B. SHARADAMMA Vs. STATE OF KARNATAKA AND OTHERS

JUDGEMENT

(1.) JUDGMENT V. G. SABHAHIT , J. This writ appeal is filed by the unsuccessful petitioner in W.P. No. 6530/2008, being aggrieved by the order dated 14.07.2009, wherein the learned single Judge of this Court has declined to quash the preliminary and final notifications issued under Sections 4(1) and 6(1) of the Land Acquisition Act (hereinafter referred to as the Act ) dated 20.03.1986 and 04.05.1987 vide Annexures A and B to the writ petition respectively by rejecting the contention of the writ petitioner that the award is passed after a lapse of two years and contrary to the provisions of Section 11 -A of the Act and accordingly, dismissed the writ petition as devoid of merit.

(2.) THE material facts of the case leading up to this appeal are as follows : 2.1 It is averred in the writ petition that the petitioner is the owner of 3 acres of land comprised in Sy. No.19/2 of Kadirenahalli Village, Uttarahalli Hobli, Bangalore South Taluk, (hereinafter called the schedule property ). The schedule property was subject -matter of preliminary notification under Section 4(1) of the Act dated 20.03.1986 published in the Official Gazette on 24.04.1986 followed by final notification under Section 6(1) of the Act dated 04.05.1987 published in the official gazette on 05.05.1987. It is averred that out of 3 Acres of land held by the petitioner in the schedule property, during 1983 itself, a portion of the same had been alienated and the petitioner had retained the remaining land and was running a nursery and there are grown up fruit yielding coconut trees in the said land and the petitioner is depending upon the income from the nursery and income from selling coconut trees. It is further averred that the notifications issued under Sections 4(1) and 6(1) of the Act were challenged in W.P. No.8958/1987 and interim prayer was sought for staying the operation of the notifications issued under Sections 4(1) and 6(1) of the Act challenging the writ petition. However, by order dated 19.06.1987, this Court stayed dispossession of the petitioner from the land in question, which tantamounts to stay of further proceedings and no consequent action could be initiated for passing of the award during the period when the interim order was in force, in view of the decision of the Hon ble Supreme Court in Government of Tamil Nadu v. Vasantha Bai (1995 Supp (2) SCC 423) : (AIR 1995 SC 1778) and Municipal Corporation of Delhi v. Lichho Devi and others (AIR 1997 SC 3474). It is further averred that a notification was issued under Section 48(1) of the Act dated 15.07.1989, withdrawing the schedule property from acquisition. The petitioner has developed the land and has put up structures between 27.07.1989 and 03.10.1989 i.e., during the period, when notification under Section 48(1) was in operation and when there was no acquisition in the eye of law. 2.2 The said notification under Section 48(1) of the Act was challenged by the fourth respondent - M/s. Kanaka Gruha Nirmana Sahakara Sangha Niyamitha (hereinafter referred to as the Society ) in W.A. No.17588/1989 before this Court. In the meanwhile, the writ petition filed by the petitioner challenging the acquisition proceedings in W.P. No.8958/1987 was dismissed by this Court on 14.11.1995. The said order of dismissal of the writ petition was challenged by the petitioner in W.A. No.4596/1995 before the Division Bench of this Court. During pendency of the writ appeal, interim order of stay of dispossession of the petitioner from the land in Sy. No.19/2 was granted on 19.01.1996. After the dismissal of W.P. No.17558/1989, W.A. No.4596/1995 was also dismissed as having become infructuous. However, the said order was recalled by the Division Bench of this Court by order dated 25.06.1997. Thereafter, the Division Bench of this Court by order dated 22.07.1997, allowed the writ appeal No.4596/1995 filed by the petitioner by setting aside the order of the learned single Judge dismissing the writ petition in W.P. No.8958/1987 and quashing the notifications issued under Sections 4(1) and 6(1) of the Act. In view of allowing of the writ appeal, the Division Bench of this Court by order dated 28.07.1997, dismissed the writ petition filed by respondent No.4 in W.P. No.17558/1989 challenging the de -notification of the land, as having become infructuous holding that the notification under Section 48(1) of the Act had become infructuous as acquisition proceedings had been quashed. The petitioner had developed the land between 23.07.1997 to 14.12.1997 by improving nursery and putting up additional construction and was doing poultry and dairy farming activity. 2.3 Respondent No.4 - Society, being aggrieved by the dismissal of W.P. No.17558/1989 and allowing of W.A. No.4596/1995, filed Civil Appeal No.5708/1998 in respect of acquisition proceedings and Civil Appeal No.5707/1998 in respect of de -notification of the land, before the Hon ble Supreme Court. The Apex Court, by order dated 03.10.2002, allowed the appeals and remitted back W.P. No. 17558/1989 for fresh consideration to the Division Bench of this Court. The Division Bench of this Court, after remand, on 01.12.2003, held that since the beneficiary of the acquisition was not heard before de -notification of the land under Section 48(1) of the Act withdrawing the schedule property from acquisition and the notification under Section 48(1) of the Act was set aside with liberty to the State to take appropriate action in accordance with law. It was also observed that it was open to the petitioner to bring all subsequent events and other relevant factors to the notice of the State Government for taking appropriate decision in the matter. Thereafter, the State by order dated 05.02.2004, declined to delete the land in question from the purview of the acquisition. Being aggrieved by the same, the petitioner and others filed W.P. No.6073/2004 and connected petitions. The learned single Judge, by order dated 15.07.2005, allowed the writ petitions and remitted the matter back to the State Government for fresh consideration. Being aggrieved by the said order dated 15.07.2005, W.A. No.3667/2005 and connected appeals were filed by respondent No.4 - Society and the same were allowed by the Division Bench. The special leave petition filed by the petitioner against the judgment passed in W.A. No.3667/2005 was dismissed by the Apex Court by order dated 05.10.2007 confirming the order passed by the Division Bench in W.A. No.3667/2005. 