Holding

The Supreme Court held that the stay order constitutes a period to be excluded under Explanation I to Section 6 and that a proper Section 5A enquiry was held, rendering the Section 6 notification valid.

Summary

The State of Kerala sought to acquire land under the Land Acquisition Act, 1894. The Kerala High Court quashed the Section 6 notification on two grounds: that it was issued more than one year after the Section 4 notification, and that no Section 5A enquiry had been held before the notification. The State argued that the period between the High Court’s stay order (2 July 1993) and the final consideration of objections (19 January 1994) should be excluded under Explanation I to Section 6, and that a Section 5A enquiry was conducted on 25 August 1993 with counsel hearing. The Supreme Court held that the stay order indeed falls within the exclusion provision, reducing the effective period so that the Section 6 notification dated 20 May 1994 was within the permissible one‑year limit, and that the Section 5A enquiry satisfied the statutory requirement. Consequently, the High Court’s order was set aside and the writ petition dismissed.

Issues considered

Whether the period of stay ordered by the High Court should be excluded while computing the one‑year period for issuance of a Section 6 notification under the Land Acquisition Act, 1894.
Whether a Section 5A enquiry was conducted before the issuance of the Section 6 notification as required by the Act.

Legislation cited

Land Acquisition Act, 1894s. 4(1), s. 5A, s. 6(1)

Subjects

Land acquisitionSection 6 notificationOne‑year periodStay of proceedingsSection 5A enquiryNatural justiceKerala

Judgment

STATE OF KERALA AND ORS. A
v.
ANTONY FERNANDEZ AND ANR.

· FEBRUARY 12, 1998

[S.B. MAJMUDAR AND M. JAGANNADHA RAO, JJ.] B

Land Acquisition Act, 1894 :

S. 4(1) and s. 6(1)-lssuance of mJtification u/s 6(1) after one year of
publication of notification u!s 4(1)-Held, the order of the High Court that C
possession should not be taken till inquiry uls 5A is held and objections are
. considered, would amount to stay offurther proceedings pursuant to s. 4(1)
notification after s.5A inquiry-The period ofstay to be excluded-Therefore,
notification u/s 6(1) issued within the time prescribed.

Sangappa Gurulingappa Sajjan v. State of Karnataka and Ors, (1994)
D
4 SCC 145; Government of T.N and Another v. Vasanta Bai, [1995) Supp
. 2 SCC 432; and Venkataswamappa v. Special Deputy Commissioner
(Revenue), (1997] 9 sec 128, referred to.

S. 5A-Hearing of objections-Opportunity of hearing to person E
objecting to acquisition-Held, full opportunity was given to respondents to
have their say in support of written objections and their counsel was heard.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 796of1998.

From the Judgment and Order dated 27 .11. 96 of the Kerala High Court F
in W.A. No. 1760/96.

P.S. Poti, and Ms. Malini Poduval for the Appellants.

P. Krishoamurthy and M.P. Vinod for the Respondents.

The following Order of the Court was delivered : G
Leave granted.

We have heard learned counsel for the parties finally in this appeal.
A short question in this appeal that arises for consideration is as to H
865
r

866 SUPREME COURT REPORTS [1998] l S.C.R.

A whetl1er the High Court in the impugned judgment was justified in quashing
the notification under Section 6 of tlle Land Acquisition Act (hereinaft_g to
be referred to as 'the Act) on two counts - (i) tllat it was issued beyond one
year from tlle date of publication of Section 4 notification; and (ii) iliat enquiry
under Section 5A of ilie Act was not conducted by the aufuorities before
issuance of Section 6 notification.
B
So far as ilie first contention is concerned, learned senior counsel, Shri
Poti, vehemently contended tl1at ilie said ground is not sustainable on tl1e
facts of iliis case. He submitted tliat Section 4 notification was published on
27th May 1993 while Section 6 notification was gazetted on 08th June 1994.
Therefore, apparently it appeared to be beyond one year from the date of
C publications of Section 4 notification. However, he invited our attention to an
earlier decision in tl1is case of ilie High Court of Kerala in a writ petition
numbered as O.P. No. 8235 of 1993-E. TI1e said writ petition was filed by ilie
present respondents challenging Section 4 notification before tlle High Court
at iliat stage. Their contention was iliat Section 4(1) notification should not
D be followed by Section 6 notification wiiliout giving an opportunity to ilie
respondents to have their say under Section SA of tlle Act. That writ petition
was heard by Justice P.A. Mohammed in tl1e Kerala High Court on 2nd July
1993 and was allowed. Learned Judge noted tl1at ilie writ petitioner, i.e, tl1e
present respondent No. 2 had expressed her readiness to surrender the
remaining portion of the land since she also preferred to have an Industrial
E Training Institute in tlle locality and her claim for exemption of 55 cents of
land just on ilie side of ilie road was required to be enquired into by t11e
District Collector. This contention was accepted by tlle learned Judge by its
judgment dated 02nd July 1993 and in tl1e penultimate paragraph of tlle said
judgment learned judge directed that till final decision is taken in Ext. P.3
F (written objections) ilie writ petitioner shall not be dispossessed from tlle
disputed land. It was further pointed out by Shri Poti, learned senior counsel
appearing for the appellants, that the final decision on the objections was
taken by ilie auiliorities on 19tl1 January 1994 when tlle District collector
forwarded the objections with recommendation to tlle Board of Revenue.
Therefore, the period from 02nd July 1993 when tlle learned Single Judge
G delivered the judgment till at least 18ili January 1994 amounting to almost six
months ought to be excluded under fa.1Jlanation I to Section 6 of ilie Act (or
·--1.,
computing the period of one year for issuance of tl1e Section 6 notification. ·
Accordingly Section 6 notification can be said to be witltln time. E:\-planation
I to Section 6 of ilie Act reads as under :
H "In computing any of tlle periods referred to in tlle first proviso, tlle
STATE i•. ANTONY FERNANDEZ 867
period during which any action or proceeding to be taken in pursuance A
of the notification issued und,er Section 4, sub-section (1), is stayed
by an order of a Court shall be excluded."

