IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 08.07.2010 C O R A M THE HONOURABLE Mr.JUSTICE S.NAGAMUTHU Writ Petition No.3975 of 2001 1.C.Subramanian (Died) 2.A.Kannammal 3.S.Loganathan 4.C.Arumugam(Died) 5.Poovathal 6.Angathal 7.B.Santhamani 8.C.Palaniappan 9.S.Supathal 10.C.S.Mani 11.S.Senthil Kumar 12.A.Gopala Krishnan 13.A.Shanmuga Sundaram 14.J.Kalamani ..Petitioners (Petitioners 9 to 14 are substituted as legal representatives of deceased of Petitioners 1 and 4 as per order dated 19.01.2010 in WPMP.987 of 2009) -Vs- 1.The Secretary to Government Housing and Urban Development Department, Fort St.George, Chennai-9. 2.The Special Tahsildar (LA) Housing Scheme Unit No.II Coimbatore ..Respondents Prayer: Petition filed under Article 226 of the Constitution of India praying for issuance of a Writ of Certiorari to call for the records of the 1st respondent in G.O.Ms.No.367, Housing and Urban Development Department, dated 15.03.1991 and the Section 6 declaration issued in G.O.Ms.No.474, Housing and Urban Development Department, dated 28.11.2000 in respect of the petitioner's land in S.No.216/1 of https://hcservices.ecourts.gov.in/hcservices/ Vilankurichi Village, Coimbatore Taluk and quash the same in so far as the same relates to the petitioners' lands are concerned. For petitioners ... Mr.R.Krishnan For respondents ... Mr.S.Sivashanmugam Govt.Advocate O R D E R This writ petition was originally filed by eight (8) persons. The petitioners 1 and 4 viz., C.Subramanian and C.Arumugam died during the pendency of the writ petition. Therefore, their legal representatives, who are petitioners 9 to 14 were subsequently added. This writ petition has been filed challenging the declaration made under Section 6 of the Land Acquisition Act under G.O.Ms.No.474, Housing and Urban Development Department dated 28.11.2000 and the consequential proceedings. 2. The land in question comprised in Survey No.216/1 at Vilankurichi Village, Coimbatore Taluk is owned by the petitioners. With a view to acquire the same for public purpose, a notification was made under Section 4(1) of the Land Acquisition Act (hereinafter called as Act) under G.O.Ms.No.367, Housing and Urban Development Department dated 15.03.1991. The same was published in the Tamil Nadu Government Gazette on 24.04.1991. On 03.05.1991, it was published in a local daily viz., Pirpagal (gpw;gfy;) and in another daily Murasoli (Kubrhyp) on 05.05.1991. The publication in the locality was made on 30.05.1991. The said date viz., 30.05.1991 is crucial for the issues involved in this writ petition. Subsequently, under G.O.Ms.No.2611 dated 25.05.1992, a declaration under Section 6 of the Act was made in respect of the said land. It was published in the Tamil Nadu Government Gazette on 27.05.1992 followed by paper publication and locality publication. The petitioners challenged the said acquisition proceedings by filing a writ petition in W.P.No.11644 of 1992. While admitting the writ petition, this court granted interim stay of the proceedings on 27.08.1992. On 02.12.1999, the writ petition was allowed and the declaration made under Section 6 of the Act was set aside, however, with liberty to the respondents to hold enquiry under Section 5 (A) of the Act and to proceed further in accordance with law. 3. Thereafter, enquiry under Section 5(A) was held on 21.05.2000 and objections from the petitioner was received on 26.05.2000. After completing the said legal formalities, the Government issued a declaration under Section 6 of the Act under G.O.Ms.No.474 dated 28.11.2000. Paper publication of the said declaration was made on 01.12.2000. Immediately thereafter, the petitioners have come up with this writ petition seeking to quash the entire acquisition proceedings. https://hcservices.ecourts.gov.in/hcservices/ 4. As a matter of fact, this writ petition was filed on 21.02.2001. This court granted interim order of stay of dispossession on 01.03.2001. The said order of interim stay was made absolute on 01.09.2003 and as of now the order of stay is still in force. In these circumstances, this writ petition has come up for final hearing today. 5. Among all the other grounds raised in the writ petition, the learned counsel for the petitioners would focus his argument on the main ground that the entire proceedings is liable to be quashed on the ground of limitation as provided in proviso II of Section 6(1) of the Land Acquisition Act, wherein, it is prescribed that no declaration under Section 6 of the Act shall be made in respect of any land covered by a notification under Section 4(1) of the Act after the expiry of one year from the date of the publication of the notification. For this, the learned counsel would submit that publication of 4(1) notification in the locality was made on 30.05.1991 and the said date is crucial for the purpose of calculating the period of limitation. 