Aircraft Employees' Housing Co-operative Society v. the Secretary, Rural Development and Panchayat Raj, Govt. of Karnataka, Bangalore and Ors.

An interesting question of law has been raised in this case. Notifica- tion under Section 4(1) of the Land Acquisition, 1894 (1of1894) (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 appel- D !ant. We are concerned with 2 acres 28 gunthas of land belonging to the respondent 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 E 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 objections and submitted his ·report to the Government for consideration by his proceedings dated f 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 o'ctober 28, 1982. Thereafter, the respondent filed Writ Petition No. 43227/82 sometime in October 1982. The High Court directed stay of further proceedings. The High Court in the impugned G 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 respon­ dents on the objections. Since the writ petition came to be filed after the declaration under Section 6 was published, Explanation 1 to 6 is not attracted; the Explanation postulates exclusion of the time taken in pur­ suance of the notification under Section 4(1). Since stay of further proceed- H A ings of the declaration under Section 6 was granted, the Explanation 1 to 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 Section 6. Therefore, the declaration under Section 6 and the notification under Section 4 have B elapsed. Thus, this appeal by special leave. Though the respondents have been served, none is appearing either in person or through counsel. We requested Sri Juneja, who is well experienced in this branch of law, to assist as amicus. Shri Nagaraja, learned counsel for the appellant, contended that the C 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 under- D stood meaningfully. If the Explanation would be construed strictly to mean that after the no~ification 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 E 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 fu.rther steps could be taken since three years F from that date stood expired and resultantly notification under Section 4 and declaration under Section 6(1) would stand lapsed. Such an interpreta­ tion would not be in the public interest to sustain the acquisition by the Government for public purpose. Shri Juneja, the learned counsel con­ tended that Section 7 of the Act provides clue to the interpretation. Section G 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 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 H be stayed. Therefore, the interpretation of Explanation 1 should be under- AIRCRAFT EMPLOYEES'HSG. CO.OP. SOCYL'ID. ~~SECY. RURAL DEV. AND PAN CHA YAT RAJ 427 stood to mean that during the period of stay taking further steps pursuant A to sub-section (1) of Section 6 alone 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 B be published 'vithin 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. Therefore, t\~ 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 correct in Jaw; and (2) whether the failure to give oppor­ tunity of hearing to the counsel for the respondent triggers off Section 5-A enquiry? With a view to appreciate the contention it is necessary to look into the relevant provisions. Section 4(1) envisages the publication of the D notification in the Gazette and also in the locality etc., as required there­ under. An enquiry under Section 5-A shall be conducted un.less 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 E persons including the father of the respondents who had filed the objec· tions 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, objec­ tions were considered and recommendations were made to the Govern· ment to take appropriate action. The declaration under Section 6 came to be published on October 6, 1982 after overruling the objections. There· after, the writ petition was filed and stay of further proceedings was obtained. Explanation 1 to Section 6 reads as under ; "In computing any of the periods referred to in the first proviso, G the period during which any action or proceeding to be taken in pursuance of the notification issued under Section 4, sub-section (1), is stayed by an order of a Court shall be excluded." If it is read in isolation, as was done by the High Court, it would be obvious that the period during which action or proceedings to be taken in H 428 SUPREME COURT REPORTS [1996) SUPP. 4S.C.R. A pursuance of the notification issued under Section 4 sub-section (1) is stayed by an order of the Court, alone is required to be excluded. Since that stage had passed by at the time of publication of declaration under Section 6(1), the question arises : as to what is the meaning of the words 'in pursuance or under Section 4(1) of the notification? 'In pursuance or would mean under the authority of or by virtue of or in the course of carrying out in accordance with the scheme or plan or direction or order or anything in consequence or conformable to or according to; act of pursuing, carrying out and performance, prosecution; the scheme of the Act envisages that after the notification under Section 4(1) was published, the owner/interested person is entitled to a notice, after compliance of the requirements under sub-section (1) of Section 4. Thereafter owner/person interested is entitled to file his objections. In this ca~, admittedly, objec- tions were filed on November 30, 1981 when neither the counsel nor the respondent was present at the time of hearing. After the objections were consideration and obviously rejected, declaration under Section 6(1) came to be made an published. The writ petition was filed and further steps were D stayed. Consequently, the notice under Section 9 and 10 and award and further steps were stayed. The question is : what is the meaning to be given to the words 'in pursuance of? In our considered view, these \Vords would be read widely to give effect to the steps to be taken including the enquiry under Section 5-A and declaration under Section 6 and further action E thereafter. Otherwise, when a person challenges the notification under Section 4(1) but pending challenge if the proceedings ar-e stayed, that period alone shall be excluded by operation of Explanation 1 to Section 6. If a person challenges the declaration, he may file objections to the publication of the declaration in the Gazette under Section 6 and then challenge the declaration for the non-compliance of the requirement under F Section 5-A without going into the validity; he could contend that three years from the date of the publication of the notification under Section 4(1) had elapsed and Explanation 1 is not attracted; it would be unneces­ sary to go into the question and the writ petition may be got dismis,;ed as his object gets achieved. If the High Court disposes of the matter within G two years from the date of publication of the notification under Section 4(1) before the expiry of three years' period, certainly the Government could reconsider the objections filed under Section 5-A and declaration under Section 6 could be published. But when there is a stay of the further proceedings, then necessarily the Government cannot make the declara­ tion. In this case, three years' period was to expire on September 23, 1984 H by which date the High Court had already stayed further proceedings and AIRCRAFfEMPWYEES'HSG. CO.OP.SOCYLID. v. SECY. RURAL DEV.AND PANCHA YATRAJ 429 writ came to be disposed of in 1987 by which date three year's period A already stood expired. If the period of stay was not to be excluded, the Government has no power even to hear the objections and if the objections are untenable and overruled and public purpose was found to be subsisting, the Government could gel the declaration under Section 6(1) published. Considered from this perspective, we are. of the view that the words 'in pursuance of would be widely understood and all steps required as to be taken including the declaration under Section 6 are to be considered as part of the scheme. Accordingly, we hold that there is no impediment in such an interpretation and the restricted interpretation given by the High Court is clearly illegal. The next question is : whether the view taken by the High Court that the enquiry under Section 5-A is vitiated in law, is correct? In our view, the High Court has not correctly interpreted the legal position. It is seen that respondent was given opportunity thrice to file his objections. At his instance the case was posted for hearing on November 30, 1981 on which date neither the respondent nor his counsel was present. Under these D circumstances, the respondent having failed to present himself either in person or through counsel on November 30, 1981, the omission to give a right of hearing to him does not vitiate enquiry under Section 5-A. On the other hand, the respondent denied himself of the opportunity of being heard. Therefore, enquiry under Section 5-A is not vitiated by the error of law. Consequently, the declaration under Section 6 is not vitiated by any E error of law. Shri juneja equally is not correct in contending that even under the unamended Act by operation of the first proviso to section 6(1), the three years' period had expired by November 19, 1994 and therefore, the notification under Section 4(1) stood elapsed. Admittedly, the notifica- tion under Section 4(1) was published on November 24, 1981. The writ petition was filed in 1982 sometime after October, 1982. Therefore, the stay was granted. In the interregnum, the Government disabled to take further steps and, therefore, it cannot be said that though the stay was granted the notification under Section 4(1) stood elapsed for non-publication of the declaration under Section 6 within three years upto September 23, 1994. We place on record our deep appreciation for the valuable assistance G rendered by Shri Juneja. The appeal is accordingly allowed, but, in the circumstances without costs. R.P. Appeal allowed.