Shanti India (P) Ltd. vs Lt. Governor And Ors.
2007 Latest Caselaw 211 Del

JUDGMENT

Mukul Mudgal, J.

1. This writ petition challenges the action of the respondents in issuing the declaration under Section 6 of the Land Acquisition Act, 1894 (hereinafter referred to as the "Act") dated 9th November, 2005 published in the Times of India on 24th November, 2005 purporting to acquire land bearing Khasra No. 125, measuring 5 bighas, 8 biswas, situated in the revenue Estate of village Mehrauli, Tehsil Mehrauli, Delhi (hereinafter referred to as the "said land") in violation of the statutory limitation period of one year from the publication of the date of the notification under Section 4 of the Act prescribed for the issuance of the Declaration under Section 6 of the Act.

2. The brief facts of this case as per the case set up by the petitioner are as follows:

(a) On 2nd February 1999, a Joint survey of the said land was conducted by the respondent No. 4, i.e., DDA/L & B Deptt.

(b) On 15th November, 1999 a Notification dated 11th November, 1999 under Section 4 of the Act was published in the "Hindustan Times". The public purpose stated in the said notification was that the land was likely to be required to be taken by the Government at public expense for a public purpose, namely for 'Vasant Kunj Residential Scheme' under Planned Development of Delhi. The said Notification also stated that the Lt. Governor Delhi was satisfied that the provisions of Sub-section 1 of Section 17 of the Act are applicable to this land and therefore, directed under Section 17(4) of the Act that the provisions of Section 5(A) of the Act shall not apply to the said land. The petitioner's land was covered by the said notification. Section 4, Section 17(1), Section 17(4) and Section 5(A) of the Act read as follows:

Section 4 - Publication of preliminary notification and powers of officers thereupon. (1) Whenever it appears to the appropriate Government that land in any locality is needed or is likely to be needed for any public purpose or for a company a notification to that effect shall be published in the official Gazette [and in two daily newspapers circulating in that locality of which at least one shall be in the regional language] and the Collector shall cause public notice of the substance of such notification to be given at convenient places in the said locality [the last of the dates of such publication and the giving of such public notice, being hereinafter referred to as the date of publication of the notification].

(2) Thereupon it shall be lawful for any officer, either, generally or specially authorised by such Government in this behalf, and for his servants and workmen,

to enter upon and survey and take levels of any land in such locality; to dig or bore in the sub-soil;

to do all other acts necessary to ascertain whether the land is adapted for such purpose;

to set out the boundaries of the land proposed to be taken and the intended line of the work (if any) proposed to be made thereon; to mark such levels, boundaries and line by placing marks and cutting trenches,

and, where otherwise the survey cannot be completed and the levels taken and the boundaries and line marked, to cut down and clear away any part of any standing crop, fence of jungle:

Provided that no person shall enter into any building or upon any enclosed court or garden attached to a dwelling-house (unless with the consent of the occupier thereof)without previously giving such occupier at least seven days' notice in writing of his intention to do so.

Section 5A Hearing of objections - (1) Any person interested in any land which has been notified under Section 4, Sub-section (1), as being needed or likely to be needed for a public purpose or for a company may, within thirty days from the date of the publication of the notification, object to the acquisition of the land or of any land in the locality, as the case may be.

(2) Every objection under Sub-section (1) shall be made to the Collector in writing, and the Collector shall give the objector, an opportunity of being heard in person or by any person authorised by him in this behalf or by pleader and shall, after hearing all such objections and after making such further inquiry, if any, as he thinks necessary, either make a report in respect of the land which has been notified under Section 4, Sub-section (1), or make different reports in respect of different parcels of such land, to the appropriate Government, containing his recommendations on the objections, together with the record of the proceedings held by him, for the decision of that Government. The decision of the Appropriate Government on the objections shall be final.

(3) For the purposes of this section, a person shall be deemed to be interested in land who would be entitled to claim an interest in compensation if the land were acquired under this Act.

Section 17(1) In case 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."

Section 17(4) In the case of any land to which, in the opinion of the appropriate Government, the provisions of Sub-section(1), or Sub-section (2) are applicable, the appropriate Government may direct that the provisions of Section 5A shall not apply, and, if it does so direct, a declaration may be made under Section 6 in respect of the land at any time [after the date of the publication of the notification under Section 4, Sub-section (1):

(c) On 10th December, 1999, the petitioner filed a writ petition No. 7446/99 challenging the notification dated 11th November, 1999 issued under Section 4 of the Act on the ground that there was no material for dispensing with the enquiry under Section 5(A) of the Act. The respondent No. 1 at no stage , had even seen the file concerning the notification dated 11th November, 1999.

