Full Judgment Text
:1:
2007:BHC-AS:2609-DB
IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.6827 OF WRIT PETITION NO.6827 OF 2006 WRIT PETITION NO.6827 OF 2006 2006
1.
Sukumar M. Khot
Age 43 years,
Occ : Agriculture,
Residing at :- Kolge,
Tal : Kagal,
District Kolhapur.
2.
Shivaji Bhimrao Patil
Age 45 years,
Occ : Agriculture,
Residing at :- Kolge,
Tal : Kagal,
District Kolhapur.
3.
Shri. Dyandeo Hari Mane
Age 55 years,
Occ : service,
Residing at :- Kolge,
Tal : Kagal,
District Kolhapur.
4.
Shri. Sudhakar Balaso Wani
Age 37 years,
Occ : Agriculture,
Residing at :- Kolge,
Tal : Kagal,
District Kolhapur.
5.
Asharath Vithu Patil
Age 70 years,
Occ : Agriculture,
Residing at :- Kolge,
Tal : Kagal,
District Kolhapur.
6.
Shri. Kerba Hari Mane,
Age 40 years,
Occ : Agriculture,
Residing at :- Kolge,
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Tal : Kagal,
District Kolhapur.
7.
Shri. Rahul Dyandeo Mane,
Age 18 years,
Occ : agriculture,
Age 70 years,
Occ : Agriculture,
Residing at :- Kolge,
Tal : Kagal,
District Kolhapur.
8.
Shri. Baburao Tukaram Mane,
Age 18 years,
Occ : agriculture,
Age 70 years,
Occ : Agriculture,
Residing at :- Kolge,
Tal : Kagal,
District Kolhapur.
9.
Shri. Pandurang Tukaram Mane,
Age 50 years,
Occ : agriculture,
Residing at :- Kolge,
Tal : Kagal,
District Kolhapur.
10.
Shri. Mahadeo Tukaram Mane,
Age 47 years,
Occ : service,
Residing at :- Kolge,
Tal : Kagal,
District Kolhapur.
11.
Shri. Nivrutti Dattu Mane,
Age about 60 years,
Occ : agriculture,
Residing at :- Kolge,
Tal : Kagal,
District Kolhapur.
12.
Shri. Shamrao Dattu Mane,
Age about 55 years,
Occ : agriculture,
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Residing at :- Kolge,
Tal : Kagal,
District Kolhapur.
13.
Shri. Bhimrao Dattu Mane,
Age about 47 years,
Occ : agriculture,
Residing at :- Kolge,
Tal : Kagal,
District Kolhapur.
14.
Shri. Ramu Laxman Ghugare,
Age about 58 years,
Occ : agriculture,
Residing at :- Kolge,
Tal : Kagal,
District Kolhapur.
15.
Shri. Dhondiba Shiva Ghugare,
Age 66 years,
Occ : agriculture,
Residing at :- Kolge,
Tal : Kagal,
District Kolhapur.
16.
Shri. Vilas Sakharam Ghugare,
Age 47 years,
Occ : agriculture,
Residing at :- Kolge,
Tal : Kagal,
District Kolhapur.
17.
Shri. Shamrao Nagoji Sabale,
Age about 70 years,
Occ : Sheti,
Residing at :- Kolge,
Tal : Kagal,
District Kolhapur.
18.
Shri. Rajaram Pandurang Sabale,
Age about 50 years,
Occ : agriculture,
Residing at :- Kolge,
Tal : Kagal,
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District Kolhapur.
19.
Shri. Dyanu Dattu Daware,
Age about 67 years,
Occ agriculture,
Residing at :- Kolge,
Tal : Kagal,District Kolhapur.
20.
Shri. Tumaram Dattu Daware,
Age about 64 years,
Occ : agriculture,
Residing at :- Kolge,
Tal : Kagal,
District Kolhapur.
21.
Shri. Shankar Dattu Daware,
Age about 60 years,
Occ : agriculture,
Residing at :- Kolge,
Tal : Kagal,
District Kolhapur.
22.
Shri. Santosh Shankar Khot,
Age about 25 years,
Occ : service,
Residing at :- Kolge,
Tal : Kagal,
District Kolhapur.
