IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.J.CHELAMESWAR & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON THURSDAY, THE 7TH JULY 2011 / 16TH ASHADHA 1933 WA.No. 2046 of 2007(E) ---------------------- AGAINST THE JUDGEMENT IN WPC.12874/2007 Dated 03/07/2007 .................... APPELLANTS/PETITIONERS: ------------------------------ 1. ANITHA JOSE, W/O.LATE JOSE THOMAS, VADAKKE KALATHIL, SEA VEIW WARD, ALAPPUZHA. 2. PRIYA JOSE, D/O.ANITHA JOSE, VADAKKE KALATHIL, SEA VEIW WARD, ALAPPUZHA. 3. PREETHY JOSE, (MINOR), AGED 16, D/O.ANITHA JOSE, VADAKKE KALATHIL, SEA VEIW WARD, ALAPPUZHA. 4. MARIYA JOSEPH (MINOR), AGED 11, D/O.ANITHA JOSE, VADAKKE KALATHIL, SEA VEIW WARD, ALAPPUZHA. (MINORS REPRESENTED BY THEIR NEXT FRIEND AND MOTHER THE FIRST APPELLANT). BY ADV.SRI.P.B. KRISHNAN SRI.SIVAN MADATHIL RESPONDENTS/RESPONDENTS: ----------------------------------- 1. STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, SHIPPING AND COASTAL INLAND NAVIGATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. LAND ACQUISITION OFFICER, SPECIAL TAHSILDAR (LA) GENERAL, ALAPPUZHA. 3. REVENUE DIVISIONAL OFFICER, ALAPPUZHA. 4. DISTRICT COLLECTOR, ALAPPUZHA. R1 TO R4 BY SENIOR GOVERNMENT PLEADER,SRI.K.R. GANESH THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 07/07/2011, ALONG WITH WA NO. 2076 OF 2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.Chelameswar, C.J. & P.R.Ramachandra Menon, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.A. Nos. 2046 & 2076 OF 2007 - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 7th day of July, 2011 JUDGMENT J.Chelameswar, C.J. These two appeals arise out of a common judgment dated 3rd July 2007 rendered in two writ petitions namely W.P. (C) Nos. 12587 of 2007 and 12874 of 2007. 2. The facts leading to the litigation are as follows: The Government of India decided to acquire certain parcels of land in the State of Kerala for the establishment of Inland Water Transport Terminals at three place called Thanneermukkom North, Mullackal and Thrikkunnappuzha. For the purpose of the fulfillment of the said project, the Government of India entrusted its functions to the Govt. of Kerala, by issuing notification invoking the power under Article 258 of the Constitution of India dated 19th January, 1985. Thereafter, the Govt. of Kerala issued a notification dated 16th December 1987 under Section 4(1) of the Land Acquisition Act,1894, indicating the various parcels of land proposed to be acquired in the three villages mentioned above. W.A. Nos. 2046 and 2076 of 2007 -:2:- 3. In these two appeals, we are concerned with the acquisition, in so far as it pertains to one of the above mentioned three villages, i.e. Mullackal. The appellant in W.A.No.2076 of 2007 is the owner of a small extent of 20 cents of land in Sy.No.26/14/B1, whereas the appellants in W.A. 2046 of 2007 are the legal representatives of the deceased original owner of small extent of 15.125 cents in the same survey number. While issuing notification under Section 4(1) of the Land Acquisition Act, the State of Kerala also invoked the power under Section 17(4) of the Act, thereby dispensing with the enquiry under Section 5A of the Land Acquisition Act. 4. It appears that some third parties, numbering 44, approached this Court by filing O.P.No.4023 of 1998, challenging the above mentioned acquisition of the land in so far as it pertains to the Mullackal village. Initially, this Court, by an order dated 6.4.1998 granted stay of acquisition. It appears that the said O.P. was eventually dismissed as withdrawn on 14.8.2002 and, therefore, the interim order lapsed. However, it may be mentioned that in the interregnum, for a brief period commencing from 1st July 1998 to 24th January, 1999, the above mentioned interim order was not operational - the details of which may not be necessary for W.A. Nos. 2046 and 2076 of 2007 -:3:- the purpose of this judgment. It is during the said period, when the stay was not operational, a notification under Section 6 of the Land Acquisition Act was issued on 16.12.1998, in so far as it pertains to lands of Mullakkal village, which include the lands of the appellants herein. 5. By the same notification, the Government also directed the Collector to take possession of the land covered by the notification on the expiry of 15 days from the date of publication of the notice under sub-section (1) of Section 9 of the Act. Such a direction was issued in exercise of the power under section 17(1) of the Act. 6. Five persons claiming to be the owners of various extents of land covered by the above mentioned declaration under Section 6 of the Act approached this Court by filing O.P.No.7790 of 2003 praying that awards, determining compensation of their lands acquired, be passed expeditiously and payment of compensation be made. The said O.P. came to be disposed of by this Court on 05.08.2003, allowing the said O.P., directing the respondents to pass final award determining compensation and to disburse the compensation within a period of three months from the date of receipt of a copy of the judgment. W.A. Nos. 2046 and 2076 of 2007 -:4:- 7. Strangely, the State of Kerala carried the matter in appeal to the Supreme Court (Civil Appeal No.2824 of 2005). During the pendency of the above mentioned appeal, it appears that the Supreme court stayed the operation of the order passed by the High Court in O.P.7790 of 2003 by an interim order dated 03.12.2003. The above mentioned appeal eventually came to be dismissed by the Supreme court on 21.04.2005 with certain directions, the details of which will be referred to in the judgment later. 