AIRCRAFT EMPLOYEES HOUSING COOPERATIVE SOCIETY LIMITED Vs. SECRETARY RURAL DEVELOPMENT AND PANCHAYAT RAI GOVERNMENT OF KARNATAKA BANGALORE

JUDGEMENT

(1.) An interesting question of law has been raised in this case. Notification under Section 4(1) of the Land Acquisition, 1894 (1 of 1894), for (short, the 'Act'), was published in the State Gazette on September 24, 1981 acquiring an extent of 137 acres of land for housing scheme of the appellant. We are concerned with 2 acres 28 guntas of land belonging to the respondents Nos. 3 to 7 in this appeal. The objections under Section 5-A of the Act were filed by the respondents on November 12, 1981. He appeared through counsel on November 21, 1981, and sought further time to file further objections. The matter was posted for November 25, 1981. He filed a memo stating that the additional objections already filed on November 12, 1981, would be treated as on record and sought time for hearing and accordingly the matter was posted for November 30, 1981, on which date the respondent appeared neither in person nor through counsel. The Land Acquisition Officer, therefore, considered, the objection and submitted his report to the Government for consideration by his proceedings dated January 12,1982. The Government after considering the objections and the report and on rejection thereof published the declaration under Section 6(1) in the Gazette on October 28, 1982. Thereafter, the respondents filed Writ Petition No. 43227/82 sometime in October 1982. The High Court directed stay of further proceedings. The High Court in the impunged judgment dated May 27, 1987, held that the enquiry under Section 5-A was vitiated on account of failure to give opportunity of hearing to the respondents on the objections. Since the writ petition came to be filed after the declaration under Section 6 was published. Explanation 1 to S. 6 is not attracted; the Explanation postulates exclusion of the time taken in pursuance of the notification under Section 4(1). Since stay of further proceedings of the declaration under Section 6 was granted, the Explanation 1 to S.6 is inapplicable.

(2.) Shri Nagaraja, learned counsel for the appellant, contended that the view taken by the High Court is not valid in law. The language of the Explanation that period during which any action or proceedings taken in pursuance of the notification under Section 4(1) is stayed by an order of the Court requires to be construed to mean that all steps taken from the stage of issuance of the notification under Section 4(1) should be understood meaningfully. If the Explanation would be construed strictly to mean that after the notification was published but before the declaration under Section 6 was published, the steps taken in pursuance of sub-section (1) of Section 6 only were stayed and were to be excluded, the operational efficiency would be in jeopardy. The stay of the further proceedings, therefore, should include all steps to be taken after the notification under Section 4(1) is published including the declaration under Section 6 which are necessarily to be excluded. Otherwise, an interested person would wait for publication of declaration under Section 6 and then only would impugn the validity of declaration without challenging Section 4(1) and get further proceedings stayed and on expiry of three years even if the writ petition is dismissed or withdrawn, no further steps could be taken since three years from that date stood expired and resultantly notification under Section 4 and declaration under Section 6(1) would stand lapsed. Such an interpretation would not be in the public interest to sustain the acquisition by the Government for public purpose. Shri Juneja, the learned counsel contended that Section 7 of the Act provides clue to the interpretation. Section 7 envisages that whenever any land has been declared under Section 6, as needed for a public purpose, the appropriate Government may authorise some officer on its behalf to take order for the acquisition of the land which would show that the steps are required for issuance of the notice under Section 9 read with Section 10, award enquiry under Section 11 to pass an award thereunder and to take possession of the land under Section 16 only would be stayed. Therefore, the interpretation of Explanation 1 should be understood to mean that during the period of stay taking further steps pursuant to sub section (1) of Section 6 alone would be excluded. If so excluded, only the declaration could be made within three years after the compliance of the mandatory requirement of Section 5-A in this case. Since three years have already elapsed on 24th September, 1994, the notification under Section 4(1) shall stand elapsed by operation of the first proviso to Section 6(1). Even otherwise he contends that the declaration under section 6 was to be published within three years. The Notification under Section 4(1) was admittedly published on September 24, 1981. On September 23, 1984, three years' period had expired. Therefore, the notification under Section 4(1) and declaration under Section 6 shall automatically stand elapsed.

(3.) Therefore, two questions that arise in this case for decision are: (1) whether the interpretation given to the Explanation 1 to Section 6(1) by the High Court is correct in law; and (1) whether the failure to give opportunity of hearing to counsel for the respondent triggers off Section 5-A enquiry With the view to appreciate the contention it is necessary to look into the relevant provisions. Section 4(1) envisages the publication of the notification in the Gazette and also in the locality etc. as required thereunder. An enquiry under Section 5-A shall be conducted unless the power under Section 17(1) is exercised dispensing with the same and possession under Section 17(4) is taken by the Government. In this case, these steps were not taken. Necessarily, therefore, enquiry under Section 5-A had to be conducted. In fact, the notice was served on the owners/interested persons including the father of the respondents who had filed the objections and the case was adjourned on four occasions. On the last occasion, it was adjourned to November 30, 1981, on which date neither respondent nor the counsel was present. Consequently, the enquiry was closed, objections considered and recommendations were made to the Government to take appropriate action. The declaration under Section 6 came to be published on October 6, 1982, after overruling the objections. Thereafter, the writ petition was filed and stay of further proceedings was obtained. Explanation 1 to Section 6 reads as under: