G.B. Patnaik, J.
1. These writ applications involve common questions of fact and law and were heard together and are being disposed of by this common judgment.
2. An acquisition proceeding under the Land Acquisition Act (Central Act 1 of 1894) (hereinafter referred to as 'the Act') is under challenge in these writ applications. The land in question had been acquired by the Government of Orissa in the Revenue Department for the purpose of development of New Capital by notification dated 26th of March, 1984, and along with the notification under Section 4(1), the State Government had invoked the emergency provision and had issued notification under Sub-sections (1) and (4) of Section 17 of the Act. The petitioners assailed the validity of the acquisition in O.J.C. No. 2412 of 1984 and this Court quashed the said proceeding by judgment dated 30th of March, 1989, which decision has since been reported in AIR 1989 Orissa 219 (M.K.Jhunjhunwala v. State of Orissa). The proceeding had been quashed on the ground that there had been an inordinate delay of more than three years between the issuance of the notification under Section 17(4) of the Act and declaration made under Section 6 of the Act which indicates that there was no urgency for the acquisition in question. Though the acquisition proceeding had been quashed, but it had been observed that the Government would be free in starting a fresh acquisition proceeding if the land is still required for any public purpose.
The State Government issued the impugned notification under Section 4(1) of the Act on 4-1-1990, annexed as Annexure-1. The petitioners filed their objection under Section 5A challenging the acquisition in question and the said objection was considered and rejected by the Land Acquisition Officer by order dated 19-11-1980, annexed as Annexure-2. Thereafter, declaration under Section 6(1) of the Act was made on 10-1-1991 as per Annexure-3 and notice under Sub-sections (3) and (4) Section 9 of the Act was issued by the Land Acquisition Officer on 8-2-1991, annexed as Annexure-4. The petitioners filed the present writ applications on 20-3-1991 and on 29-4-1991 on an application for interim direction in Misc. Case No. 1529 of 1991, this Court ordered that the petitioners' possession shall not be disturbed until further orders. On 20-8-1991, the interim order dated 29-4-1991 was made absolute, but it has been ordered that it is open for the State if they so feel to file application for modification. On 12-8-1993, an affidavit was filed by the petitioners stating therein that no award having been passed under Section 11 of the Act within two years from the date of publication of the declaration made under Section 6, the acquisition lapses. Finally, the writ applications were heard on 24-8-1993 and learned Advocate General appearing for the State undertook to produce the award, if any, as well as the records of the land acquisition proceeding. The hearing was concluded on 16-9-1993.
3. Mr. B. K. Mohanty, the learned counsel for the petitioners, raises the following contentions in assailing the validity of the acquisition proceeding :--
(i) The Declaration under Section 6(1) of the Act having been made on 11-1-1991, and no award under Section 11 of the Act having been passed within two years from the date of the publication of the aforesaid declaration, the entire proceedings for acquisition lapsed under Section 11A of the Act;
(ii) Acquisition having been made repeatedly after the earlier acquisition having been declared invalid is mala fide and is an abuse of, the process of law;
(iii) No Plans or Schemes having been framed under the Orissa Development Authorities Act (Orissa Act 14 of 1982), the State could not have exercised powers of acquisition under the Central Act and determine the public purpose under Section 3(f) of the Central Act and, therefore, the acquisition under the Central Act is premature.
Learned Advocate-General appearing for the State Government, on the other hand, contends that in view of the Explanation to Section 11A of the Act and in view of the interim order passed by this Court on 29-4-1991 in Misc. Case No. 1529 of 1991, the period for which further proceedings in acquisition having been stayed, the acquisition could not lapse. Learned Advocate-General also urges that in view of the observations made by this Court in the earlier decision, AIR 1989 Orissa 219, giving liberty to the State to start a fresh acquisition proceeding in the public purpose still exists, the subsequent acquisition proceedings cannot be held to be mala fide or an abuse of the process of law and, at any rate, the assertions made by the petitioners in the writ application are not sufficient to make out a case of mala fide acquisition. The learned Advocate-General further contends that even under the Orissa Development Authorities Act, it is for the State Government to form an opinion as to whether any land is required for the purpose of development and on such an opinion being formed, the State Government may acquire such land under the provisions of the Land Acquisition Act and that being the position, there is no infirmity with the impugned acquisition. Learned Advocate General lastly urges that though the petitioners filed objection before the land acquisition authority under Section 5A of the Act, yet never took this objection before the said authority and the matter cannot be permitted to be urged in the writ petition particularly when it depends upon certain determination of facts.
4. We would now scrutinise the contentions advanced by the learned counsel for the parties. Coming to the first contention raised by Mr. Mohanty for the petitioners, there is no dispute that under Section 11A of the Act, an award is required to be made under Section 11 within a period of two years from the date of publication of the declaration and if no award is made within that period, then the entire proceedings for the acquisition of the land would lapse. Therefore, the notification under Section 6 having been published on 11-1-1991, an awrd under Section 11 was required to be made on or before 10-1-1991, an award under Section 11 was required to be made on or before 10-1-1993. It is admitted by the opposite parties in the counter affidavit filed in this Court that no award has been passed and in -course of the acquisition proceedings only notice under Section 9(3) and (4) of the Act was issued on 8-2-1991 and thereafter because of the interim order of this Court dated 29-4-1991, the matter had not proceeded any further. The dispute thus centres round the question as to whether the interim order passed by this Court to the effect 'the petitioners' possession shall not be disturbed until further orders' which order was made absolute by order dated 20-8-1991, can be held to be an order staying further action in the proceedings within the ambit of Explanation to Section 11A so that the period in question wjll be excluded in computing the period of 2 years referred to in Section 11A of the Act.