8. We must at this stage place on record, that it is not very clear from either the judgment or from the records made available to us as to what is exactly the legal grievance of the State of Kerala in carrying the matter to the Supreme court. From the judgment of the Supreme Court, it appears that the State of Kerala wanted to withdraw from the acquisition of land at 'Mullackal' and wanted to acquire land at a different place called 'Pallathuruthy'. The relevant portion is extracted below: “In this appeal, the State Government of Kerala, seeks to withdraw from acquisition of land at Mullakkal in Alappuzha town in order to acquire land at Pallathuruthy. The question is - can it do so?”. W.A. Nos. 2046 and 2076 of 2007 -:5:- 9. Acquisition proceedings are initiated by the Government of India for the purpose connected with the affairs of the Union of India, as seen from the recitals of the Notification under section 4(1) referred to earlier. We fail to understand how the State could take a decision to alter the proposal. If the State had any objection for the acquisition of the properties in question in these appeals, the State could have settled the matter by proper discussion with the Government of India or at least made the Government of India a party to the above mentioned appeal before the Supreme Court. All that we can say at this stage is that the Government of India is not a party before the Supreme Court. However, that confusion may not detain us. 10. The Supreme Court while dismissing the said appeal directed as follows: “The High Court had directed that the award should be passed within a period of 3 months. By virtue of an order of stay obtained from this Court, the award has not yet been passed. We accordingly extend the time for passing the award by another period of 3 months from today. If any amount has already been deposited by the State Government pursuant to order of this Court, the same together with any accumulated interest thereon is permitted to be withdrawn by the State Government for the purpose of re- depositing the same on account of the compensation to be paid to the landowners of the affected areas in Mullackal.” W.A. Nos. 2046 and 2076 of 2007 -:6:- 11. Subsequently, the awards came to be passed on 4.6.2005 and 19.7.2005 in W.A.Nos.2076 and 2046 of 2007 respectively. In so far as the appellant in W.A.No.2076 of 2007 is concerned, the appellant admittedly sought a reference under Section 18 of the Land Acquisition Act to the Civil Court, dissatisfied with the determination of the compensation made by the award mentioned above. In so far as W.A. No. 2046 of 2007 is concerned, the original owner of the property, one Jose Thomas, it appears, died on 26.6.1998 and the appellants in the said appeal are wife and children (L.Rs) of the said Jose Thomas. 12. The appellants in each of these appeals approached this Court by filing two separate Writ Petitions, in substance, seeking a declaration that the awards mentioned above are illegal and in violation of the mandate contained under Section 11A of the Land Acquisition Act, 1894. By the judgment under appeals, both the writ petitions were dismissed and hence these appeals. 13. The learned counsel for the appellant argued that Section 11A of the Land Acquisition Act was introduced by an amendment in the year 1984 for the benefit of the owners and “parties interested” of the land, whose land is sought to be acquired under the provisions the Land Acquisition Act and W.A. Nos. 2046 and 2076 of 2007 -:7:- therefore, the mandate of Section 11A must be strictly complied with and also the language of the Section is to be strictly construed for the benefit of the owners of the land. It is further argued that the case of the State of Kerala that the period covered during the pendency of the litigation in the Supreme Court is required to be excluded while computing the period of 'two years' mentioned in Section 11A is legally unsustainable, as on the proper construction of Section 11A, such a benefit cannot be extended to the State. Even otherwise, the State cannot take advantage of its own decision to litigate and stall the acquisition proceedings. 14. On the other hand, the learned Government Pleader appearing on behalf of the respondents submitted that Section 11A has no application to those cases, where the appropriate Government invokes the power under Section 17(1) of the Land Acquisition Act. In the alternative, the learned Government Pleader submitted that, irrespective of the answer to the above mentioned submission, the instant appeals and the writ petitions from which these appeals arise are required to be dismissed on the ground of laches; while in the case of W.A.No.2076 of 2007 also on the ground of estoppel in view of the fact that the appellant therein sought a reference under Section 18 of the Land Acquisition Act, W.A. Nos. 2046 and 2076 of 2007 -:8:- dissatisfied with the determination of compensation by the award passed by the Collector. 15. Before we proceed to examine the rival submissions, we deem it appropriate to briefly examine the relevant provisions of the Land Acquisition Act. Section 11A of the Act, in so far as it is relevant for the purpose of these two appeals reads as follows: “11A. 