23.
Shri. Dundappa Balaso Wani,
Age about 33 years,
Occ : service,
Residing at :- Kolge,
Tal : Kagal,
District Kolhapur.
24.
Shri. Sanjay Balaso Wani,
Age about 30 years,
Occ : service,
Residing at :- Kolge,
Tal : Kagal,
District Kolhapur.
25.
Parvati Shivling Wani,
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Age about 75 years,
Occ : agriculture,
Residing at :- Kolge,
Tal : Kagal,
District Kolhapur.
26.
Ananda Rau Daware,
Age about 52 years,
Occ : service,
Residing at :- Kolge,
Tal : Kagal,
District Kolhapur.
27.
Shri. Rangrao Rama Patil,
Age about 65 eyars,
Occ : agriculture,
Residing at :- Kolge,
Tal : Kagal,
District Kolhapur.
28.
Shri. Rajaram Shankar Patil,
Age about 45 years,
Occ : agriculture,
Residing at :- Kolge,
Tal : Kagal,
District Kolhapur.
29.
Shri. Pandurang Govind Patil,
Age about 66 years,
Occ : agriculture,
Residing at :- Kolge,
Tal : Kagal,
District Kolhapur.
30.
Shri. Vilas Shankar Patil,
Age about 50 eyars,
Occ : agriculture,
Residing at :- Kolge,
Tal : Kagal,
District Kolhapur.
31.
Smt. Malubai Shrikant Patil,
Age about 48 years, Occ : agriculture,
Residing at :- Kolge,
Tal : Kagal,
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District Kolhapur.
32.
Shri.Bapu Sambhaji Bhosale,
Age about 55 years,
Occ : agriculture,
Residing at :- Kolge,
Tal : Kagal,District Kolhapur.
33.
Shri. Vikas Bapu Bhosale,
Age about 40 years,
Occ : agriculture,
Residing at :- Kolge,
Tal : Kagal,
District Kolhapur.
34.
Shri. Jambuwant Bhau Satpute,
Age about 55 years,
Occ : agriculture,
Residing at :- Kolge,
Tal : Kagal,
District Kolhapur.
35.
Shri. Gundu Raghu Patil,
Age about 67 years,
Occ : agriculture,
Residing at :- Kolge,
Tal : Kagal,
District Kolhapur.
36.
Shri. Bhimrao Laxman Patil,
Age about 70 years,
Occ : agriculture,
Residing at :- Kolge,
Tal : Kagal,
District Kolhapur.
37.
Shri. Namdeo Sakharam Mane,
Age about 65 years, Occ : agriculture,
Residing at :- Kolge,
Tal : Kagal,
District Kolhapur.
38.
Smt. Laxmibai Shankar Patil,
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Age about 75 years,
Occ : agriculture,
Residing at :- Kolge,
Tal : Kagal,
District Kolhapur.
39.
Shri. Vitthal Tukaram Supale,
Age about 26 years,
Occ : agriculture,
Residing at :- Kolge,
Tal : Kagal, District Kolhapur.
40.
Shri. Bhairu Dattu Supale,
Age about 55 years,
Occ : agriculture,
Residing at :- Kolge,
Tal : Kagal,
District Kolhapur.
41.
Shri. Shivaji Dattu Supale,
Age about 45 years,
Occ : agriculture,
Residing at :- Kolge,
Tal : Kagal,
District Kolhapur.
42.
Shri. Sadashiv Dhondiba Supale,
Age about 52 years, Occ : agriculture,
Residing at :- Kolge,
Tal : Kagal,District Kolhapur.
43.
Shri. Dadu Dhondiba Supale,
Age about 48 years,
Occ : agriculture,
Residing at :- Kolge,
Tal : Kagal,
District Kolhapur.
44.
Shri. Baburao Dhondiba Supale,
Age about 45 years,
Occ : agriculture,
Residing at :- Kolge,
Tal : Kagal,
District Kolhapur.
45.
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Shri. Dilip Pandurang Bhosale,
Age about 23 years,
Occ : agriculture,
Residing at :- Kolge,
Tal : Kagal,
District Kolhapur.