(d) On 15th December, 1999, the Division Bench of this Court issued Rule in the above said writ petition and granted a limited stay to the petitioner to the extent that the respondent would not interfere with the possession of the petitioner in respect of the notified land.

(e) On 29th September 2000, the respondent No. 4, i.e., Land & Building, Government of NCT, Delhi, issued a declaration under Section 6 of the Act which was published on the same day. Section 6 of the Act reads as under:

6. Declaration that land is required for a public purpose. - (1) Subject to the provisions of Part 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 authorized 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, 1976 but before the commencement of the Land Acquisition (Amendment) Act, 1984 shall be made after the expiry of 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 of the notification issued under Section 4, Sub-section (1), is stayed by an order of a Court shall be excluded.

(Explanation 2 - Where the compensation to be awarded for such property is to be paid out of the funds of a corporation owned or controlled by the State, such compensation shall be deemed to be compensation paid out of public revenues.]

(2) Every declaration shall be published in the Official Gazette, [and in two daily newspapers circulating in the locality in which the land is situate of which at least one shall be in the regional language, and the collector shall cause public notice of the substance of such declaration to be given at convenient places in the said locality (the last of the date of the such publication and the giving of the public notice, being hereinafter referred to as the date of publication of the declaration), and such declaration shall state] the district or other territorial division in which the land is situate, the purpose for which it is needed, its approximate area, and where a plan shall have been made of the land, the place where such plan may be inspected.

(3) The said declaration shall be conclusive evidence that the land is needed for a public purpose or for a company, as the case may be; and, after making such declaration the Appropriate Government may acquire the land in a manner hereinafter appearing.

(f) The respondent No. 3, i.e, the Land Acquisition Collector (South) passed an award being Award No. 21/2002-2003 dated 28th September, 2002 in respect of the notified land.

(g) On 3rd February 2005, this Court accepted the contention raised by the petitioner but quashed the notification dated 11th November, 1999 to a limited extent in so far as it dispensed with the compliance of the provisions of Section 5(A) of the Act. It was also held that after hearing the objections the Authority should proceed with the acquisition proceedings in accordance with law.

(h) On 21st February 2005, a review petition (C) No. 57/2005 was filed in this Court by the petitioners against the aforementioned directions. The said review petition was dismissed on 21st July 2006.

(i) During the pendency of the review petition, on 24th November 2005 the respondents published a second declaration dated 9th November 2005 under Section 6 of the Act.

3. The learned senior counsel for the petitioner Mr. P. N. Lekhi while challenging the second declaration dated 9th November 2005 under Section 6 of the Act, submitted as under:

a) It is clear from the interim order dated 15th December 1999 passed on W.P(C) No. 7446 of 1999 which restrained the respondents from interfering with the possession of the petitioner in respect of the said land that there was no interim order of this Court restraining the respondents from completing the land acquisition proceedings.

b) The subsequent conduct of the respondents in issuing a declaration dated 29th September 2000 under Section 6 of the Act and passing an award being Award No. 21/2003 dated 20th September 2002 in respect of the said land also indicates that the the respondents also understood that there was no impediment or a restraining order passed by this Court in W.P(C) No. 7446/99 restraining them from completing the acquisition proceedings. Thus, the respondents cannot rely on the provisio (ii) of Section 6(1) of the Act.

c) The notification cannot be good in part and bad in part. This Court having held that the notification of 1999 being partly bad should have gone on to quash the notification. He relied on the following position of law laid down by the Hon'ble Supreme Court in Vitthal v. State of Karnataka wherein it was held that a rule cannot be taken to be good in part and bad in part. The relevant portion of the said judgment reads as follows:

14. We are unable to accede to the submissions of the State Government, the High Court and the "interim appointee". The decision of this Court rendered on 11-10-2001 cannot be rendered nugatory by allowing the very persons in respect of whose appointment this Court has held that the Division Bench should not have allowed them to continue in service. If the subsequent clarification has been misunderstood by the High Court and the State, we can only say that it was unfortunate and surprising as it could not reasonably be accepted that on a review application which was being dismissed the Court had in fact allowed the review and re decided the matter in a diametrically opposite manner. Where the rule has been declared to be unconstitutional the consequences must apply to all the services. The rule could not be taken to be good in part and bad in part. Therefore, only to the extent that appointments had been specifically and expressly protected by this Court the striking down of the rule would operate against all persons who were otherwise not so protected. The question of continuing the "interim appointees" in service, therefore, does not arise. The second notification is therefore quashed.

