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Judgment
Sections of land acquired under the LA Act of
1894",Date of order/declaration,Days,Interim order
,,,
,,,
Notification under Section 4 and under Section
17(4) of the LA Act of 1894",05.01.2001,,"Order of the High Court dated
24.01.2001 passed in WP(C) 44 (SH)
2001-""in the meantime the respondent
Government shall not give effect to the
notification dated 05.01.2001 and
another notification dated 19.01.2001
until further orders"".
Declaration under Section 6 of the LA Act,19.1.2001.,,
WP(C)No.44 of 2001* dismissed for default-stay
order vacated","Vide order of the High Court
dated 16.12.2006",,"Though the writ petition was dismissed
for default on 06.12.2006 and it was
restored on 23.02.2007, but the stay
order was no restored
WP(C)No.44 of 2001* was restored but interim
order was not restored","Vide order of the High Court
dated 23.02.2007",,
WP(C)No.44 of 2001* was finally dismissed after
hearing","Vide final order of the High Court
dated 13.04.2007",,
WA No.9 of 2007* filed,on 25.04.2007,,"No stay of the Land Acquisition
Proceedings.
WP(C) No. 44 of 2003 [wrongly mentioned as WP(C) No. 44 of 2001] as also in WA No. 9 of 2013 [wrongly mentioned as WA No.9 of,,,
2007], this Court proceeded to hold that the acquisition proceedings lapsed in the year 2008 by virtue of Section 11-A of the Act of 1894",,,
because no award was made by that time. These observations were made essentially with reference to the assumptions that: (i) there was no order,,,
for restoration of the stay order when WP (C) No.44 of 2003 was restored on 23.02.2007; and (ii) there was no stay over the land acquisition,,,
proceedings in WA No. 9 of 2013.,,,
It is thus clear that while passing the impugned order dated 16.12.2015, this Court proceeded on the assumptions that restoration of a petition",,,
by itself does not lead to restoration of stay order therein; and that in a petition questioning the land acquisition proceedings, stay of dispossession",,,
does not arrest the limitation for the purpose of Section 11-A of the Act of 1894. When these assumptions are not countenanced by law and are,,,
removed out of consideration, the very substratum of the impugned order dated 16.12.2015 is lost and in our view, there is no option except to",,,
recall the order impugned and to re-hear the writ petition on merits.,,,
It is not a rule of universal application that whenever a petition is dismissed in default and stay is vacated, restoration of the petition does not",,,
result in restoration of stay order. Nothing is found on record to infer that while restoring the writ petition, Court never intended to continue with",,,
the stay order, which was operating earlier. This apart, the purport and effect of the stay order in WA No.9 of 2013 [Old No.168 of 2007]",,,
appear to have been misconstrued in the order impugned and such an error, going to the root of the matter, cannot be ignored.",,,
It is not in dispute that on 27.04.2007, the Division Bench had passed the interim order in relation to the acquisition proceedings in question",,,
that possession of the appellant therein shall not be disturbed. The operation of this stay order effectively arrested the limitation for the purpose of,,,
Section 11-A of the Act of 1894, as is evident from the plain provisions of the statute as also from the law settled by the Supreme Court. Section",,,
11-A of the Act of 1894 had been as under:-,,,
11-A. Period within which an award shall be made.- (1) The Collector shall make an award under Section 11 within a period of two years",,,
from the date of the publication of the declaration and if no award is made within that period, the entire proceedings for the acquisition of the",,,
land shall lapse:,,,
Provided that in a case where the said declaration has been published before the commencement of the Land Acquisition (Amendment) Act,",,,
1984, the award shall be made within a period of two years from such commencement.",,,
Explanation.- In computing the period of two years referred to in this section, the period during which any action or proceeding to be taken",,,
in pursuance of the said declaration is stayed by an Order of a Court shall be excluded.""",,,
When taking of possession forms an integral part of the proceedings relating to land acquisition, any interim stay against the action of taking",,,
possession has to be taken into consideration in terms of the explanation to Section 11-A of the Act of 1894; and the period of such a stay has to,,,
be excluded for the purpose of computing the envisaged period of two years for making the award. The Hon''ble Supreme Court has explained the,,,
wide import and operation of the explanation to Section 11-A in the case of Yusufbhai Noormohmed Nendoliya v. State of Gujarat and another:,,,
AIR 1991 SC 2153 in the following:-,,,
The said Explanation is in the widest possible terms and, in our opinion, there is no warrant for limiting the action or proceedings referred",,,
to in the Explanation to actions or proceedings preceding the making of the award under Section 11 of the said Act. In the first place, as",,,
held by the learned Single Judge himself where the case is covered by Section 17, the possession can be taken before an award is made",,,
and we see no reason why the aforesaid expression in the Explanation should be given a different meaning depending upon whether the case,,,
is covered by Section 17 or otherwise. On the other hand, it appears to us that the Explanation is intended to confer a benefit on a land-",,,
holder whose land is acquired after the declaration under Section 6, is made in cases covered by the Explanation. The benefit is that the",,,
award must be made within a period of two years of the declaration, failing which the acquisition proceedings would lapse and the land",,,
would revert to the land-holder. In order to get the benefit of the said provision what is required, is that the land-holder who seeks the",,,
benefit must not have obtained any order from a Court restraining any action or proceeding in pursuance of the declaration under Section 6,,,