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. xx xx xx 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”. It mandates that an award contemplated under Section 11 of the Act shall be made within a period of two years from the date of publication of the declaration under Section 6 of the Act and if an award is not so made “the entire proceedings of the acquisition of the land shall lapse”. The explanation provides that while computing the period of two years referred to above the period W.A. Nos. 2046 and 2076 of 2007 -:9:- during which any action or proceeding, to be taken in pursuance of the declaration under Section 6 is stayed by an order of a Court, is required to be excluded . 16. Reckoned from the date of the declaration under section 6 of the Act, the awards made in the cases of the appellants herein (which are already noted earlier), are certainly made later two years. The question is whether any part of the said period is required to be excluded in computing the period of two years by invoking the explanation under Section 11A. The other question is whether Sec. 11A is applicable at all to the cases of the appellants, in view of the fact that admittedly, the procedure under Section 17 (1) was invoked. We shall first deal with second of the above mentioned two questions for the reason that if the answer to the second question is in the negative, the other question need not be considered. 17. The learned Government Pleader emphatically submitted that Sec.11A has no application to the appeals, in view of judgment of the Supreme Court reported in AIR 1993 SC 2517 (Satendra Prasad Jain and others vs. State of U.P. and others). It was also a case where the procedure under Section 17 (1) was invoked. Dealing with question whether Sec.11A applies to W.A. Nos. 2046 and 2076 of 2007 -:10:- the said case, the Supreme Court at para 14 held as follows: “14. Ordinarily, the Government can take possession of the land proposed to be acquired only after an award of compensation in respect thereof has been made under Section 11. Upon the taking of possession the land vests in the Government, that is to say, the owner of the land loses to the Government the title to it. This is what Section 16 states. The provisions of Section 11-A are intended to benefit the land owner and ensure that the award is made within a period of two years from the date of the Section 6 declaration. In the ordinary case, therefore, when Government fails to make an award within two years of the declaration under Section 6, the land has still not vested in the Government and its title remains with the owner, the acquisition proceedings are still pending and, by virtue of the provisions of Section 11-A, lapse. When Section 17(1) is applied by reason of urgency, Government takes possession of the land prior to the making of the award under Section 11 and thereupon the owner is divested of the title to the land which is vested in the Government. Section 17(1) states so in unmistakable terms. Clearly, Section 11-A can have no application to cases of acquisition under Section 17 because the lands have already vested in the Government and there is no provision in the said Act by which land statutorily vested in the Government can revert to the owner”. 18. The learned Government Pleader emphasised on the last sentence of the above extracted portion, which says that Section 11-A can have no application to the cases of acquisition where the urgency Clause under Section 17 is invoked, because W.A. Nos. 2046 and 2076 of 2007 -:11:- lands are already vested with the Government. On the other hand, the learned Counsel for the appellant pointed out to the immediate preceding sentence, which states that vesting contemplated under Section 17(1) takes place only after the possession of the property which is the subject matter of acquisition, was taken. Section 17 (1) reads as follows: “17. Special powers in cases of urgency:-(1) In cases of urgency, whenever the appropriate Government, so directs, the Collector, though no such award has been made, may, on the expiration of fifteen days from the publication of the notice mentioned in section 9, sub-section(1), take possession of any land needed for a public purpose. Such land shall thereupon vest absolutely in the Government free from all encumbrances.” 19. It can be seen from the scheme of Sections 16 and 17(1) of the Act that under Section 16 the normal procedure, i.e., where the procedure under Section 17(1) is not invoked, is that the possession of the property can be taken only after an award under Section 11 is made, whereas under Section Sec.17(1) possession of the property which is the subject matter of acquisition can be taken i.e., following the procedure specified therein, i.e. on expiration of 15 days from the date of publication of notice mentioned in Section 9(1) of the Act. W.A. Nos. 2046 and 2076 of 2007 -:12:- “16. Power to take possession:- When the collector has made an award under section 11, he may take possession of the land, which shall thereupon vest absolutely in the Government, free from all encumbrances. ” 20. Section 17 is an exception to the principle contained under Section 16. Therefore, the learned Counsel for the appellant argued that it is not a mere invocation of the procedure under Section 17, which eliminates the application of Section 11-A, but it is the taking of possession pursuant to invocation of the procedure under Section 17(1) which vests the property (which is the subject matter of acquisition), in the State and it is in that context the Supreme Court held that there is no provision in the Act which enables the reversion of the land to the owner once it is vested in the State. The learned Counsel therefore argued that since the possession of the land, which is the subject matter of dispute in these appeals, was taken subsequent to the awards in these cases, the above mentioned decision of the Supreme Court has no application. 