46.
Shri. Balaso Rajaram Bhosale,
Age about 35 years,
Occ : agriculture,
Occ : agriculture,
Residing at :- Kolge,
Tal : Kagal, District Kolhapur.
47.
Shri. Nandkumar Rajaram Bhosale,
Age about 32 years,
Occ : agriculture,
Occ : agriculture,
Residing at :- Kolge,
Tal : Kagal,
District Kolhapur.
48.
Shri. Babu Hari Torse,
Age about 42 years,
Occ : agriculture,
Residing at :- Kolge,
Tal : Kagal,
District Kolhapur.
49.
Shri. Ananda Hari Torse,
Age about 40 years,
Occ : agriculture,
Residing at :- Kolge,
Tal : Kagal,
District Kolhapur.
50.
Shri. Maruti Hari Torse,
Age about 65 years,
Occ : agriculture,
Residing at :- Kolge,
Tal : Kagal,
District Kolhapur.
51.
Sharubai Tukaram Torse
Age about 65 years,
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Occ : agriculture,
Residing at :- Kolge,
Tal : Kagal,
District Kolhapur.
52.
Shri. Babu Vithu Kumbhar,
Age about 55 years,
Occ : agriculture,
Residing at :- Kolge,
Tal : Kagal,
District Kolhapur
53.
Shri. Pandurang Tukaram Korane,
Age about 38 years,
Occ : agriculture,
Occ : agriculture,
Residing at :- Kolge,
Tal : Kagal,
District Kolhapur.
54.
Shri. Raghunath Tumaram Korane,
Age about 28 years,
Occ : agriculture,
Occ : agriculture,
Residing at :- Kolge,
Tal : Kagal,
District Kolhapur.
55.
Shri. Maruti Rama Khot
Age about 62 years,
Occ : agriculture,
Residing at :- Kolge,
Tal : Kagal,
District Kolhapur.
56.
Shri. Bhairu Amba Killedar,
Age about 50 years,
Occ : service,
Occ : agriculture,
Residing at :- Kolge,
Tal : Kagal,
District Kolhapur.
57.
Shri. Balu Gopal Kudale,
Age about 52 years,
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Occ : service,
Occ : agriculture,
Residing at :- Kolge,
Tal : Kagal,
District Kolhapur.
58.
Shri. Dyandeo Gopala Kudale,
Age about 48 years,
Occ : agriculture,
Occ : agriculture,
Residing at :- Kolge,
Tal : Kagal, District Kolhapur.
59.
Shri. Pandurang Bhau Khot,
Age about 58 years,
Occ : agriculture,
Residing at :- Kolge,
Tal : Kagal,
District Kolhapur.
60.
Shri. Babu Bhau Khot,
Age about 52 years,
Occ : agriculture,
Residing at :- Kolge,
Tal : Kagal,
District Kolhapur.
61.
Shri. Shahaji Tukaram Khot,
Age about 20 years, Occ : agriculture,
Residing at :- Kolge,
Tal : Kagal,
District Kolhapur.
62.
Shri. Shivaji Tukaram Khot,
Occ : agriculture,
Residing at :- Kolge,
Tal : Kagal,
District Kolhapur.
63.
Shri. Shankar Laxman Khot,
Age about 48 years,
Occ : service,
Occ : agriculture,
Residing at :- Kolge,
Tal : Kagal,
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District Kolhapur.
64.
Shri. Aannaso Dadu Khot,
Age about 40 years,
Occ : agriculture,
Occ : agriculture,
Residing at :- Kolge,
Tal : Kagal,
District Kolhapur.
65.
Hirabai Mahadeo Kumbhar,
Age about 60 years,
Occ : agriculture,
Residing at :- Kolge,
Tal : Kagal,
District Kolhapur.
66.
Shri. Maruti Appa Supale,
Age 60 years,
Occ : agriculture,
Residing at :- Kolge,
Tal : Kagal,
District Kolhapur.
67.
Shri. Pandurang Appa Supale,
Age about 55 years,
Occ : agriculture,
Residing at :- Kolge,
Tal : Kagal,
District Kolhapur.
