AIRCRAFT EMPLOYEES HOUSING CO-OPERATIVE SOCIETY LTD Vs. SECRETARY, RURAL DEVELOPMENT AND PANCBAYAT RAJ, GOVERNMENT OF KARNATAKA, BANGALORE

JUDGEMENT

(1.) An interesting question of law has been raised in this case. Notification under Sec. 4 (1) of the Land Acquisition, 1894 (1 of 1894) , (short the Act') , was published in the State Gazette on Sept. 24th 1981 acquiring an extent of 137 acres of land for housing scheme of the appellant. We are concerned with 2 acres 28 gunthas 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 Nov. 12th. 1981. He appeared through counsel of Nov. 12st 1981, and sought further time to file further objections. The matter was posted for Nov. 25th 1981. He filed a memo stating that the additional objections already filed on Nov. 12th 1981, would be treated as on record and sought time for hearing and accordingly the matter was posted for Nov. 30th 1981, on which date the respondent appeard 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 Jan. 12th 1982. The Government after considering the objections and the report and on rejection thereof published the declaration under Sec. 6 (1) in the I gazette on Oct. 28th 1982. Thereafter, the respondents filed Writ petition No. 43227/82 sometime in Oct. 1982. The High Court directed 2 stay of further proceedings. The High Court in the impugned judgment I dated May 27th 1987, held that the equiry under Sec. 5-A was vitiated on account of failure to give opportunity of hearing to the respondents on the objections. I since the writ petition came to be filed after the declaration under saction 6 was published. Explanation 1 to Sec. 6 not attracted ; the explanation postulates exclusion of the time taken in pursuance of the notification under Sec. 4 (1). Since stay of further proceedings of the declaration under Sec. 6 was granted, the Explanation 1 to Sec. 6 is inapplicable. Therefore, the time taken during the pendency of the proceedings cannot be excluded in computing the period of three years as envisaged in the first proviso to sub-section (1) of Sec. 6 Therefore, the declaration under Sec. 6 and the notification under Sec. 4 have elapsed. Thus, this appeal by special leave. Though the respondents have been served, none is appearing either in person or through counsel. We requested Shri juneja, who is well experienced in this branch of law, to assist as amicus

(2.) Shri Nagareja, 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 Sec. 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 Sec. 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 Sec. 6 was published, the steps taken in pursuance of sub-section (1) of Sec. 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 Sec. 4 (1) is published including the declaration under Sec. 6 which are necessarily to be excluded. Otherwise, an interested person would wait for publication of declaration under Sec. 6 and then only would impugne the validity of declaration without challenging Sec. 4 (1) and get further proceedings stayed and on expiry of three years even if the writ petition is dissmissed or withdrawn, no further steps could be taken since three years from that date stood expired and resultantly notification under Sec. 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 Sec. 7 of the Act provides clue to the interpretation, Sec. 7 envisages that whenever any land has been declared under Sec. 6, as needed for a public purpose, the appropriate Government may authorise some officer on its behalf to take order for the acqisition of the land which would show that the steps are required for issuance of the notice under Sec. 9 read wito Sec. 10 ; award enquiry under Sec. 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 I should be understood to mean thai during the period of stay taking further steps pursuant to sub-section (1) of Sec. 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 Sec. 5-A in this case. Since three years have already elapsed on 24th Sept., 1994, the notification under section 4 (1) shall stand elapsed by operation of the first proviso to Sec. 6 (1) , even otherwise, he contends that the declaration under Sec. 6 was to be published within three years. The notification under Sec. 4 (1) was admittedly published on Sept. 24, 1981. On Sept. 23, 1984, three years' period had expired. Therefore, the notification under Sec. 4 (1) and declaration under Sec. 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 Sec. 6 (1) by the High Court is correct in law ; and (2) whether the failure to give opportunity of hearing to counsel for the respondent triggers of Sec. 5-A enquiry With a view to appreciate the contention it is necessary to look into the relevant provisions. Sec. 4 (1) envisages the publication of the notification in the Gazette and also in the locality etc , as required thereunder. An enquiry under Sec. 5-A shall be conducted unless the power uuder Sec. 17 (1) is exercised dispensing with the same and possession under Sec. 17 (4) is taken by the Government. In this case, these steps were not taken. Necessarily, therefore, enquiry under Sec. 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 Nov. 30, 1981, on which date neither respondent not 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 Oct. 6, 1982, after overruling the objections. Thereafter, the writ petition was filed and stay of further proceedings was obtained. Explanation 6 reads as under :"in computing any of the periods referred to in the first proviso, the period during which any action or proceeding to be taken in pursuance, of the notification issued under Sec. 4, subsection (1) , is stayed by an order of a Court shall be excluded. "