21. The learned counsel emphasised on the language of Section 17(1) and more particularly the clause “Such land shall thereupon free from all encumbrances.” We see substantial force W.A. Nos. 2046 and 2076 of 2007 -:13:- in the submission made by the learned counsel for the appellant. Viewed in the light of the decision of the Supreme Court in Government of Tamil Nadu v. Vasantha Bai [1995 Supp (2) SCC 423] which is quoted for approval again in Bailamma v. Poornaprajna House Building Co-op. Society [(2006) 2 SCC 416] where the Supreme Court explained the purpose behind introducing Section 11-A by way of an amendment in the following words: “5. Parliament enacted Section 11-A with a view to prevent inordinate delay being made by the Land Acquisition Officer in making the award. The price to be paid for the land acquired under compulsory acquisition is the prevailing price as on the date of publication of Section 4(1) notification. The delay in making the award deprives the owner of the enjoyment of his property or to deal with the land whose possession has already been taken, and delay in making the award, would subject the owner of the land to untold hardship. With a view to relieve hardship to the owner or person interested in the land and to remedy the lapses on the part of the Land Acquisition Officer in making he award, Section 11-A was enacted which enjoins making of award expeditiously. So, outer limit of two years from the last of the dates of publications, envisaged in Section 6 of the Act was fixed. If he fails to do so, all the acquisition proceedings under the Act would stand lapsed and the owner of the land or person interested in the land is made free to deal with the land as an unencumbered land. Cognizant to the fact that the acquisition W.A. Nos. 2046 and 2076 of 2007 -:14:- proceedings are questioned in a court of law, Parliament enacted Explanation to Section 11-A declaring that the period during which action or proceedings taken in pursuance of the declaration under Section 6 is stayed by an order of the court, the same 'shall be excluded'.” Therefore we are of the opinion that the application of Section 11-A cannot be excluded in the case of the appellants herein. 22. That takes us to the other question, i.e., the first question indicated earlier at paragraph 16 whether the time consumed during the pendency of the Civil Appeal No.2824 of 2005 before the Supreme Court is required to be excluded while computing the period of two years to contemplated under Section 11-A. The learned counsel for the appellant in this regard submitted that it is only in those cases where the award could not be passed within two years computed from the date of the declaration under Section 6 of the Act, because of some interim order passed by a competent court at the instance of the owner of the land, the exclusion of the benefit contemplated under Section 11-A is available but, not in the cases where the proceedings pursuant to Section 6 declaration are stalled at the instance of persons unconnected with the land under acquisition. In support of the said submission, the learned counsel relied upon the following W.A. Nos. 2046 and 2076 of 2007 -:15:- decisions. The first case is Norrmohamed v. State of Gujarat [1992(1) KLT 335]. It was a case where the land acquisition proceedings were challenged before the High Court by the occupant of the land (a person interested as defined under the Act) and during the pendency of the matter in the High Court, there was a stay of only taking of the possession of the land, but not all further proceedings. Therefore, the authorities issued a notice under Section 9(1) of the Act, but did not pass the award within the period of two years from the date of the declaration under Section 6. The case of the appellant before the Supreme Court was that as there was no stay of passing of an award by the High Court, the passing of an award beyond the period of two years from the date of Section 6 notification, is hit by Section 11-A of the Act and the period during which the stay operated against the taking of the possession of the property cannot be excluded for the purpose of the Explanation under Section 11-A of the Act. Repelling the said submission, the Supreme Court at paragraph 8 held as follows: “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 W.A. Nos. 2046 and 2076 of 2007 -:16:- 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.” 23. We are of the opinion that this judgment is not an authority for the proposition that the benefit of Explanation to Section 11-A is available only in those cases where the interim orders stalling the proceedings pursuant to the declaration under Section 6 were obtained at the instance of the land holder or persons interested. The issue before the Supreme Court was to avail the benefit of the explanation to Section 11-A whether the stay granted by the (High) Court should be with reference to all further proceedings pursuant to Section 6 or whether even an order restraining some of the proceedings pursuant to Section 6 also attracts the benefit. On the facts of that case the stay was confined only to the taking of the possession of the property. In spite of that the Supreme Court came to the conclusion that the benefit of Explanation is available to the State. The reference to