68.
Shri. Chandrakant Dattatray Potdar
Age about 32 years,
Occ : agriculture,
Residing at :- Kolge,
Tal : Kagal,
District Kolhapur.
69.
Sou. Sugandha Appaso Kumbhar,
Age about 50 years,
Occ : agriculture,
Residing at :- Kolge,
Tal : Kagal,
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District Kolhapur.
70.
Sharabai Bapu Kumbhar,
Age about 45 years,
Occ : agriculture,
Residing at :- Kolge,
Tal : Kagal,
District Kolhapur.
71.
Shri. Shankar Hari More,
Age about 60 years,
Occ : agriculture,
Residing at :- Kolge,
Tal : Kagal,
District Kolhapur.
72.
Shri. Ananda Nana Parale,
Age about 60 years,
Occ : agriculture,
Residing at :- Kolge,
Tal : Kagal,
District Kolhapur.
73.
Shri. Ramchandra Yasaba Narwekar,
Age about 58 years,
Occ : agriculture,
Occ : agriculture,
Residing at :- Kolge,
Tal : Kagal,
District Kolhapur.
74.
Shri. Maruti Rama Khot,
Age about 52 years,
Occ : agriculture,
Residing at :- Kolge,
Tal : Kagal,
District Kolhapur.
Petitioner No.. 5 to
Petitioner No. 74
through Power of Attorney Holder
namely Petitioners No. 1 to 4 herein. PETITIONERS
VERSUS
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1. State of Maharashtra
[Summons to be served on the Learned
Government Pleader appearing for
State of Maharashtra under order XXVII,
Rule 4, of the Code of Civil
Procedure, 1908].
2. The Divisional Commissioner ,
Pune Division,
Pune.
[Summons to be served on the Learned
Government Pleader appearing for
State of Maharashtra under order XXVII,
Rule 4, of the Code of Civil
Procedure, 1908].
3. Sub Division Officer
Karveer Sub Division,
Kolhapur.
[Summons to be served on the Learned
Government Pleader appearing for
State of Maharashtra under order XXVII,
Rule 4, of the Code of Civil
Procedure, 1908].
4.Shri. Sadashivrao Mandlik Kagal
Sahakari Sakhar Karkhana Ltd.,
At Post Sadashivnagar,
Hamidwada,
Tal : Kagal,
District Kolhapur. RESPONDENTS
Mr.A.V.Anturkar with Mr.Sugandh B. Deshmukh for the
Petitioners.
Mr.R.D.Rane, Addl. Government Pleader for
Respondent Nos.1 to 3.
Mr.Y.S.Jahagirdhar, Senior Advocate with Mr.H.V.Kode
with Mr.N.V.Bandiwadekar for Respondent No.4.
CORAM : F.I. REBELLO AND CORAM : F.I. REBELLO AND CORAM : F.I. REBELLO AND
S.J. VAZIFDAR, JJ. S.J. VAZIFDAR, JJ. S.J. VAZIFDAR, JJ.
DATED : 8TH FEBRUARY, 2007 DATED : 8TH FEBRUARY, 2007 DATED : 8TH FEBRUARY, 2007
ORAL JUDGMENT : ORAL JUDGMENT : (Per F.I. Rebello, J.) ORAL JUDGMENT :
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Rule. Heard forthwith.
2. The Petitioners are owners of lands in respect
of which proceedings for acquisition were initiated
under the Land Acquisition Act, 1894 (hereinafter
referred to as the Act).
The Petitioners had earlier moved this Court by
a Writ Petition, being Writ Petition No.6022 of
2005, challenging the declaration made under section
6, dated 23.6.2005 which was published on 22.8.2005.
A learned bench of this Court by an order dated
21.3.2006 set aside the declaration under section 6
of the Land Acquisition Act for the area of 54
hectares and 16.30 ares and remitted the matter to
the land acquisition officer for fresh inquiry in
terms of Section 5-A of the Land Acquisition Act.
3. Pursuant to those directions, a notice was
issued to the Petitioners for an inquiry to be
conducted under section 5A of the Land Acquisition
Act, read with the rules framed by the State of
Maharashtra.
