1996(2) ALL MR 104
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
A.P. SHAH AND A.S.V. MOORTHY, JJ.
Maruti Ganpat Jadhav & Ors. Vs. State Of Maharashtra & Ors.
Writ Petition No.5530 of 1987
7th February, 1996
Petitioner Counsel: Shri V.M. KANADE
Respondent Counsel: Ms. SEEMA SERNAIK
Land Acquisition Act (1894) S.11A Expln.- Benefit of Explanation - Land acquision - Lapsing of, on failure to make award within time - Explanation enjoins exclusion of entire period during which any action to be taken pursuant to declaration under S.6 is stayed by order of court.
The Explanation is not confined to the stage of making of the award pursuant to section 6 of the notification, but it is widely worded and covers in its sweep the entire period during which any action or proceedings to be taken in pursuance of the declaration under section 6 is stayed by a competent Court. Explanation to section 11A clearly enjoins exclusion of the entire period during which any action or proceedings to be taken pursuant to declaration under section 6 is stayed by an order of the competent Court. The explanation is in the widest possible terms and therefore there is no warrant for limiting the actions or proceedings referred to in the explanation to actions or proceedings the making of the award under section 11 of the Act AIR 1991 SC 2153 Rel. on. [Para 6]
A.P.SHAH, J. : The short question which falls for our consideration in this petition under articles 226 is whether the acquisition proceedings of the petitioners' lands lapsed in view of section 11A of the Land Acquisition Act, 1894 ('the Act', for short).
2. The relevant facts lie within a narrow compass. The petitioners are the owners of gat Nos.69/2 and 95/2 situate at village Hivare, Taluka Junnar, District Pune. The Government of Maharashtra issued notification under section 4 of the Act declaring its intention to acquire an area of 55 ares out of gat Nos.69/2 and 1 hectare and 8 ares out of gat No.95/2 for the purpose of resettlement of persons displaced by Kukadi project in Pune district. After considering the objections raised by the petitioners in enquiry under section 5A of the Act, notification under section 6 was published in the Government gazette on 18th July, 1987. The notification was published in the local news papers some time in October 1987 and the parties have proceeded on the assumption that it was also published in the locality round about that time.
3. The petitioners challenged the notification under section 6 by filing the present petition on November 10, 1987. On the application made by the petitioners for ad-interim reliefs an order came to be passed that possession of the lands shall not be taken until further orders. The said ad-interim a relief which was granted on November 11, 1987 still continues to be operative. In the meanwhile the Special Land Acquisition Officer No.13 appears to have made a report to the District Re-settlement Officer wherein after referring to the pending petition he has opined that the acquisition proceedings are lapsed, since the award has not been declared within two years as provided by section 11A of the Act.
"11A. The Collector shall make an award under section 11 within a period of two years from the date of the publication of the declaration and if no award is made within that period, the entire proceeding for the acquisition of the land shall lapse:
Provided that in a case where the said declaration has been published before the commencement of the Land Acquisition (Amendment) Act, 1984, the award shall be made within a period of two years from such commencement.
Explanation - In computing the period of two years referred to in this section, the period during which any action or proceeding to be taken in pursuance of the said declaration is stayed by an order of a Court shall be excluded."
The aforesaid section undoubtedly provides that if the award is not made within two years from the publication of declaration, the acquisition proceedings shall lapse. However, explanation to the said section says that the period during which any action or proceeding to be taken in pursuance of the declaration is stayed by an order of a court, is liable to be excluded. The question is what is the true scope of explanation.
5. Mr. Kanade, learned counsel appearing for the petitioners strenuously contended that the notification under section 6 of the Act was published in October 1987 and as the award under section 11 was not made by the Collector within the period of two years from the date of publication, the entire proceedings for the acquisition of the land lapsed. With regard to explanation to section 11A, it was submitted by Mr. Kanade that by the said explanation the only period excluded in computing the aforesaid period of two years is the period during which may action or proceedings are taken in pursuance of the said declaration under section 6 upto the stage of section 11, viz., upto the making of the award under section 11 was dayed by an order of the competent court. It was submitted by him that the question of taking possession would arise after making an award under section 11 and merely because a land holder obtained an injunction restraining the acquisition authorities from taking possession that would not serve to exclude any time from the aforesaid period of two years within which the award has to be made, since the authorities are free to pass award under section 11 of the Act.
6. We are unable to accept the contentions raised by Mr. Kanade. On a bare perusal of Section 11A it is seen that the explanation to the said section is not confined to the stage of making of the award pursuant to section 6 of the notification, but it is widely worded and covers in its sweep the entire period during which any action or proceedings to be taken in pursuance of the declaration under section 6 is stayed by a competent Court. Explanation to section 11A clearly enjoins exclusion of the entire period during which any action or proceedings to be taken pursuant to declaration under section 6 is stayed by an order of the competent Court. The explanation is in the widest possible terms and therefore there is no warrant for limiting the actions or proceedings referred to in the explanation to actions or proceedings preceding the making of the award under section 11 of the Act.
7. We may also mention that the point raised by Mr. Kanade is no longer res integra. In almost identical situation in the case of Yusufbhai v. State of Gujarat (A.I.R. 1991 SC 2153) Kania, J. (as he then was), speaking for the Bench observed :
"The explanation is intended to confer a benefit on a landholder whose land is acquired after the declaration under section 6, is made in cases covered by the explanation. The benefit is that the award must be made within a period of two years of the declaration, failing which the acquisition proceedings would lapse and the land would revert to the land-holder. In order to get the benefit of the said provision what is required is that the land-holder who seeks the benefit must not have obtained any order from a Court restraining any action or proceeding in pursuance of the declaration under section 6 so that the explanation covers only the cases of those land-holders who do not obtain any order from a Court which would delay or prevent the making of the award or taking possession of the land acquired."
The Supreme Court expressly over-ruled the decision of Kerala High Court in the case of Babajan Saheb v. State of Kerala (1988 Kerala 280) taking a contrary view.
8. The Supreme Court has reiterated this view in a recent decision in Gandhi Griha Nirman Sahakar Sanstha V. State of Rajasthan (1993 (2) SCC 662). There the Supreme Court was considering the question as to whether the award was made within the limitation of two years under section 60A of the Land Requisition and Acquisition, Rajasthan Urban Improvement Act, 1939. The period of two years was to be computed in terms of section 11A of the Act which was made applicable by amendment of Section 52. The Supreme Court held that the period during which any proceedings pursuant to the declaration for acquisition is stayed by an order or injunction of Court shall be executed in computing the period of two years. Apart from section 11A, it was observed by the Supreme Court that it is a well established principle of judicial procedure that where any proceedings are stayed by an order of a court or by an injunction issued by any Court, that period should be excluded in computing any period of limitation laid down by law. The principle is normally followed unless the context of the statute provides otherwise. In view of this authoritative pronouncement of law by the Supreme Court, we have no hesitation to reject the submission of Mr. Kanade that the acquisition proceedings lapsed under section 11A.
9. Mr. Kanade fairly conceded that the issue of validity of the Maharashtra Resettlement of Project Displaced Persons Act, 1976 is already covered by a decision of this Court in Dhulgonda Dada Patil and other v/s. Special Land Acquisition Officer No.15, Kolhapur, and others (A.I.R. 1989 Bom. 286). The only other contention raised by Mr. Kanade on merits is that there was a prior partition in the family and therefore the slab applied is not correct. There is absolutely no material to prove the partition and therefore the contention of Mr. Kanade cannot be accepted;