TMI Blog1979 (6) TMI 133X X X X Extracts X X X X X X X X Extracts X X X X ..... Harijans. Among the items of land notified was an extent of 1.17 acres in Survey No, 48/1 belonging to the petitioners herein The enquiry under Section 5-A of the Act was held on 10th February, 1970 and then followed a declaration of the Government under Section 6(1) of the Act by Gazette Notification, dated 27th May, 1970 declaring that the lands were required for a public purpose. 3. The petitioners filed Writ Petition No. 2544 of 1970 on or about 16th August, 1970, to challenge the validity of the declaration. Palaniswami, J., held that there, was no valid service of notice regarding the enquiry under Section 5-A of the Act and, therefore, the enquiry under Section 5-A was vitiated and the declaration under Section 6 that followed was also vitiated. Consequently, by order, dated 3rd November, 1971, the learned Judge allowed the writ petition and held that the enquiry proceedings and the declaration under Section 6(1) have to be quashed without prejudice to the respondent continuing the proceedings in accordance with law, if so advised . 4. In view of this order, a fresh enquiry, after notices were served on the petitioners, under Section 5-A was held on 2nd June, 1972. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eferred to the, Full Bench by the learned Chief Justice. 7. As already stated, Writ Petition No. 2544 of 1970 was filed on 16th August, 1970, and disposed of on 3rd November, 1971, and during that period the stay of further proceedings was ordered by the Court. If this period is excluded from consideration, the subsequent declaration under Section 6(1) of the Act made on 11th October, 1972, will fall within a period of three years from the date of the notification under Section 4(1). If, however, there is no exclusion of the period when the order of stay was in force, then undoubtedly, the impugned declaration will fall beyond the period, prescribed in the proviso in question. 8. Before we consider the arguments of counsel in support of the conflicting positions, we may, with advantage, refer to certain changes made in Section 6 of the Act and the circumstances under which the changes had been made. Before amendment by Act XIII of 1967, Section 6 of the Act read as follows: Section 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ear from this intimate connection between Sections 4, 5-A and 6, that as soon as the Government has made up its mind what particular land out of the locality it requires, it has to issue a declaration under Section 6 to that effect. The purpose of the notification under Section 4(1) is at this stage over and it may be said that it is exhausted after the notification under Section 6....There is nothing in Sections 4, 5-A and 6 to suggest that Section 4(1) is a kind of reservoir from which the Government may from time to time draw out land and make declarations with respect to it successively. If that was the intention behind Sections 4, 5-A and 6, we would have found some indications of it in the language used therein. But, as we read those three sections together, we can only find that the scheme is that Section 4 specifies the locality, then there may be survey and drawing of maps of the land and the consideration whether the land is adapted for the purpose for which it has to be acquired, followed by objections and making up of its mind by the Government what particular land out of that locality it needs. This is followed by a declaration under Section 6 specifying the particular ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f such publication: 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. (2)... (3)... It may thus be seen that the amendment effected to Section 6(1) was intended mainly to overcome the limitations contained in old Section 6 of the Act, viz., that only one, declaration under Section 6(1) can be made in respect of a notification under Section 4(1) of the Act. While, therefore, providing for plurality of declarations under Section 6(1) in its amended form, the legislature had also deemed it necessary to fix a time-limit within which a series of declarations, or even a single declaration under, Section 6(1) should be made from the date of the notification under Section 4(1) of the Act. The first proviso had, therefore, been incorporated only to safeguard the interests of the owners of lands as, otherwise, taking umbrage under the provision for making several declarations in respect of a single notification under Section 4(1), the Government may treat the notification under Section 4(1) a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed a direction under Section 17(4) of the Act, dispensing with the enquiry under Section 5A, of the Act, a draft declaration under Section 6(1) of the Act was also approved by the. Government simultaneously and consequently, the declaration under Section 6 was also published in the Gazette, dated 2nd November, 1966. On 24th January, 1967, the land-owner filed Writ Petition No. 182 of 1967 for the issue of a Writ of certiorari to quash the order of the Government. That petition was admitted on 25th January, 1967 and the Court passed an interim order of stay. The, writ petition was allowed on 26th November, 1968 and the declaration under Section 6 was quashed, hut the notification under Section4(1) was allowed to stand. The Government then issued a notice, dated 12th February, 1969 for holding the enquiry under Section 5-A. The land-owner again filed a writ petition, viz., W.P. No. 642 of 1969 and contended therein that inasmuch as a period of two years had elapsed from the date of notification under Section 4(1), the Government was not entitled to pursue further proceedings in relation to the said notification. 11. Ismail, J. repelled the contention on two grounds, the first one ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tioner in this behalf will become apparent in such a case, because, without there being any delay on the part of the Government it may well be said to have been disabled from completing that acquisition. 