Subsequent to the notice and after giving a
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hearing to the Petitioner, the Appropriate
Government has been pleased to issue a fresh
declaration under section 6 of the Land Acquisition
Act, dated 10.8.2006. The notification recites that
the report of the officer competent to send report
as per section 5(2) has been considered and it is
necessary to acquire lands for the public purpose at
the cost of the Government.
4. We may point out that the notification under
section 4, was issued on 20.9.2004 and the
declaration under Section 6 was made on 23.6.2005,
within the time prescribed by section 6 of the Land
Acquisition Act. The petition was filed on
25.9.2006 and the judgment of this Court came to be
delivered on March 21, 2006. The effect of the
judgment was that the declaration under section 6
was quashed and set aside and the matter was
remitted back to the Collector for completing the
inquiry under section 5A of the Land Acquisition Act
in terms of directions issued in the judgment. The
State Government was directed on receiving the
report of the Collector and his recommendations to
the objections, to take recourse to its powers in
accordance with law.
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5. The Petitioner by the present petition, impugnes
the fresh declaration. Various grounds have been
urged. At the hearing of the petition before us, it
was submitted that it was not open to the
Appropriate Government to have made the declaration,
as the time for making the declaration under section
6 had already expired.
The learned counsel placed reliance on the
judgment of the Apex Court in Padma Sundara Rao Padma Sundara Rao Padma Sundara Rao
(Dead) & Ors. v. State of Tamil Nadu & Ors., (Dead) & Ors. v. State of Tamil Nadu & Ors., (Dead) & Ors. v. State of Tamil Nadu & Ors.,
(2002) 3 Supreme Court Cases, 533 (2002) 3 Supreme Court Cases, 533. There are some (2002) 3 Supreme Court Cases, 533
other contentions which, in our opinion, considering
the order we intend to pass, need not be dealt with.
On the other hand, on behalf of the Respondents,
the learned counsel submitted, placing reliance on a
Full Bench judgment of the Madras High Court in K. K. K.
Chinnathambi Gounder & Anr. v. Government of Tamil Chinnathambi Gounder & Anr. v. Government of Tamil Chinnathambi Gounder & Anr. v. Government of Tamil
Nadu & Anr., AIR 1980, Madras, 251 Nadu & Anr., AIR 1980, Madras, 251 and the judgment Nadu & Anr., AIR 1980, Madras, 251
of the Division Bench of this Court in Anna Shankar Anna Shankar Anna Shankar
Walvekar v. State of Maharashtra & Ors., 1997(1) Walvekar v. State of Maharashtra & Ors., 1997(1) Walvekar v. State of Maharashtra & Ors., 1997(1)
Maharashtra Law Journal, 470 Maharashtra Law Journal, 470, that the prescribed Maharashtra Law Journal, 470
period under section 6 is only in respect of the
first declaration and not in the event subsequent
declarations are made, consequent upon the first
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declaration being quashed. It is therefore
submitted that in the instant case as what is
impugned is the second declaration, the time
prescribed under section 6 would not apply and,
consequently, there is no infirmity or illegality
which can result in the declaration being set
aside.
On behalf of the State, Respondents, it is
submitted that they have only complied with the
orders of this Court. The Petitioner, it is
submitted, ought not to be permitted to raise such a
contention, considering the judgment of this Court.
At least, in the exercise of its Extra Ordinary
Jurisdiction, this Court ought not to interfere with
the declaration issued, and consequently, the
petition be dismissed.
6. We have given our anxious consideration to the
contentions advanced. More so, in the context that
it is this Court which had remitted the matter to
the land acquisition officer, after the quashing the
declaration under section 6 of the Land Acquisition
Act. Whether we should accept the argument canvased
on behalf of the State/Respondents, will be
considered after examining the issue of law arising
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in this petition.