On the second point, Slu:i Poti, submits that it is of course true that in
t11e counter before the High Court a general statement was made that objections
under Section SA were considered. But in the present proceedings he has B
produced sufficient material to show that in the enquiry under Section 5A of
the Act after t11e order of the learned Single Judge of the High Court full
opportunity was given to t11e respondents to have their say concerning the
objections and they were heard through their counsel and not only t11at they
had also addressed written representation to the Chief Minister wherein they C
had also admitted that hearing was given to them by the Collector butthey
did not expect any favourable response from the Collector. It was, therefore,
submitted by Shri Poti, that even on that count tlle impugned order is patently
erroneous when it holds tllat no enquiry under Section 5A was conducted
after decision oft.lie High Court in Writ Petition being O.P. No. 8235of1993-
E D
Repelling these cententions, learned senior counsel for the respondents,
Shri Krishnamurthy, submitted that so far as the question of elapsing of one
year after the publication of Section 14 notification is concerned, Explanation
I to Section 6 will not be available to tlle appellant-State of Kerala for tlle
simple reason tllat the period during which action or proceeding which is to E
be taken pursuant to Section 4 notification, had not got intercepted by any
stay or.der of tlle Court. He, however, fairly conceded that stay of possession
would amount to stay as held by a catenate of decisions of this Court but

- his submission is tliat when Section 4(1) notification was challenged before
the High Court in 0.P. No. 8235 of 1993-E, tllere was no occasion for tlle F
Court, while allowing tlle writ petition and directing the authorities to consider
the objections, Ext P.3 under Section SA, to observe tllat tlle writ petitioner
shall not be dispossessed from t11e disputed land as Section 6 notification has
to be issued after considering tlle objections and, tllerefore, there was no
question of dispossessing the writ petitioner till objections are decided. in
tllis connection he submitted that once enquiry under Section SA is to be G
held tllere would be no possibility of dispensing witll such enquiry under tlle
l-- provisions of Section 17(4) and consequently there would be no occasion for
:..,.--.'
dispossessing tlle writ petitioner pursuant to Section 6 notification: If at all
such a threat would arise after Section 6 notification is issued invoking
Section 17(1) oftlle Act such an eventuality had not occurred when 0.P. No. H
868 SUPREME COURT REPORTS [1998) l S.C.R.

A 823S of 1993-E was decided. It was, therefore, contended that the direction
contained in the penultimate paragraph of the judgment of the learned Single
Judge, dated 2nd July 1993 cannot strictly be considered to be any stay of
further proceedings as contemplated by Explanation I to Section 6.