2.4 It is further averred that in view of the provisions of Sections 4(1) and 6(1) of the Act, award has to be passed within two years from the date of final notification and in computing the said period of two years, time during which, acquisition was stayed by any Court has to be taken into account. In the present case, according to the averments made in the petition, no award has yet been passed and time during which the operation of the acquisition was stayed was 5767 days and wherefore, the entire acquisition proceedings are vitiated being contrary to the provisions of Section 11 -A of the Act and the law declared by the Hon ble Supreme Court in 1995 (Supp) SCC 423 : (AIR 1995 SC 1778) and AIR 1997 5C 3474. It is further averred that even if the award passed is valid, in view of the stay of dispossession of the petitioner from the land in question, which has to be construed as stay of further acquisition proceedings, no award could have been passed by the respondents. Therefore, award, if any, passed is void and unenforceable. The Division Bench of this Court in W.A. No.3667/2005, while reversing the order of the learned single Judge, has observed that it is open to the petitioner to agitate the allegation of fraud before the State Government. The present writ petition was filed contending that the award has not been passed within two years from the date of notification under Section 6(1) of the Act as required under Section 11 -A of the Act and wherefore, the acquisition proceedings are vitiated and in view of stay of dispossession of the petitioner from the land in question, which tantamounts to stay of further acquisition proceedings, no action could be taken by the respondents including passing of the award and wherefore, sought for the following reliefs: ' 1. To quash the entire acquisition proceedings initiated under Section 4(1) and 6(1) notification of the Land Acquisition Act, bearing No.LAQ(1)SR17/85 -86 dated, 20.03.1986 and No.RD159 AQB82 dated 04.05.1987, in view of the acquisition proceedings being lapsed on account of there being no award under Section 11 -A of the Land Acquisition Act within a period of 2 years. 2. Consequently, to declare the proceedings that have taken place in pursuance of the notification issued under Section 6(1) of the Land Acquisition Act as illegal, null and void and not valid, as there is no award as required in law and under the Land Acquisition Act.3. To further declare that the acquisition proceedings pertaining to land in Sy. No.19/2 of Kadirenahalli, Uttarahalli Hobli, Bangalore South Taluk, to an extent of 3 -00 acres as having become lapse, illegal and null and void, as there is no award as required under Section 11 -A of the Land Acquisition Act. 4. To pass such other orders as deemed fit to by this Hon ble Court under the circumstances of the case, in the interest of justice and equity.' 2.5. The writ petition was resisted by the respondents. Respondent No.3 - Special Land Acquisition Officer, Bangalore District, filed the statement of objections contending that the prayers sought for in the writ petition cannot be granted as acquisition proceedings have become final. The averments made in the petition that no award has been passed and no award can now be passed since two years have elapsed from the date of final notification even after excluding the period for which acquisition was stayed and award is contrary to the provisions of Section 11 -A of the Act and is vitiated are false. It is averred that the award under Section 11 of the Act in respect of the land in question has been passed by the Special Land Acquisition Officer on 28.08.1988 and the same was approved by the Divisional Commissioner on 20.02.1989 as per the provisions of the Act. It is also averred that the award has been passed well within two years from the date of final notification and the acquisition proceedings have been upheld and the notification issued under Section 48(1) of the Act withdrawing the schedule property from the acquisition proceedings has been set aside by this Court and the Government has subsequently, declined to issue notification under Section 48(1) of the Act, which has been confirmed by this Court and wherefore, the petition is misconceived and is liable to be dismissed. 2.6 Respondent No.4 - Society filed statement of objections denying the averments made in the petition that no award has been passed and acquisition proceedings have been lapsed in view of Section 11 -A of the Act since period of two years is over. It is further averred that the acquisition proceedings have become final. No contention as urged in the present writ petition was taken in the earlier writ petitions, which had been filed by the petitioner herself or in the proceedings to which the petitioner was a party and therefore, the petitioner is estopped from taking the said contentions in the present writ petition regarding the validity of the acquisition proceedings as acquisition proceedings have been upheld and the notification issued under Section 48(1) of the Act, withdrawing the schedule property from the acquisition proceedings was set aside and the State Government has declined to pass fresh orders, which has also become final by the order of this Court. It is further averred that the award under Section 11 of the Act in respect of the land in question has been passed by the Special Land Acquisition Officer on 