7. For the purpose of discussion, we may reproduce
the relevant portion of section 6 of the Land
Acquisition Act, 1894 :-
"6. Declaration that land is 6. Declaration that land is 6. Declaration that land is
required for a public purpose.- required for a public purpose.-(1) required for a public purpose.-
Subject to the provisions of Pat
VII of this Act, when the
appropriate Government is satisfied
after considering the report, if
any, made under section 5A,
sub-section (2), that any
particular land is needed for a
public purpose, or for a Company, a
declaration shall be made to that
effect under the signature of a
Secretary to such Government or of
some officer duly authorised to
certify its orders, and different
declarations may be made from time
to time in respect of different
parcels of any land covered by the
same notification under section 4,
sub-section (1), irrespective of
whether one report or different
reports has or have been made
(wherever required) under section
5A, sub-section (2);
[Provided that no declaration in
respect of any particular land
covered by a notification under
section 4, sub-section (1),-
(i) published after the
commencement of the Land
Acquisition (Amendment and
Validation) Ordinance, 1967
(1 of 1967) but before the
commencement of the Land
Acquisition (Amendment) Act,
1984 (68 of 1984) shall be
made after the expiry of
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three years from the date of
the publication of the
notification; or
(ii)published after the
commencement of the Land
Acquisition (Amendment) Act
1984, shall be made after
the expiry of one year from
the date of the publication
of the notification:]
[Provided further that] no such
declaration shall be made unless
the compensation to be awarded
for such property is to be paid
by a Company, or wholly or
partly out of public revenues or
some fund controlled or managed
by a local authority.
[Explanation 1.-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
section 4, sub-section (1), is
stayed by an order of a Court shall
be excluded.
Explanation 2.- ..............
...................................
.................................."
We shall first examine, as to whether the time
limit for the declaration under section 6 is only in
so far as the first declaration that is made and not
the subsequent declaration, on the first declaration
being quashed. K. Chinnathambi Gounder & Anr.
(supra), was a proceeding initiated before the
amendment to section 6, by Act 68 of 1984 with
effect from 24.9.1984. Considering the section as
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it stood before this amendment, the learned Full
Bench of the Madras High Court was pleased to hold
that the maxim "actus curiae neminem gravabit" will
apply to the legislative measure contained in the
first proviso to Section 6(1) of the Act
notwithstanding there being no express provision in
the proviso to causes which are delayed by reason of
issuance of a Courts order. This maxim, the Court
held, is founded upon justice and good sense; and
affords a safe and certain guide for the
administration of the law. The Court therefore held
that the time prescribed under section 6, as it then
stood, would not apply to a subsequent declaration,
as on account of the stay order in favour of the
Petitioners, the Government was not a free agent
during that period to set right any mistakes
committed by it.
The Full Bench of the Madras High Court, was
considered by a learned Division Bench of this Court
in Anna Shankar Walvekar (supra) . Here also, the
land was sought to be acquired for the Vadgaon
Agricultural Produce Market Committee. It was
submitted before the learned Division Bench that
section 6 as applicable at the relevant time,
provided that a declaration could not be made after
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the expiry of the time set out therein. Relying on
the judgment in K. Chinnathambi Gounder & Anr.
(supra) , the learned Division Bench noticed that the
second declaration made beyond a period of three
years, could not be held to be invalid and there was
no necessity that a second declaration should be
made within the period of three years from the date
of the notification under Section 4. The Court held
that the first proviso to section 6(1) refers only
to the declaration under section 6 and does not say
that effect to declaration shall be made within
three years. Nor does the section say that in the
event of the declaration being quashed by the Court,
the subsequent declaration should be made within
three years. From the judgment of the learned
Division Bench of this Court, which followed the
judgment of the Full Bench of the Madras High Court,
it would appear, that in so far as the fresh
declaration under section 6, the time prescribed to
make a fresh declaration, will not apply.
8. We will now consider the judgment of the Supreme
Court relied upon on behalf of the Petitioners.
Reliance was placed on the judgment in N. N. N.