d) Assuming but not conceding that the respondents were restrained from issuing the declaration under Section 6 of the Act and/or proceeding with the land, no declaration could have been issued under Section 6 of the Act after the statutory period of one year prescribed under the Act had expired and that the court has no discretion to extend the said statutory period. This has also been laid down by the Hon'ble Supreme Court in the case of Padmasundara Rao v. State of Karnataka . The relevant para of the said judgment reads as follows:

11. It may be pointed out that the stipulation regarding the urgency in terms of Section 5A of the Act has no role to play when the period of limitation under Section 6 is reckoned. The purpose for providing the period of limitation seems to be the avoidance of inconvenience to a person whose land is sought to be acquired. Compensation gets pegged from the date of notification under Section 4(1). Section 11 provides that the valuation of the land has to be done on the date of publication of notification under Section 4(1). Section 23 deals with matters to be considered in determining the compensation. It provides that the market value of the land is to be fixed with reference to the date of publication of the notification under Section 4(1) of the Act. The prescription of time-limit in that background is, therefore, peremptory in nature. In Ram Chand v. Union of India , it was held by this Court that though no period was prescribed, action within a reasonable time was warranted. The said case related to a dispute which arose before prescription of specific periods. After the quashing of declaration, the same became non est and was effaced. It is fairly conceded by learned Counsel for the respondents that there is no bar on issuing a fresh declaration after following the due procedure. It is, however, contended that in case a fresh notification is to be issued, the market value has to be determined on the basis of the fresh notification under Section 4(1) of the Act and it may be a costly affair for the State. Even if it is so, the interest of the person whose land is sought to be acquired, cannot be lost sight of. He is to be compensated for acquisition of his land. If the acquisition sought to be made is done in an illogical, illegal or irregular manner, he cannot be made to suffer on that count.

14. While interpreting a provision the court only interprets the law and cannot legislate. 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.

Thus, the second declaration dated 9th November 2005 issued under Section 6 of the Act is invalid because it was issued after a period of one year had expired from the date of the notification issued under Section 4 of the Act.

e) In Deepak Bhardwaj and Ors. v. Union of India , this Court quashed a notification under Section 4 of the Act inasmuch as the time period prescribed for issuance of fresh declaration under Section 6 had expired long back.

4. Mr. Sanjay Poddar, the learned Counsel appearing for the respondent, submitted as follows:

(a) The petitioner cannot submit that the notification under Section 4 of the Act, dated 11th November, 1999 cannot be declared bad in part and good in part because the same issue had been finally decided by this Court by its order dated 3rd February 2005 in which this Court quashed the notification dated 11th November, 1999 limited to the extent in so far as it dispensed with the compliance of the provisions of Section 5A of the Act. The Court relied upon the judgment of the Hon'ble Supreme Court in Union of India v. Mukesh Hans in which it was held as follows:

36. It is clear from the above observation of this Court that right of representation and hearing contemplated under Section 5A of whose property is sought to be acquired and he should have appropriate and reasonable opportunity of persuading the authorities concerned that the acquisition of the property belonging to that person should not be made. Therefore, in our opinion, if the appropriate Government decides to take away this minimal right then its decision to do so must be based on materials on record to support the same and bearing in mind the object of Section 5A.

