S. 4(1) notification but prior to the declaration under S. NO of the Act, Viewed in this manner, It is seen that the petitioner by obtaining orders in I. A, 703 of 1977 in O. S. 62 of 1977 Sub-Court, Tuticorin, had successfully held up the proceedings between 441978 to 25-4-1979 i. e., for a period of be year and 21 days. Similarly, by the orders passed by the Sub-Court, Tuticorin in I. A. 991 of 1979 in O. S. 231 of 1979, prior to the transfer of the suit to the District Munsif court, Kovilpatti, as O. S. 138 of 1981, and even subsequently, for a total. period of 2 years, 9 months and 7 days, further proceedings could not be taken owing to the preventive orders passed by the civil courts. The total period covered by the orders of the Sub-Court has been set out in para 6 of the counter of respondents 2 and 3 as 3 years, 9 months and 28 days, and that has not in any manner been controverted by the petitioner. Further, it has to be remembered that in this case, the district Munsif Court, Kovilpatti, on 19-10-1982, declared as invalid the enquiry proceedings under S. 5-A as well as the declaration under S. 6(1) of the Act. The effect of that adjudication has also to be taken note of and if so done, it is as if there was no S. 6(1) declaration at all after 9-3-1977, owing to the intervention of the proceedings in O. S. 62 of 1977 and O. S. 138 of 1981 for a total period of 3 years, 9 months and 28 days. Calculating the period of three years within which the declaration under S. 6(1) of the Act has to be made after applying the 'explanation and excluding the period of 3 years 9 months and 28 days, it is obvious that the declaration tinder S. NO of the Act could have been made in time before 8-1-1984. In this case, S. NO declaration was made on 3-12-1983, well before that date. Consequently, no exception could be taken to the declaration made under S. 6(1) of the Act in the light of the explanation referred to above and taking into account the period during which the proceedings stood stayed or injuncted as per the orders of court in O. S. 62 of 1977 and O. S. 138 of 1981.

7. It is necessary in this connection to refer to the decision in K. Chinnathambi Gounder v. Govt. Tamil Nadu : (1980)2MLJ269 relied upon by the learned counsel for the first respondent. In that case, the notification under S. 4(1) of the Act was made on 25-6-1969 and this was followed by an enquiry under S. 5-A of the Act on 10-2-1970. A declaration under S, 6(1) of the Act was made on 27-5-1970. Thereupon, the owners of the land filed on 16-8-1970 a writ petition before this court challenging the validity of the declaration and on 3-11-1971, the writ petition was allowed holding that the enquiry proceedings as well as the declaration under S. 6(1) of the Act have to be quashed. 'Thereupon, after service of notice, a fresh enquiry under S. 5-A was held on 2-6-1972 and a declaration was made under S. 6(1) on 26-9-1972, which was published in the Gazette on 11-10-1972. The award enquiry concluded on 16-7-1974. It was thereafter that the owner of the land filed a writ petition contending that as the declaration under Sec. 6(1) had been made beyond- a period of three years, the declaration was out of time. In repelling this contention, the Full Bench pointed out that factually a declaration under S. 6(1) of the Act was made within three years from the date of the notification under S. 4(1) of the Act, and that it is not the requirement that if a declaration is quashed, the subsequent declaration too should be made within three years. Referring to the ratio of the decision of the Supreme Court in Director, Income tax v. Pooran, : [1974]96ITR390(SC) the Fuji Bench stated that even if the period of three years, under S. 6(1) of the Act is made mandatory, that had been complied with by the publication of the notification which was first made on 27-5-1970 and that though the first declaration had been quashed, the facturn of declaration cannot be disputed or affected. In that view, the Full Bench concluded that the making of the first declaration within time cannot be eschewed , and the second declaration alone be treated as the one made for the first time by the Government, as if nothing had happened. Applying this principle to this case, it is seen that on 8-2-1978 the notification under S. 6(1) of the Act had been made and that, as pointed out by the Full Bench, would be sufficient to satisfy the facture of declaration and the subsequent events cannot be considered to have in any manner nullified or effaced the factor of declaration. It is not, as pointed out by the Full Bench, the requirement that the subsequent declaration too should be made within three years. Though the learned counsel for the petitioner submitted that the decision of the Full Bench was rendered prior to the introduction of the explanation to See. 6(1) of the Act, by Tamil Nadu Act 42 of 1980, yet, in my view, that would not make any difference to the applicability of the principle laid down In the Full Bench decision. Having regard to these considerations, the first contention of the learned counsel for the petitioner cannot be accepted.