Narasimhaiah & Ors. v. State of Karnataka & Ors., Narasimhaiah & Ors. v. State of Karnataka & Ors., Narasimhaiah & Ors. v. State of Karnataka & Ors.,
(1996) 3 Supreme Court Cases, 88 (1996) 3 Supreme Court Cases, 88. The matter had (1996) 3 Supreme Court Cases, 88
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came up in Appeal to the Supreme Court from the
judgment of a Division Bench of the Karnataka High
Court. The learned Division Bench there, had noted
that the declaration under Section 6, published in
the first instance was within the period prescribed
under the proviso to Section 6(1). The learned
Division Bench had held that after the declaration
under Section 6 was quashed in the first instance,
the limitation of one year does not apply. It
further held that the view that the declaration
under section 6 is still required to be published
from the date of the notification under Section 4(1)
is not correct in law. Before the Supreme Court,
reliance was placed on the judgment in Oxford Oxford Oxford
English School v. Govt. of T.N., 1(1995) 5 SCC, English School v. Govt. of T.N., 1(1995) 5 SCC, English School v. Govt. of T.N., 1(1995) 5 SCC,
206 206 and P. Chinnanna v. State of A.P., 2(1994) 5 206 P. Chinnanna v. State of A.P., 2(1994) 5 P. Chinnanna v. State of A.P., 2(1994) 5
SCC, 486 SCC, 486
SCC, 486 to contend that the view of the High Court
is not correct in law.
On behalf of the Respondents, it was contended
that on facts, the notification under section 4(1)
and the declaration under section 6 were published
within the limitation prescribed under the Act. By
an act of the court, if the declaration under
Section 6 of the Act was quashed, giving power to
the Government to conduct an enquiry under Section
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5-A, after giving opportunity to the claimants,
declaration under Section 6 can never be made within
the original period of limitation and public purpose
would be in jeopardy since, under no circumstance,
the enquiry and declaration under Section 6 could be
done within the limitation prescribed in the first
instance and second exercise will be rendered
fruitless since by that the limitation prescribed
under the proviso would stand expired. The Apex
Court posed to itself a question, whether the
limitation prescribed under the second (sic first)
proviso to Section 6(1) would be applicable after
the notification has been quashed by the High Court?
Considering the scheme of the Act, the Court posed
another question, whether the State is required to
have the declaration published under Section 6
within the limitation prescribed under the proviso
to Section 6(1) of the Act ?
After considering the judgments in
Oxford
English School v. Govt. of T.N., (supra) and
P.
Chinnanna (supra), the Court answered the issue as
under :
"Thus, we hold that the limitation
prescribed in clause (ii) of the
first proviso to sub-section (1) of
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Section 6 would apply to
publication of declaration under
Section 6(1) afresh. If it is
published within one year from the
date of the receipt of the order of
the court by Land Acquisition
Officer, declaration published
under Section 6(1) would be valid."
Thus, the Supreme Court held that the
declaration must be made within the time prescribed
by Section 6. However, in a case where the
declaration was quashed and the matter has been
remitted by an act of the Court, the period would
start running from the date of the receipt of the
order of the Court by the Land Acquisition Officer.
If such declaration is made within time prescribed
in terms of the proviso, such declaration would be
valid. In other words, the Court did not accept the
law as laid down by the Full Bench of the Madras
High Court, that for the second declaration, no time
limit is prescribed. The Court, considering Section
6, held, that a declaration has to be made within
the time prescribed, but in a case where a fresh
declaration has to be made on account of the order
of the Court, then a fresh period would commence
from the date of receipt of the order of the Court
by the Land Acquisition Officer, to make the
declaration in terms of the period prescribed under
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Section 6. The judgment of the Division Bench of
this Court in Anna Shankar Walvekar (supra) stands
overruled.
If the judgment is to be followed and applied
to the facts of this case, it would be clear that
the judgment of this Court is dated March 21, 2006
and that declaration under Section 6 was made on
10.8.2006 and, consequently, it would have been
possible to hold that the declaration was made
within time. The learned counsel however has drawn
our attention to the subsequent judgment of the
Constitution Bench of the Supreme Court in the case
of Padma Sundara Rao (Dead) & Ors. (supra).
9. The Supreme Court in Padma Sundara Rao (supra),
noted the conflict between the decision in N.