12. The matter came up for consideration once again in Lakshmi Venkatesan (minor) v. Special Tasildar, Land Acquisition W.P. No. 1418 of 1972--(1978) 91 L.W. 1. A notification under Section 4(1) of the Act regarding the acquisition of certain land in Vadamaruthur village, Thirukkoilur taluk, South Arcot District, was published in the Government Gazette on 29th March, 1967. Simultaneously, a declaration under Section 6 of the Act was also published, the enquiry under Section 5-A having been dispensed with. The owner of the land challenged the declaration and filed Writ Petition No. 2793 of 1968 which was allowed on 21st January, 1970, and the declaration was struck down. Thereafter, the acquisition authorities invited objections and held the enquiry under Section 5-A and a fresh declaration under Section 6 of the Act was published by Government on 9th September, 1971. The owner of the land again challenge the validity of the declaration in Writ Petition No. 1418 of 1972 and conte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issuance of a Court's order. We agree with the above view and hold that the period of three years specified in the proviso in absolute and that any time during which writ proceedings are pending cannot be, excluded. 13. It is the correctness of this view we have to consider in the present reference. Mr. Sivasubramaniam, learned Counsel for the petitioners, mainly relied on the judgment of the Division Bench referred to above and argued that inasmuch as no provision has been made by the Legislature for the period of limitation for making a declaration under Section 6(1) of the Act being extended on account of the pendency of proceedings in Court, the Courts must construe the section with reference to the plain and unambiguous language in which it has been framed and it is not open to the Courts to supply any omission by engrafting on or introducing in the section something which they think to be a general principle of justice and equity, because, to do so would be entrenching upon the preserves of the Legislature, the primary function of Courts of law being jus decree and not jus dare. His further argument was that, in any event, the Government is not a Court and therefore, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... viso to Sub-section (4) of Section 145, Criminal Procedure Code, in a liberal manner. Lastly, the petitioners' counsel referred to Jang Singh v. Brij Lal [1964] 2 SCR 145, to argue that only if a mistake had been committed by Court in the passing of an order, the maxim actus curiae neminem gravabit can be applied to enlarge the period of limitation. The abovesaid case was cited to buttress the argument that since the Court had allowed the earlier petition, viz., Writ Petition No. 2544 of 1970 and quashed the enquiry under Section 5-A and the declaration under Section 6(1), the Court had not committed any mistake in passing the order of interim stay and therefore, the respondents were not entitled to put forth the plea that the period of stay should be excluded from the computation of the, three years' period prescribed in the first proviso to Section 6(1) of the Act. 15. We shall now deal with the several contentions of Mr. Sivasubramaniam. It is, no doubt, true the Government is not a Court as envisaged under the Limitation Act, and therefore, the provisions contained in Sections 15 and 29 of the Limitation Act will not apply to acquisition proceedings resorted to by Go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ally lend support to the contention of the petitioners and, on the other hand, the ratio in that case runs somewhat counter to their contention. The Full Bench had to consider the question whether a Magistrate, in exercise of his powers under the second proviso to Section 145(1), Criminal Procedure Code, can order restoration of possession to a party whose dispossession had taken place beyond a period of two months next before the date of the preliminary order, by the application of the maxim actus curiae neminem gravabit. The Full Bench held that by means of the proviso, the person who had been forcibly and wrongfully dispossessed within two months next before the date of the preliminary order was deemed, as it were by a legal fiction, to be in possession on the date of the preliminary order though he did not have actually any such possession but the principle of the fiction could not be stretched further to hold that the party wrongfully and forcibly dispossessed should be deemed to be in possession not only on the date of the preliminary order, but also on the date of the petition. But, in so holding, the Full Bench did not say that the maxim cannot ever be invoked by a party. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... We are fortified in our view by the ratio laid down by the Supreme Court in Director, Income Tax v. Pooran [1974] 96 ITR 390 (SC) . That was a case where certain silver bars recovered in the course of a search were seized under Section 132(3) of the Income Tax Act, 1961. The validity of the order of seizure was challenged by means of a writ petition. Subsequently, the, parties consented to the attachment order being quashed and the Income Tax Department being entitled to look into the matter afresh after giving- the petitioners an opportunity to prove that the seized silver bars belonged to a firm and not to one Pooran Mal individually. The writ petition was disposed of on the basis of the, consent arrived at between the parties. After fresh enquiry, the Income Tax Department held once again that the silver bars belonged to Pooran Mal and therefore, they were liable to attachment. This order was again challenged in a further writ petition and therein, it was contended that since the second order under Section 132(5) had been passed beyond a period of three months from the date of the recovery of the silver bars, it was barred by limitation. The Supreme Court rejected the contention ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... period during- which Writ Petition No. 2544 of 1970 remained pending on the file of the Court. During that period there was an order of stay in favour of the petitioners. The Government was not therefore, a free agent during that period to set right any mistakes committed by it. In spite it, can time run out against Government so as to denude it of its full period of three years to make a declaration under Section 6(1) of the Act for acquiring the petitioners' lands? It is this anomaly which has been pointed out by Ismail, J., in Writ Petition No. 642 of 1969 in the following words: The anomaly of the acceptance of the argument of the learned Counsel for the petitioner in this behalf will become apparent in such a case because, without there being any delay on the part of the Government, it will be said to have been disabled from completing that acquisition. 18. The Division Bench which disposed of Lukshmi Venkatesan (minor) v. Special Tahsildar, Land Acquisition W.P. No. 1418 of 1972(1978) 91 L.W. 1, has conceded, that the principle that an act of Court shall prejudice nobody is well established . It, however, refused to apply the principle to a case of land acquisitio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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