37. We will now refer to the facts of the present case. We make it clear that this consideration of facts by us is not for the purpose of finding out whether the stated public purpose is in reality a public purpose or not, nor is it for the purpose of finding out whether there was an urgency as contemplated under Section 17(1) of the Act, but limited to the question of whether there was any material available before the Lt. Governor pursuant to whose order Section 4(1) notification stated that 5A inquiry is dispensed with. Since formation of any opinion and application of mind cannot be assessed except by looking into the proceedings which culminated in the impugned order, we intend considering only such facts as is necessary for this limited purpose. The facts of the present case as found from the records shows that the Anjuman-Saire-e-Gul-Faroshan the committee that organizes this festival was using some land in village Mehrauli for conducting its concluding ceremony. It is for this purpose it sought 4000 sq. yards of land in Khasra No. 1151/3 (new) and 1665 (old) of said village. It is also found from the record ever since the revival of the festival the concluding programme was being continued in a piece of land situated in the said Khasra of Mehrauli village which is now sought to be acquired along with certain other lands. There is no material on record to show that either the said festival has been discontinued for want of land or the owners of the land where the festival has its concluding ceremony are preventing the utilization of that land for the said purpose. We have also noticed hereinabove that an earlier attempt to acquire 40 bighas of the land for the very same purpose was allowed to be lapsed by the authorities concerned by efflux of time which is also a relevant factor to be taken note of by the Lt. Governor when he took the decision to dispense with the 5A inquiry but the same was not placed before him. These facts coupled with the findings of the High Court that in almost all the nothings in the file there is no reference to the need for invoking Section 17(4) indicates that the Lt. Governor was not apprised of all the necessary and relevant facts before he took the decision in question. Therefore, in our opinion, the findings of the High Court that the decision of the Lt. Governor to dispense with the 5A inquiry suffered from the vice of non-application of mind has to be upheld. For the reasons stated above, these appeals fails and are dismissed.

(b) The notification under Section 4 of the Act is in various parts and such parts are severable. Thus, this Court rightly quashed the part which was bad in part and severed the others.

(c) The present petition is barred by the provisions of the res-judicata and the petitioner is estopped from raising this ground because these were available to him in the writ petition or a review petition. The petitioner had itself admitted in paragraphs 6 and 7 of the rejoinder that the ground raised in the present writ petition were also raised in the review petition but stated that the same could not be pressed during the course of the arguments and thus pleaded that there is no res-judicata. The said review petition was dismissed by this Court by its order dated 21st July 2006. Para 6 and 7 of the rejoinder read as follows:

6. That in reply to the contents of para 9 of the counter affidavit it is respectfully submitted that this Hon'ble Court vide its order dated 3.2.2005 was pleased to quash notification dated 11.11.1999 to the extent it dispensed with calling for objections under Section 5A. However, this Hon'ble Court inadvertently failed to observe that during the pendency of the writ petition the respondents had issued declaration dated 29.9.2000 and thereafter an Award on 28.9.2002. It is respectfully submitted that the directions issued by this Hon'ble Court inviting objections under Section 5A could only be made after quashing the declaration dated 29.9.2000 and award dated 28.9.2002. It is further submitted that the petitioner had filed Review Petition in view of the fact that the directions issued by this Hon'ble Court did not specifically quash Section 6 notification and the award. In addition it was also mentioned that the statutory period for issuance of fresh Section 6 notification had expired. The petitioner herein preferred the Review Petition No. 57 of 2005 brining the above mentioned facts to the notice of this Hon'ble Court. That during the pendency of the review petition the respondents herein issued a fresh declaration under Section 6 dated 9.11.2005. The said declaration gave a fresh cause of action to the petitioner for which the petitioner has preferred the present writ petition. It is further submitted that the petitioner herein in the present writ petition has contended that declaration dated 9.11.2005 is beyond the statutory period of one year as contemplated by the said Act. In view of the present writ petition based on fresh cause of action, the said plea was not required to be gone into in the Review Petition. It is also pertinent to mentioned that the Review Petition and Writ petition were taken up for hearing together. In view of the fact that plea regarding lapsing of notification under Section 4 was required to be gone into the present writ petition, the same was not addressed in the Review Petition. This was also made clear by the petitioners during the course of hearing of the Review Petition. It is further submitted that the petitioner herein did not file objections under Section 5A pursuant to order dated 3.2.2005 of this Hon'ble Court as the petitioner had preferred Review Petition No. 57 of 2005 alleging that the declaration under Section 6 dated 29.9.2000 and the award under Section 11 dated 28.9.2002 were required to be quashed.

7. That the contents of para 10 of the counter affidavit are baseless, erroneous and vehemently denied. It is respectfully submitted that the present writ petition has arisen out of a fresh cause of action, namely, issuance of Section 6 declaration dated 9.11.2005. It is therefore, respectfully submitted the present writ petition cannot be barred by provisions of res judicata as the issue as raised in the present writ petition was never the subject matter of dispute in the earlier writ petition. It is further submitted that the petitioner had not pressed the grounds raised by it in its review petition in relation to the lapsing of the notification in order to pursue the same in the present writ petition. It is, therefore, respectfully submitted that the averment that the present writ petition is barred by res judicata is completely baseless.