of the said Act so that the Explanation covers only the cases of those land-holders who do not obtain any order from a Court which would,,,
delay or prevent the making of the award or taking possession of the land acquired. In our opinion, the Gujarat High Court was right in",,,
taking a similar view in the impugned judgment.""",,,
(underlining supplied for emphasis),,,
The said position of law has been reiterated by the Hon''ble Supreme Court in several of its subsequent decisions. Suffice it would be to notice,,,
for the present purpose the decision in M. Ramalinga Thevar v. State of T.N. and others : (2000) 4 SCC 322 wherein, the Hon''ble Supreme",,,
Court has summed up the position of law in the following:,,,
Thus, the position is now well settled that even when dispossession alone is stayed by the Court the period during which such stay",,,
operates would stand excluded from the time fixed for passing the award, the expiry of which would render the acquisition proceedings",,,
lapsed. In the light of the said interpretation it is now idle to contend that the Government is debarred from proceeding with the acquisition.,,,
The appeal is accordingly dismissed.""",,,
(underlining supplied for emphasis),,,
Similarly, in the case of Government of T.N. and another v. Vasantha Bai: 1995 Supp (2) SCC 423, the same view has been reiterated by the",,,
Hon''ble Supreme Court as in the case of Yusufbhai Noormohmed Nendoliya.,,,
In the case of Bailamma (Smt) alias Doddabailamma and others v. Poornaprajna House Building Cooperative Society and others: (2006) 2,,,
SCC 416, the Hon''ble Supreme Court has further pointed out that exclusion of the period of operation of stay is not dependent on the fact as to",,,
which party obtained the stay order from the Court, particularly when the order operates in such a manner that the Government is prevented from",,,
granting approval of the award, if so desired. The Hon''ble Supreme Court has, inter alia, pointed out that,-",,,
....The Explanation is in the widest possible terms which do not limit its operation to cases where an order of stay is obtained by a",,,
landowner alone. One can conceive of cases where apart from landowners others may be interested in stalling the land acquisition,,,
proceeding. It is no doubt true that in most of the reported decisions the party that obtained the stay order happened to be the owner of the,,,
land acquired. But that will not lead us to the conclusion that the Explanation applied only to cases where stay had been obtained by the,,,
owners of the land. There may be others who may be interested in obtaining an order of stay being aggrieved by the acquisition proceeding.,,,
It may be that on account of development of that area some persons in the vicinity may be adversely affected, or it may be for any other",,,
reason that persons in the locality are adversely affected by the project for which acquisition is being made. One can imagine many instances,,,
in which a person other than the owner may be interested in defeating the acquisition proceeding. Once an order of stay is obtained and the,,,
Government and the Collector are prevented from taking any further action pursuant to the declaration, they cannot be faulted for the delay,",,,
and therefore, the period during which the order of stay operates must be excluded. In a sense, operation of the order of stay provides a",,,
justification for the delay in taking further steps in the acquisition proceeding for which the authorities are not to blame.""",,,
In view of the plain provisions in Section 11-A of the Act of 1894 and further in view of the principles expounded by the Supreme Court, it",,,
remains beyond the pale of doubt that the period during which stay over dispossession remained in operation i.e., from 27.04.2007 to",,,
10.02.2014, is required to be excluded while computing the period of two years for the purpose of Section 11-A ibid. This exclusion has to be",,,
made irrespective of the fact that such stay order was passed in the writ appeal filed by Smti.Krishna Baruah and not by the present respondent.,,,
Thus, evident it is that the observations and assumptions in the impugned order do not stand in conformity with the plain provisions of Section 11-",,,
A ibid. as also the above mentioned binding decisions of the Hon''ble Supreme Court; and, obviously, the order impugned cannot sustain itself.",,,
For what has been observed hereinabove, we find that the order impugned discloses such errors, which are apparent on the face of record and",,,
the entire matter deserves re-consideration.,,,
We would hasten to observe that even when the matter is posted for reconsideration, all the contentions/objections of the respective parties",,,
shall remain open for consideration including the grounds on which the review application has been framed and on which, we have not expressed",,,
any final opinion in this order.,,,
On perusal of the record, it is also noticed that during consideration of WP (C) No. 155 of 2015, this Court passed two stay orders, one on",,,
15.10.2015 directing status-quo as then existing to be maintained and another on 19.11.2015 against dispossession of the land owners. Having,,,
regard to the circumstances of the case and to avoid any ambiguity, it is just and proper that the said stay orders be also revived, to be operative",,,
until final disposal of the writ petition.,,,
Accordingly and in view of the above, this review application is allowed; the impugned order dated 16.12.2015 is recalled; and WP(C) No.",,,
155 of 2015 is restored for reconsideration on its merits and with the observations foregoing. The stay orders as passed in the writ petition on,,,
15.10.2015 and 19.11.2015 shall stand revived and shall continue to operate until final disposal of the writ petition. As already observed, all the",,,
submissions of the parties shall remain open for consideration in the writ petition; and for that matter, the parties are allowed to file",,,
additional/supplementary affidavits, if so desired.",,,
The writ petition be restored to its original number and be placed for hearing after six weeks, as prayed.",,,
Application Allowed.,,,