6. The learned counsel would submit that since the present declaration made under Section 6 of the Act impugned in this writ petition was only made on 28.11.2000, the entire proceedings is liable to be quashed. In order to substantiate his contention, he relied on a judgment of the Constitution Bench of the Supreme Court in PADMASUNDARA RAO AND OTHERS VS STATE OF TAMIL NADU AND OTHERS reported in 2002 (2) CTC 55 followed in VIJAY NARAYAN THATTE AND OTHERS VS STATE OF MAHARASHTRA AND OTHERS reported in (2009) 9 Supreme Court Cases 92. 7. The learned Government Advocate would however, stoutly oppose the writ petition. According to him, though it is true that the crucial date for calculating the period of limitation is 30.05.1991, in this case, 02.12.1999 viz., the date of disposal of W.P.No.11644 of 1992 should be taken as crucial date for the purpose of Section 6 of the Act. 8. The learned Government Advocate would submit that though the notification was published in the locality on 30.05.1991, because there was order of stay granted by this court in the mean while in W.P.11644 of 1992 and since the said writ petition came to be disposed of on 02.12.1999, fresh period of limitation starts from 02.12.1999. Therefore, according to him, it would be suffice if declaration is made within one year from 02.12.1999. In this case, the impugned declaration under Section 6 of the Act was made on 28.11.2000 i.e., within one year from 02.12.1999 and thus, according to him, the impugned declaration is not barred by limitation. Therefore, according to him, the writ petition is liable to be dismissed. https://hcservices.ecourts.gov.in/hcservices/ 9. I have considered the rival submissions and perused the records carefully. 10. The question whether a fresh period of limitation starts from the date of the disposal of the writ petition is no more available for this court to discuss and decide in view of the law laid down by the Constitution Bench of the Supreme Court in Padmasundara Rao's case cited supra. That was the case, wherein also, the declaration made under Section 6 of the Act was challenged and the same was later on set aside by the High Court. In that case, fresh declaration under Section 6 of the Act was made within the period from the date of the order of the High Court in the writ petition. In N.Narasimhaiah and Others Vs. State of Karnataka and Others etc reported in 1996 (3) SCC 88, a three-Judge Bench took a view that fresh period of limitation starts running from the date of the order of the court and therefore, the crucial date was not be the original date of the publication of notification under Section 4(1) of the Act. However, the Constitution Bench did not agree with the said proposition. The Constitution Bench in paragraph 7 of the judgment reported in 2002(2) CTC 55 has held as follows:- " As the factual scenario shows, in the case at hand the Notification under Section 4(1) of the Act was issued and the declaration was made prior to the substitution of the existing proviso to Section 6(1) by Act 68 of 1984 with effect from 24.08.1984. In other words, the Notification under Section 4(1) was issued before the commencement of Land Acquisition (Amendment) Act 1984, but after the commencement of the Land Acquisition (Amendment and Validation) Act 1967 (Act 13 of 1967). But the substituted proviso was in operation on the date of the impugned judgment. In terms of the proviso, the declaration cannot be made under Section 6 in respect of any land covered by the Notification under Section 4(1) of the Act after the expiry of three years or one year from the date of its publication, as the case may be. The proviso deals with two types of situations. It provides for different periods of limitation depending upon the question whether (i) the notification under Section 4(1) was published prior to commencement of Land Acquisition (Amendment and Validation) Ordinance, 1967, but before commencement of Land Acquisiton (Amendment) Act, 1984, or (ii) such notification was issued after Land Acquisition (Amendment) Act, 1984. In the former case, the period is three years whereas in the latter case it is one