(d) The declaration dated 9th November, 2005 has been issued within the statutory period provided under the law. As per the petitioner itself, an interim order was passed by this Court dated 15th December, 1999 restraining the respondent from interfering in the possession of the petitioner from the land in question. This interim order continued till the date of issuance of declaration dated 9th November 2005 under Section 6 of the Act. It is well settled law that the period of the said interim order, even if it was on a limited ground whereby the respondents were restrained from interfering in the possession of the petitioner is liable to be excluded in reckoning the period of one year according to Sections 4 and 6 of the Act.

(e) He relied upon the judgment of the Honb'le Supreme Court in the case of Ramalinga Thevar v. State of Tamil Nadu and Ors. and Usufbhai Noor Mohmed Nendolia v. State of Gujarat in support of the above plea. The relevant portion of the said judgments read as follows:

(a) Ramalinga Thevar v. State of Tamil Nadu and Ors. (supra)

10. 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.

(b) Usufbhai Noor Mohmed Nendolia v. State of Gujarat (supra)

8. The said Explanation is in the widest possible terms and, in our opinion, there is no warrant for limiting the action or proceeding 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 Section 11A is intended to limit the benefit conferred on a land holder whose land is acquired after the declaration under Section 6 is made to 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.

Even though the position of law laid down in the above mentioned judgments is with respect to the Explanation to Section 11A of the Act, nevertheless the principle laid down therein is applicable in the instant case as well since the explanation to Section 11A is pari materia to the proviso (ii) to Section 6.

(f) The reliance of the petitioner on the decision of this Court in the case of Deepak Bhardwaj (supra) is misplaced as the same stands modified in appeal whereby the Hon'ble Supreme Court remanded the matter back to this Court to decide the validity of the notification issued under Section 4 of the Act independently.

(g) It is a settled position of law that Section 6 of the Act does not prohibit/bar issuance of a fresh declaration, if the first declaration has been quashed by the court, unless the second declaration issued under Section 6 of the Act has been quashed on the grounds of public policy. This has also been held by the Hon'ble Supreme Court in the cases of State of Gujarat v. Bhogilal Keshavlal and State of Gujarat v. Musamiyan Imam Haider Bux Razvi . The relevant paragraphs of the said cases read as follows:

a) Bhogilal Keshavlal'case (supra)

9. It will be noticed that in Girdharilal Amratlal Shodan's case the facts were identical. On August 3, 1960 the Government of Gujarat issued a notification under Section 4 in respect of certain land falling in Final Plot No. 460 of the Town Planning Scheme No. III of Elisbridge in the city of Ahmedabad, stating that the land was likely to be needed for a public purpose, viz., for construction of houses for Sri Krishnakunja Government Servants' Co-operative Housing Society Ltd. On July 18, 1961 the State Government issued a notification under Section 6 stating that the land was to be acquired for the aforesaid public purpose at the expense of Sri Krishnakunj Government Servants' Co-operative Housing Society Ltd. On September 22, 1961, the landholder filed a writ petition in the High Court for an order quashing the notification under Section 6. During the pendency of the proceedings, the Government issued a notification dated April 28, 1964 cancelling the aforesaid notification dated July 18, 1961. On August 14, 1964 the Government issued a fresh notification under Section 6 stating that the land was needed to be acquired at the public expense for a public purpose viz., for the housing scheme: undertaken by Sri Krishnakunj Government Servants' Co-operative Housing Society Ltd.

10. The contention was that by cancelling the first notification under Section 6, the Government must be deemed to have withdrawn from the acquisition and cancelled the notification under Section 4, and therefore, could not issue the second notification under Section 6, without issuing a fresh notification under Section 4. It was also urged that the power of the State Government to issue a notification; under Section 6 was exhausted, and the Government could not issue fresh notification under Section 6. The Court rejected both the contentions observing:

Having regard to the proviso to Section 6 of the Act, a declaration for acquisition of the land for a public purpose could only be made if the compensation to be awarded for it was to be paid wholly or partly out of public revenues or some fund controlled or managed by a local authority. The Government had no power to issue a notification for acquisition for a pubic purpose where the compensation was to be paid entirely by a company. The notification dated July 18, 1961 was, therefore, invalid and of no effect, see Shyam Behari v. State of Madhya Pradesh. The, appellants filed the writ petition challenging the aforesaid notification on this ground. The challenge was justified and the notification was liable to be quashed by the Court.