At first blush the said argumi;nt appeared to be having substance. But
B on a closer scrutiny we find that it cannot be sustained. The reason is
obvious. Explanation I to Section 6 is couched in very wide terms. It states
that the period during which any action or proceeding to be taken in pursuance
of the notification issued under Section 4(1) is stayed by an order of a court
that period is to be excluded. It is not disputed that the proceedings under
C Section SA is also pursuant to Section 4(1) notification. Secondly the direction
of the Court is that possession should not be taken till enquiry under Section
SA is held and objections are considered which would amount to stay of
further proceedings pursuant to Section 4 notification after Section SA enquiry.
It was obviously an order of competent court. It has been held by this Court
vide, [1994] 4 SCC 145 Sangappa Gurulingappa Sajjan v. State of Karnataka
D and others, [1995] Supp 2 SCC 423 Government of T.N. and another v.
Vasantha Bai: and, (1997] 9 SCC 128 Venkataswamappa v. Special Deputy
Commissioner (Revenue), that even stay of dispossession granted by the
Court while considering challenge to Section 4(1) notification would amount
to stay as contemplated by Explanation 1 to Section 6. Consequently, it has
E to be held that the period during which there was stay of dispossession, i.e,
from 02nd July 1993 to 18th January 1994 amounting to almost 6 months is
to be excluded and consequently, issuance of Section 6 notification on 20th
May 1994 cannot be said tel be beyond the permissible period as per
Explanation I to Section 6. The first contention raised by Shri Poti, learned
senior counsel for the appellants, therefore, has to be accepted. It is held that
F the High Court had erred in taking the view that Section 6 notification was
beyond the permissible period of one year as contemplated by Section 6. In
view of the aforesaid conclnsion of ours the wider question whether the
period of one year is to be considered in the light of date of Section 6
notification, i.e., 20th May 1994 or its publication in the Gazette on 08th June
1994 would pale into insignificance and it is not necessary for us to consider
G that wider question.
So far as the second point is concerned we find that Slui Poti, learned \
senior counsel for the appellants is equally on a strong footing. It is of course
true that the effort which was made before us to sustain the proceedings
H under Section 5A enquiry, was not made before the High Court and a general

I
STATE v. ANTONY FERNANDEZ 869
statement was made in the counter affidavit filled in the writ petition that as A
per the direction contained in the judgment of the High Court the appellant
authorities considered the objections and disposed them of on merits. Whether
hearing was given to the respondents in respect of written objections or not
was not made clear and that seems to have weighed with the High Court when
it observed that it is not in dispute by the counsel for the parties, especially
the counsel for the writ petitioner that hearing was not given, However, in the B
rejoinder filed by the appellant in these proceedings, at page 88 of the paper
book it has been clearly averred in paragraph 4 as follows:

"Thereupon the respondent in the O.P. i.e Petitioner in this Special
Leave Petition issued notice fixing Section 5A enquiry on 25.8.1993 to C
all persons interested including the petitioners in O.P. and as scheduled
Section 5A enquiry was conducted on 25.8.1993. Shri Rajesh;K.S.
Counsel for (1) Mrs. Annie Antony (2) ~.fr Antony Fernandez (3) ~.
Moses Pereira and (4) Augustine Pereira was present. He argued that
their property has very high potentiality and if the property is acquire~
tl1ey will be put to irreparable loss, injury and hardship. He also D
argued that the acquisition is unjust, illegal, arbitrary, vitiated by
malafide and against all principles of natural justice. The objections
were examined in detail and it was found that they are not sustainable
and hence the objections along with connected records were forwarded
to the Secretary, Board of Revenue for the approval of Draft Declination
under Section 6 of LA Act overruling the objections raised by the E
petitioners. Board of Rev~nue examined the objection in detail and
overruled the objections vide proceedings No. l.R.(C) 15634/94 dated
20.5.94 (Annexure-C in the SLP) and draft declaration was approved
on 20.5.94 and declaration made on the same day itself.... "
F
Not only that but our attention was invited to the written application
moved by the respondents to the Chief Minister, copy of which is annexed
to the rejoin_der affidavit at page 111 of the paper book. That application is
addressed by all the four respondents to the Chief Minister of Kerala and in
paragraph I 0 of tl1e said written application it had been averred as under:

"On the basis of the said order the Distinct Collector Trivandrum
G
heard the petitioner on 25. 8.1993 and from the attitude of the District
Collector, the petitioners apprehend that the acquisition authorities
are still attached to their earlier proposal ·without considering not he
merits of the claims that are put forth by the petitioners and hence we
are presenting this petition before tlie Hon'ble Chief Minister of H
870 SUPREME COURT REPORTS [1998] l S.C.R.

A Kerala for Your Excellency's kind hearted and humanitarian
considerations."

These averments in the rejoinder submitted by learned senior counsel
for the appellants could not be effectively countenanced by learned senior
counsel for the respondents. Therefore, it has to be held that after tile order
B of the learned Single Judge of Kerala High Court in O.P. No. 8235 of 1993-
E, full opportunity was given to the respondents to have their say in support
of written objections and their counsel was heard. Consequently, even the
second ground on which the High Court allowed the writ petition cannot be
sustained. As a result of the aforesaid discussion the twin points on which
C the acquisition was challenged before the High Court are found to be
unsustainable.

In the results, the appeal is allowed, the judgment and order of the High
Court are set aside and the writ petition filed by the respondents is dismissed.
In the facts and circumstances of the case, there will be no order as to costs.
D
R.P. Appeal allowed.

J