Full Judgment Text
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 638 OF 2005
STATE OF WEST BENGAL & ORS. .......APPELLANTS
Versus
BIRESWAR DUTTA ESTATE PVT. LTD. &
ORS.
.....RESPONDENTS
O R D E R
Premises No.32A, Brabourne Road, Kolkata, which had
been requisitioned for housing the Headquarters of Traffic
Police Guard in the year 1958 was derequisitioned on
25.3.1992. The possession of the property continued with
the police department and it was proposed to be acquired
and Preliminary Notification dated 28.9.1994 was issued
under Section 4(1) of the Land Acquisition Act, 1894,
('Act' for short). The said acquisition proceedings lapsed
as the final declaration was not issued within one year.
Subsequently another preliminary notification dated
4.3.1996 was issued under section 4(1) of the Act. The said
notification was published in the State Gazette dated
25.3.1996. The notification was published in two
newspapers circulating in the locality on 9.3.1996 and
10.3.1996. As there was a misprint in the date of the
Gazette, an erratum notification was published in the
Calcutta Gazette on 1.4.1997. Public Notice of the
substance of the said notification was published in the
locality on 30.6.1997. The final declaration dated
11.8.1997 under Section 6 of the Act was published in the
Gazette on 12.8.1997.
2. Respondents 1 and 2, who are the owners of property
filed Civil Suit No.235 of 1996 in the Calcutta High Court
against the State of West Bengal on 22.8.1996 seeking
possession of the said property and mesne profits. In the
said Suit, the High Court issued an interim order dated
25.9.1997 directing the parties to maintain status quo as
on that date. Ultimately, the Suit was decreed by a
learned Single Judge of the High Court on 9.9.1998, with a
direction to the defendant in the suit to deliver
possession and declaring the final Notification gazetted
on 12.8.1997, issued under section 6 of the Act to be
invalid. The learned Single Judge held that the final
declaration published on 12.8.1997 was made after the
expiry of one year from the date of publication of the
preliminary notification and therefore it was invalid. The
State filed an appeal against the said judgment and in the
said appeal a Division Bench of the High Court granted
interim stay of the judgment dated 9.9.1998 of the learned
single Judge, on 15.2.1999. Ultimately, the Division Bench
allowed the appeal by judgment dated 29.7.1999 affirming
the finding that appellant was bound to deliver possession,
but however holding that the final declaration published on
12.8.1997 under Section 6 of the Act was valid. The
appellants issued a notice under section 9 and 10 of the
Act on 20.9.1999. The Award was made on 24.2.2000.
Possession of the premises was taken under section 16 of
the Act on 24.2.2003.
3. The acquisition was challenged by respondents 1 and 2
by filing a writ petition (W.P. No.1225 of 2000),
contending that (i) the final notification under section 6
of the Act made more than one year from the date of
publication of the preliminary notification was invalid;
and (ii) the acquisition had lapsed under section 11A of
the Act, as award was no made within two years of
publication of the declaration. A learned Single Judge, by
judgment dated 18.11.2002, dismissed the writ petition.
Respondents 1 and 2 filed an appeal before the appellate
Bench of the Calcutta High Court. The appellate Bench, by
the impugned judgment dated 2.9.2003, allowed the appeal on
the following two grounds: (i) The final declaration under
Section 6 of the Act was invalid, as it was published after
the expiry of one year from the date of publication of the
preliminary notification under Section 4(1) of the Act; and
(ii) The Award dated 24.2.2000 by the Land Acquisition
Officer was passed beyond a period of two years from the
date of the publication of the final declaration dated
11.8.1997 and consequently, the acquisition lapsed.
4. Feeling aggrieved the appellants have filed this
appeal by special leave. The appellants have challenged
both the findings of the Division Bench. Therefore, two
questions arise for our consideration.
(i) Whether the final declaration was made after the
expiry of one year from the date of publication of
preliminary notification?
(ii) Whether the Award was made beyond two years from the
date of the publication of the final declaration?
Re : Question (i)
5. Section 4(1) of the Act provides that whenever it
appears to the appropriate Government that land in any
locality is needed for any public purpose or for a company,
a notification to that effect shall be published in the
Official Gazette and in two daily newspapers circulating in
locality and the Collector shall cause public notice of the
substance of such notification to be given at convenient
places in the said locality, the last of the dates of such
publication and the giving of such public notice, being
referred to as date of the publication of the notification.
In this case the date of publication of the preliminary
notification would be 30.6.1997, as that was the date of
the public notice of the substance of the preliminary
notification given at convenient places in the locality,
and that was the last of the dates of publication and
public notice.