The State Government realised that the notification; was invalid, and without waiting for an order of Court, cancelled the notification on April 28, 1964. The cancellation was in recognition of the invalidity of the notification. The Government had no intention of withdrawing from the acquition. Soon after the cancellation, the Government issued a fresh notification under Section 6 whereas in this case the notification under Section 6 is incompetent and invalid, the Government may treat it as ineffective and issue a fresh notification under Section 6. This is what, in substance, the Government did in this case. The cancellation on April 28, 1964 was no more than a recognition of the invalidity of the earlier notification

The first notification issued under Section 6 on August 21, 1961 was obviously invalid and of no effect. By the issue of this notification, the Government had not effectively exercised its powers under Section 6. In, the circumstances, the Government could well issue a fresh notification under Section 6 dated September 10, 1964.

11. In State of Gujarat v. Musamiyan Imam Haider Bux Razvi and Anr. etc. (1976) Supp. S.C.R. 28 this Court while reversing the decision of the Gujarat High Court in Dosabhai Ratansha Kerravala (supra) on which the High Court based its decision, has laid down two important principles: (1) In view) of the decisions of this Court in, Pandit Jhandu Lal and Ors. v. The State of Punjab and Ors. , Ratilal Shankarbhai and Ors. v. State of Gujarat and Ors. and Ram Swamp v. The District Land Acquisition Officer, Aligarh and Ors. A.I.R. 1972 S.C. 2390 the acquisition; of land for a co-operative housing society is a public purpose. The Government is the best Judge to determine whether the purpose in question is a public purpose or not; and, it cannot be said that a housing scheme for a limited number of persons cannot be construed to be a public purpose inasmuch as the need of a section of the public may be a public purpose. (2) When a notification under Section 6 is invalid, the government may treat it as ineffective and issue a fresh, notification under Section 6, and nothing in Section 48, of the Act precludes the government from doing so, as held by this Court in Girdharilal Amratlal Shodan.

b) State of Gujarat v. Musamiyan Imam Haider Bux Razvi

4. The second contention raised on behalf of the contesting respondents that the cancellation of the first Section 6 notification amounts to withdrawal from acquisition and no subsequent notification under Section 6 of the Act can thereafter be issued without a fresh notification under Section 4 of the Act cannot be countenanced in view of the decision of this Court in Girdharilal Amratlal Shodan and Ors. v. State of Gujarat and Ors. where it was categorically held that when a notification under Section 6 of the Act is invalid, the Government may treat it as ineffective and issue in its place a fresh notification under Section 6 and that nothing in Section 48 of the Act precludes the Government from doing so and that the cancellation of the earlier notification is only a recognition of the invalidity of that notification. The following observations made therein are apposite:

Counsel for the appellants next submitted that on issuing the notification dated July 18, 1961 (under Section 6), the power of the State Government to issue a notification under Section 6 was exhausted and the Government could not issue a fresh notification under Section 6. There is no substance in this contention. The notification dated July 18, 1961 was invalid. By the issue of this notification, the Government had not effectively exercised its power under Section 6. In the circumstances, the Government could well issue the fresh notification under Section 6 dated August 14, 1964.

5. The learned senior counsel for the petitioner relied upon the position of law laid down by the Hon'ble Supreme Court in the case of Padmasundara Rao(supra) to submit that after a declaration under Section 6 of the Act is quashed by the court, a fresh period of limitation of one year is not available in order to issue a second declaration under Section 6 and that the second declaration has to be issued within the specified time and merely because the court has quashed the declaration concerned, an extended time period is not to be provided from the date of quashing of the first declaration. Thus, according to the learned senior counsel for the petitioner, the second declaration dated 9th November 2005 issued by the respondent No. 4 is not valid as it was issued beyond the limitation period of one year prescribed by Section 6 of the Act. But we are of the view that in the Padmasundara Rao's case (supra) even though the court held that after the declaration under Section 6 has been quashed by the court, the fresh declaration has to be issued within the limitation period of one year provided by Section 6 of the Act, yet that judgment did not deal with the question of the effect of an interim order where the land acquisition proceedings were stayed by the orders of the court. This issue of the period covered by stay orders was dealt with by the Supreme Court in the case of Ramalinga Thevar v. State of Tamil Nadu and Ors. and Usufbhai Noor Mohmed Nendolia v. State of Gujarat (supra) wherein the Hon'ble Supreme Court while dealing with the Explanation to Section 11A of the Act which provides for the exclusion of limitation period of two years in making the award under Sec 11 pursuant to the order of the court which stays any action or proceeding to be taken after the declaration under Section 6 of the Act, held that where a court of law stays the dispossession, the time period during which the stay operates would be excluded from passing the award. The explanation to Section 11A and explanation 1 to Section 6 read as follows:

Explanation to Section 11A - 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.