Narasimhaiah & Ors. v. State of Karnataka & Ors.
and in an unreported judgment of the Supreme Court
in A.S. Naidu v. State of Tamil Nadu , where a
Bench of three Judges, held that once a declaration
under Section 6 has been quashed, a fresh
declaration under Section 6 cannot be issued, if the
prescribed period for the declaration to be made,
has expired. The judgment in Oxford English School
v. Govt. of T.N. (supra) had also taken a view
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similar as in A.S.Naidu’s case. After reviewing the
law, the Court was pleaded to observe as under :
"While interpreting a provision the
court only interprets the law and
cannot legislate it. If a
provision of law is misused and
subjected to the abuse of process
of law, it is for the legislature
to amend, modify or repeal it, if
deemed necessary. (See Rishabh
Agro Industries Ltd. v. P.N.B.
Capital Services Ltd. ) The
legislative casus omissus cannot be
supplied by judicial interpretative
process. Language of Section 6(1)
is plain and unambiguous. There is
no scope for reading something into
it, as was done in Narasimhaiah
case. In Nanjudaiah case the
period was further stretched to
have the time period run from date
of service of the High Court’s
order. Such a view cannot be
reconciled with the language of
Section 6(1). If the view is
accepted it would mean that a case
can be covered by not only clause
(i) and/or clause (ii) of the
proviso to Section 6(1), but also
by a non-prescribed period. Same
can never be the legislative
intent."
After so holding, the Court held that the view
expressed in Narasimhaiah case (supra) and
Nanjudaiah case (supra) is not correct and was
overruled while that expressed in A.S. Naidu case
and Oxford case was affirmed.
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It would therefore be clear from the judgment
of the Constitution Bench that the period prescribed
by the proviso to section 6 to issue the declaration
under Section 6 cannot be extended either by an act
of the Court.
10. Though there is a judgment of the Constitution
Bench in the field, yet it appears that an attempt
was once again made to re-open the argument
considering the practical difficulties faced in
Fulchand Bhagwandas Gugale & Anr. v. State of
Maharashtra & Ors. , (2005) 1 Supreme Court Cases,
193 . A Bench of two Judges of the Supreme Court
before whom that argument was sought to be contended
was pleased to hold that considering the law laid
down in Padma Sundara Rao (supra) , the prescription
of time-limit in Section 6 is peremptory in nature
and there is no scope for stretching the period
further to have the time period run from the date of
the Supreme Court’s order.
Considering the case laws discussed and the
ratio of the judgment of the Supreme Court in Padma
Sundara Rao (Dead) & Ors. (supra) , as understood in
Fulchand Bhagwandas Gugale & Anr. (supra) , it would
be clear that there the period prescribed for is
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declaration under Section 6 cannot be extended. In
the instant case, considering the facts, the
subsequent declaration pursuant to this Court’s
remitting the matter, is clearly beyond the period
prescribed.
11. Once the law is so declared by the Supreme
Court, will it be open to the Respondents to contend
that though the law has been declared, yet this
Court in the exercise of its Extra Ordinary
Jurisdiction, ought not to grant the relief to the
Petitioner. Unfortunately, the judgment of the
Supreme Court was not brought to the attention of
the Bench when the matter was first argued. Once
the law is declared by the Supreme Court, that law
is binding on this Court under Article 141 of the
Constitution of India. It is not open to this Court
therefore to refuse relief to a Petitioner on the
ground that the Petitioner is trying to take
advantage of the order of this Court. No question
of waiver would arise in the case like the present,
where the issue of law has been declared by the
Supreme Court. It would not be possible,
considering the law declared by the Supreme Court to
refuse relief to the Petitioners.
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12. In the light of the above, Petition would have
to be allowed. Rule is made absolute in terms of
prayer (a).
We make it clear that quashing of the
declaration will not stand in the way of the
Respondents State in issuing a fresh notification
under Section 4, if so advised. That would be
subject to whatever objections the Petitioners may
have.
In the circumstances of the case, there shall
be no order as to costs.
(S.J. VAZIFDAR, J.) (S.J. VAZIFDAR, J.) (F.I. REBELLO, J.) (F.I. REBELLO, J.)
(S.J. VAZIFDAR, J.) (F.I. REBELLO, J.)
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