6. In view of the above, though the date of preliminary
notification is 4.3.1996 and was published in the Gazette
on 25.3.1996, as public notice of the substance of the said
notification was given in the locality only on 30.6.1997,
the date of publication of the notification for the
purpose of Section 4(1) of the Act, would be 30.6.1997 -
the date on which the public notice was given in the
locality. Final declaration was made on 12.8.1997 within
two months from the date of publication of the preliminary
notification. The contention that the final notification
was made beyond one year from the date of publication of
the preliminary notification is therefore, without basis.
7. The High Court proceeded on a wrong assumption that
the public notice of the substance of the preliminary
notification should be published in the locality within one
year from the date of publication in the Gazette. We find
that there is no such requirement under Section 4(1) of the
Act. Section 4(1) does not specify the period within which
public notice of the substance of the notification should
be put up in convenient places of the locality. The one
year period referred to in Section 6 of the Act is the
period within which the final declaration has to be made
from the date of publication of the preliminary
notification. Publication of the notification under section
4(1) of the Act is defined as the last of the three dates,
that is (i) publication in the Gazette, (ii) publication in
two newspapers, and (iii) public notice of the substance of
the notification in convenient places in the locality. If
there is a gap of more than one year from the date of
publication of preliminary notification in the Gazette and
issue of public notice of the substance of such
notification in the locality, it would not affect the
validity of the preliminary notification but will only
postpone the date of preliminary notification for other
purposes like determination of market value under section
23 of the Act. As 30.6.1997 is the date of publication of
the preliminary notification and not 4.3.1996, the first
ground on which the appellate Bench of the High Court has
invalidated the acquisition cannot be sustained.
Re : Question (ii)
8. It is not in dispute that the High Court had issued an
order of status quo in regard to the acquisition of land on
25.9.1997 and the said order of status quo came to an end
when the suit itself was decreed on 9.9.1998 in favour of
respondents 1 and 2. If the period between 25.9.1997 and
9.9.1998, during which the order of status quo was in
effect, is excluded, it is seen that the Award dated
24.2.2000 was made within two years from 12.8.1997 - the
date of publication of the final declaration. The total
period that elapsed between date of publication of
declaration and the date of award is 2 years 6 months and
12 days. The order of status quo was in force for a period
of 11 months and 14 days. If that period is deducted, we
find that the Award was made within 1 year 6 months and 28
days.
9. One incidental question that is raised by
respondents 1 and 2 is whether the order of status quo
could be considered to be an interim stay of proceedings to
be taken in pursuance of the declaration, for the purpose
of Section 11A of the Act. In this context we may refer to
the decision of the this Court in M. Ramalinga Thevar Vs.
State of T.N. & Ors., (2000) 4 SCC 322 wherein this Court
held that if there is a stay of dispossession, that would
amount to stay of the declaration. This Court observed :
“As per the Explanation to Section 11-A of the Land
Acquisition Act, 1894 the period of exclusion from the
time is the period during which 'any action or
proceedings' to be taken in pursuance of the said
declaration is stayed. Undoubtedly, one of the
actions contemplated pursuant to the declaration is
taking possession of the land, though such action is a
post-award step in normal circumstances, in emergent
circumstances it can as well be a pre-award step.
Nonetheless, taking possession is one of the actions
to be adopted as a follow-up measure pursuant to the
declaration envisaged in Section 6 of the Act. The
consequence mentioned in Section 11-A is a self-
operating statutory process and, therefore, it can
operate only when the conditions specified
therein conjoin together. The consequence would
step in only when there is fusion of all the
conditions stipulated therein. If there is any
stay regarding any of the actions to be taken
pursuant to the declaration then the consequence
of lapse would not happen.”
10. The validity of the final declaration published
on 12.8.1997 was the subject matter of the civil suit for
possession of the property in question, filed by
respondents 1 and 2. As noticed above, the learned Single
Judge, while decreeing the said suit for possession, held
that the declaration gazetted on 12.8.1997 was invalid. The
appellate bench however upheld the validity of the said
declaration. In such a suit, when the High Court directed
status quo, it meant that respondents 1 and 2 as the
plaintiffs-owners and the State as the defendant, could not
do any act with reference to the property in question.
Apparently in view of the status quo order, the State did
not do any act or make the award in regard to the property
from 25.9.1997 till 9.9.1998, as it was prohibited from
making an award by the status quo order. Thus when there
was an order of status quo, for all purposes, the
appellants were prohibited from taking any further
proceedings in pursuance of the declaration in regard to
the property in question. Therefore, the said period of
status quo will have to be excluded, for calculating the
two years period under Section 11A of the Act. Therefore,
even the second ground on which the High Court found the
acquisition to be invalid cannot be sustained.
11. Consequently, the appeal is allowed, the order dated
2.9.2003 of the Division Bench of the High Court is set
aside and the order dated 18.11.2002 of learned single
Judge dismissing the writ petition of respondents 1 and 2
is upheld.
......................J.
( R.V. RAVEENDRAN )
New Delhi; ......................J.
October 21, 2010. ( H.L. GOKHALE )