Explanation 1 to Section 6 - 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.

The Explanation to Section 11A of the Act is pari materia with the Explanation 1 to Section 6 which states that in computing any of the periods referred to in the first provisio, the period during which any action or proceedings to be taken in pursuance of the notification issued under Section 4(1) is stayed by the order of this Court shall be excluded. Thus, the above principle of excluding periods covered by the interim orders granted by Courts would also apply equally to notifications under Section 4 and 6 which fell within such periods which by excluding the period of the operation of the stay order fell within the period of one year.

6. The Division Bench of this Court in Suleman v. Union of India 123 (2005) DLT 2006 also held that Section 6 of the Act does not forbid exclusion of time during which proceedings remained stayed by an order of a court for the purposes of determining whether the second declatration under Section 6 is within the time period of one year from the date of the notification. The relevant paragraph of the said judgment read as follows:

11. A careful reading of the above, would leave no manner of doubt that neither Sub-section (1) of Section 6 nor explanation 1 to the same forbids exclusion of time during which proceedings remain stayed by an order of a court for purposes of determining whether the second declaration issued under Section 6 is or is not within the period prescribed for the same. The language employed in explanation 1 is on the contrary clear and unambiguous. It permits exclusion of time during which proceedings remained stayed under the orders of the court while computing the periods referred to in the first proviso. The period stipulated in the first proviso is doubtless applicable to all declarations under Section 6 irrespective of whether the same is the first or a subsequent declaration. If a second declaration under Section 6 is permitted by law, the same must conform to the requirements of limitation as stipulated in the first proviso to Section 6(1). It must, as a necessary corollary, also mean that while computing the period stipulated in the first proviso, the Court and so also the authority competent to issue the declaration, shall be entitled to exclude from computation the period referred to in explanation 1. Suffice it to say that there is no juristic principle on which the remedial provisions contained in explanation 1 can be held to be inapplicable to cases where a second declaration becomes necessary on account of the quashing or withdrawal of the one issued earlier. So long as a declaration is within the stipulated period prescribed by proviso 1 to Section 6 after excluding the period during which proceedings had remained stayed under an order of the Court, the same would be valid. Just because an earlier declaration had been quashed on account of any legal infirmity by a competent court would not obliterate for purposes of the second notification the provisions of explanation 1 which makes no distinction between the first or a subsequent declaration.

7. In the instant case, the notification under Section 4 of the Act was published on 15th November 1999, acquisition proceedings were stayed by this Court on 15th December, 1999 and on 15th January, 2005, the stay was extended. Thus, even if day of vacation of the stay is taken as to be on 3rd February, 2005, the declaration issued by the respondent No. 4 is within the limitation period of one year as provided by the proviso to Section 6 is available. Therefore, the second declaration dated 9th November 2005 issued by the respondent No. 4 is valid. Even if we assume that there was some ambiguity in the application of principles enunciated by the Hon'ble Supreme Court under Section 11A of the Act mutates mutants to proceedings under Section 4 of the Act, the above judgment in Suleman's case (supra) is directly on the issue raised and contradicts the petitioner's plea and we are bound by law laid in the said judgment.

8. We also do not agree with the submission of the learned Counsel for the petitioner that the notification under Section 4 of the Act cannot be held good in part and bad in part. The learned senior counsel for the petitioner relied upon the position of law laid down by the Hon'ble Supreme Court in the case of Vitthal v. State of Karnataka (supra) wherein it was held that a rule cannot be held good in part and bad in part. Thus, the said judgment relied upon by the petitioner addresses the question of validity of a rule being good in part or bad in part whereas in the present case the learned senior counsel for the petitioner has challenged the validity of the notification and not any rule as being good or bad in part. That part of the notification under Section 4 of the Act dated 11th November 1999 which dispensed with the compliance with the provisions of Section 5A of the Act was in our view clearly severable from the rest of the notification and was rightly quashed by the the judgment of this Court on 3rd February 2005.

9. Considering all the facts, circumstances and the law, we find no merit in the present writ petition and the same is dismissed accordingly along with CM 15207/2005.