year. Undoubtedly, the Notification under Sectio 6(1) was made and published in the official gazette within the period of three years prescribed under the proviso thereto, and undisputedly, the same had been quashed by the High Court in an earlier proceedings. It has to be noted that Explanation 1 appended to Section 6(1) provides that in computing the period of https://hcservices.ecourts.gov.in/hcservices/ three years, the period during which any action or proceeding to be taken in pursuance of the Notification under Section 4 (1), is stayed by an order of the Court, shall be excluded. Under Tamil Nadu Act 41 of 1980, w.e.f. 20.01.1967, the expression used is 'action or proceeding..is held up on account of stay or injunction", which is contextually similar. " 11. Thus, the Constitution Bench over-ruled N.Narasimhaiah's case. A reading of the judgment of the Hon'ble Supreme Court in Padmasundara Rao's case would go to show that the period of limitation provided under Section 6 of the Act cannot be extended by Court since as per the Act, the compensation payable to the land owner is on the basis of the market value, which prevailed on the date of the original notification made under Section 4(1) of the Act. For any reason, if the declaration is made under Section 6 of the Act after several years, even then, the land owner would not be entitled for compensation on the basis of the prevailing market value on the date of the declaration made under Section 6 of the Act. Having regard to the escalation of prices of lands and having regard to the legislative intent behind Section 6 of the Act prescribing the period of limitation, the Constitution Bench held that this court cannot read something into the said provision as was done in N.Narasimhaiah's case as the language of Section 6(1) is plain and unambiguous. The Hon'ble Supreme Court proceeded to say that if the view expressed in Narasimhaiah's case is accepted, it would mean that a case can be covered by not only clauses (i) and/or (ii) of the proviso to Section 6(1), but also by non-prescribed period. The Supreme Court ultimately held that the same can never be the legislative intent. 12. In Vijay Narayan Thatte's case, the Hon'ble Supreme Court followed the Constitution Bench judgment in Padma Sundara Rao. Thus, the law has been well settled by the Hon'ble Supreme Court that the crucial date for calculating the period of limitation for the purpose of proviso to Section 6 of the Land Acquisition Act is the date of publication of the notice. In this case, it was made on 30.05.1991. Of course, the period of stay order has to be excluded. The order of stay granted in W.P.11644 of 1992 was on 27.08.1992 and the same was in force till 02.12.1999. The earlier declaration in G.O.Ms.No.2611 was made on 25.05.1992. Thus as on 02.12.1999, the respondent had only 5 days to complete the entire proceedings to make declaration so as to come within the limitation provided under Section 6 of the Act. But in this case, declaration was made only on 28.11.2000. Though, it is within one year from the order of the writ petition in W.P.11644 of 1992, it cannot be said that the said declaration is within the period of limitation since the crucial date is not 02.12.1999, but, it is only 30.05.1991. Thus, the impugned declaration made under Section 6 of the Act is surely beyond the period of limitation and therefore, the same is liable to be quashed. https://hcservices.ecourts.gov.in/hcservices/ 13. The learned Government Advocate would further submit that all the other lands surrounding the land of the petitioners, which are covered in the same land acquisition proceedings have been taken possession and they are now in the possession of Tamil Nadu Housing Board. Therefore, according to him the petitioners cannot make use of the present land. This argument is not available for the respondents to make, because it is for the petitioners to use their land as per their own wish and will. 14. In the result, the writ petition is allowed and the impugned declaration made under Section 6 of the Act and the entire acquisition proceedings are quashed. No costs. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. nvsri To 1.The Secretary to Government Housing and Urban Development Department, Fort St.George, Chennai-9. 2.The Special Tahsildar (LA) Housing Scheme Unit No.II Coimbatore 1 cc To Mr.A.Sivaji, Advocate, SR.48816 1 cc To The Government Pleader, SR.49235 W.P.No.3975 of 2001 KGK (CO) RH (28.7.10) https://hcservices.ecourts.gov.in/hcservices/