8. The second and the last contention of the, learned counsel for the petitioner is that Ss. 4, 5-A and 6 of the Act form an integrated scheme and when the enquiry proceedings under S. 5-A and declaration under S. 6(1) of the Act are invalidated by the decree of the Court in 0. S. 138 of 1981, District Munsif Court, Kovilpatti, the prior notification under S. 4(1) of the Act alone cannot survive to enable the authorities to further proceed with the matter and that a fresh notification would be required. Support for this was sought to be drawn from certain observations of the Supreme Court in State of Gujarat v. Bhogilal Keshavlal, : [1980]2SCR284 . The learned Additional Government Pleader submitted that the invalidation of the declaration under S. 6(1) of the Act would not render the notification under S. 4(1) bad as to necessitate the issue of a fresh notification and that it would be open to the Government to issue a declaration under S. 6(1) of the Act, as the Government had the power to do so and the notification under S. 4(1) still survived on the strength of which another declaration under S. 6(1) can be made. Strong reliance in this connection was placed by the learned Additional Government Pleader on the very decision relied on by the learned counsel for the petitioner.

9. In this case, as noticed earlier, the notification under Sec. 4(1) of the Act was published on 9-3-1977 and it is not the case of the petitioner that some invalidity or infirmity, is attached to that notification. In other words, the notification under S. 4(1) of the Act was perfectly good and valid. The enquiry proceedings under S. 5-A of the Act and the declaration under S. 6(1) of the Act were invalidated by the decree in 0. S. 138 of 198 1, District Munsif Court, Kovilpatti. The impact of the decree upon the enquiry proceedings under S. 5-A of the Act and the declaration under S. 6(1) of the Act was different from its effect on the notification under S. 4(1) of the Act. To put it differently, the decree in O. S.138 of 1981 District. Munsif Court, Kovilpatti did not in any manner affect or touch the validity of the notification under S. 4(1) of the Act. The invalidity of the declaration under Sec. 6(1) of the Act had no effect on the validity or operation of the notification already made under S. 4(1) of the Act. It is seen from the decision of the Supreme Court in State of Gujarat v. Bhogilal Keshavlal, : [1980]2SCR284 that the invalidity of the declaration under S. 6 would not in any manner affect the power of the Government to issue a second declaration on the strength of the valid notification under S. 4(1) of the Act. After referring to the decision in State of Madhya Pradesh v. Vishnu Prasad Sharma, : [1966]3SCR557 and State of Gujarat v. Musamiyan Imam Haider Bax Razvi, : AIR1977SC594 and Dosabhal Ratansha Keravala v. State of Gujarat (1970) 11 Guj LR 361, the Supreme Court laid down that If the first declaration issued under S. 6(1) was invalid and of no effect, then by its issue the Government had not effectively exercised its powers under S. 6(1) and under those circumstances, the Government could well issue a fresh declaration under S. 6(1) of the Act. It was also further pointed out that there is no question of exhausting the power to issue a notification under S. 6(1) when once such a declaration is issued, for the purpose had remained unfulfilled owing to the invalidity of the notification and it would therefore be open to fulfill such a purpose by the issue of a valid declaration under S. 6(1) of the Act. Thus, far from supporting the case of the petitioner, the decision of the Supreme Court referred to above clearly lays down that under similar circumstances, as we have in this case, the Government undoubtedly had the power to issue a fresh declaration under S. 6(1) of the Act and that it is unnecessary to start the proceedings afresh with a notification under S. 4(1) of the Act. Thus, the second contention of the learned counsel for the petitioner also fails. No other point was urged. Consequently, the rule nisi is discharged and the writ petition is dismissed. There will be, however, no order as to costs.

10. Writ petition dismissed.


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