28.08.1988 and the same was approved by the Divisional Commissioner on 20.02.1989 and the petitioner, after service of notice of award under Section 9 of the Act, had filed a claim statement on 01.06.1987 seeking for enhancement of compensation as per Annexure R2 to the objections statement and she has participated in the said proceedings for determination for compensation before the special Land Acquisition Officer. The petitioner, having participated in the acquisition proceeding subsequent to passing of the interim order, cannot contend that stay of dispossession of the petitioner from the land would amount to stay of further acquisition proceedings. The award has been passed within two years from the date of final notification as final notification is dated 04.05.1987 and award has been passed by the Special Land Acquisition Officer on 28.08.1988 and the same has been approved by the Divisional Commissioner on 20.02.1989 well within two years even without excluding the time spent in the litigation, wherein acquisition proceedings were stayed. Therefore, there is no merit in the contentions urged in the writ petition and the grounds urged in the writ petition are perverse. The petitioner is not entitled to any relief as sought for in the writ petition and the same is liable to be dismissed. 2.7 Rejoinder was filed by the petitioner after filing of the objections statement by respondent No.4 -Society contending that the averments made in the objections statement are false and the alleged award even if passed, is, invalid in the eye of law as according to the Hon ble Supreme Court, stay of dispossession of the petitioner from the land in question means and tantamounts to stay of all further acquisition proceedings. There was no occasion for the petitioner to put forth the contentions urged in the present writ petition in the earlier proceedings, wherein acquisition was challenged and notification under Section 48(1) of the Act was also challenged. Therefore, the petitioner is entitled to the relief sought for in the writ petition. 2.8 The learned single Judge, after considering the contentions of the learned counsel for the parties and scrutinizing the material on record, by order dated 14.07.2009, held that in view of the earlier proceedings referred to in the writ petition itself, acquisition of the schedule property by issuing notifications under Sections 4(1) and 6(1) of the Act have become final and the main contention in the writ petition is that the award is passed in violation of Section 11 -A of the Act, whereas, the material on record shows that the award has been passed by the Special Land Acquisition Officer on 28.08.1988 and the same has been approved by the Divisional Commissioner on 20.02.1989 within two years from the date of the final notification even without considering the period for which the acquisition proceedings were stayed. Therefore, the award is passed well within time. The petitioner has participated in the acquisition proceedings and after she was served with notice of the award, she has made a claim statement seeking for enhancement of compensation and the ratio of the Apex Court in the judgments relied upon by the learned counsel for the petitioner are not helpful to the petitioner as the Apex Court in the said cases has laid down that even where there is stay of dispossession, the said period should also be included for reckoning the period of two years from the date of final notification for the purpose of Section 11 -A of the Act. The petitioner, after service of notice of the award, having participated in the further proceedings by filing a claim statement, could not now contend that stay of dispossession would mean that no further proceeding could be taken and wherefore, the award passed is without jurisdiction. Accordingly, the learned single Judge held that the writ petition is devoid of merit and dismissed the same. Being aggrieved by the said order of the learned single Judge dismissing the writ petition dated 14.07.2009, the writ petitioner has preferred this appeal.

(3.) THE learned senior counsel appearing for the appellant submitted that the acquisition proceedings pertaining to the schedule property are liable to be set aside as no further proceedings could be taken in the acquisition case in view of the stay of dispossession of the petitioner - appellant herein from the land in question granted by this Court as per the decisions of the Hon ble Supreme Court cited in the writ petition itself viz., Government of Tamil Nadu v. Vasantha Bai (1995 Supp (2) SCC 423) and Municipal Corporation of Delhi v. Lichho Devi and others (AIR 1997 SC 3474) as stay of dispossession should be interpreted as stay of further proceedings in the case. The learned senior counsel further submitted that the acquisition proceedings are also vitiated on the ground that under the provisions of Section 7 of the Act, the Collector is required to obtain orders from the State Government for proceeding further with the acquisition subsequent to the final notification, which is mandatory and subsequent ratification by the State will not cure the defect of non -compliance of Section 7 of the Act, as held by the High Court of Bombay in 2009 (111) Bom LR 16 (Harakchand Misirimal Solanki v. The Collector, Land Acquisition, Pune and others). Therefore, the acquisition proceedings are liable to be set aside and the said contention could not be urged in the earlier writ petitions as there was no occasion for contending the said ground in view of de -notification of the land in question issued under Section 48(1) of the Act. The learned senior counsel further submitted that even though the acquisition proceedings have become final, in view of the above said facts and the question of law that is raised in this appeal, the acquisition proceedings are liable to be set aside as sought for in the writ petition and the learned single Judge was not justified in dismissing the writ petition.