Mr. B. K. Mohanty, the learned counsel for the petitioners, contends that Explanation to Section 11A will not be attracted until and unless there is any order staying further proceedings contemplated under the Act or any proceeding pusuant to the declaration made under Section 6 of the Act. An order restraining the authorities from taking possession of the petitioners' land cannot be said to be an order staying further proceedings in the matter of acquisition and, therefore, the explanation will not be attracted. According to Mr. Mohanty, while the said order was made absolute liberty had been granted to the State to file application for revocation, but even that liberty was not availed and, therefore, the State cannot complain or take advantage of the order passed by this Court directing that the petitioners' possession shall not be disturbed. In support of this contention, the learned counsel places reliance on the decision of a learned single Judge of the Kerala High Court in the case of S. Bavajan Sahib v. State of Kerala, AIR 1988 Ker 280, and a Bench decision of the Andhra Pradesh High Court in the case of The Andhra Pradesh Industrial Infrastructure Corporation Ltd., etc. v. Chalasani Vijaya Lakshmi, etc., AIR 1993 AP 195. In the first case, the learned Judge of the Kerala High Court held (at page 203) :--
'..... The action or proceeding contemplated by the explanation is therefore any action or proceeding to be taken after the making of the declaration under Section 6 and before the passing of the award under Section 11. Such actions are those contemplated by Sections 7 to 10. The question of taking possession of the land arises only when the award is passed under Section 16 of the Act, except in cases of urgency covered by Section 17. This is not acase in respect of which Section 17 has been invoked. Therefore, the position is that unless there was a stay of the proceedings contemplated by Sections 7 to 10 or of further proceedings pursuant to the declaration under Section 6, the explanation will not operate so as to extend the period of two years prescribed by Section 11A. The order from this Court was only against proceedings for taking possession of the petitioner's land, which is only a post-award operation. There was therefore nothing standing in the way of the Land Acquisition Officer from taking further proceedings pursuant to the declaration under Section 6 and passing the award under Section 11 within two years. The explanation to Section 11 cannot therefore avail the 4th respondent to get extension of the period of two years prescribed by Section 11A.'
The aforesaid decision undoubtedly supports Mr. Mohanty's contention on all fours.
In the other case, a Bench of the Andhra Pradesh High Court also considered the provision contained in Explanation to Section 11A of the Act. In the said case, the High Court had also passed a similar interim order as in the case in hand to the effect :--
'Interim stay of dispossession if the petitioners are not already dispossessed.'
The learned Judges after analysing the different provisions of the Act came to the conclusion that possession under the Act is contemplated by three situations, namely :--
(i) After the award was made by the Land Acquisition Officer under Section 11;
(ii) In case of urgency the Land Acquisition Officer acting under Section 17(1) may take possession although there is no award, provided fifteen days' time has elapsed from the publication of the notice mentioned in Section 9(1) (Notice to interested persons);
(iii) By issuing a declaration under Section 6 invoking the urgency provision in Section 17(4) by dispensing with the enquiry under Section 5A.
Thereafter the learned Judges observed ;--
'The words 'any action or proceeding' mentioned in the Explanation cannot be interpreted in isolation. The enacting clause refers to the obligation of the Collector to make an award and prescribes the time limit of two years for making the award. The words 'action or proceeding' occurring in the explanation and the obligation enjoined on the Collector to make an award must be construed in the same setting. If taking of possession is an 'action or proceeding' pursuant to Section 6 declaration, only then can it be said that the period covered by the order of stay granted by this Court gets excluded in the computation of the two years time limit. As taking of possession is not pursuant to the declaration under Section 6 since it is covered by the aforesaid three eventualities (Sections 16, 17(1) and 17(4)), we are of the view that there was absolute no impediment for the Land Acquisition Officer to make the award notwithstanding the orders of stay granted by this Court. We may also mention that no attempt was made by the Land Acquisition Officer all these years to move this Court seeking either vacation of stay or clarification as to whether award proceedings could be continued.....'
The learned Judges then observed :--
'The language employed in the main enacting cluase of Section 11A and the purpose for which the Section was enacted are indicative of the legislative command that the Land Acquisition Officers should complete the award proceedings within the specified period of two years and the time gets extended only in cases covered by the Explanation. Viewed in that light the Explanation should be interpreted strictly with reference to the provisions contained in the enacting clause. It should not be interpreted widely in order to enlarge the scope of the enacting clause.....'
This decision also supports Mr. Mohanty's contention in all fours.
5. Learned Advocate General, however, contends that the language of the Explanation to Section 11A is in the widest possible terms and there is no warrant for limiting the 'action or proceedings' referred to in the Explanation to actions or proceedings preceding the making of the award under Section 11 of the Act and in support of this contention, he places reliance on the decision of the Supreme Court in the case of Yusufbhai Noormohmed Nendoliva v. State of Gujarat, AIR 1991 SC 2153 : (1991 AIR SCW 2528). The apex Court in the aforesaid case considered the provision of Explanation to Section 11A of the Act and overruling the decision of the Kerala High Court in AIR 1988 Ker 280, came to hold (at page 2155; of AIR 1991) :--
'The said Explanation is in the widest possible terms and, in our opinion, there is no warrant for limiting the action or proceedings 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 the Explanation is intended to confer a benefit on a land-holder whose land is acquired after the declaration under Section 6, is made 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 aquisition 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 obtianed any order from a Court retraining 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.'
In view of the authoritative pronouncement of the Supreme Court interpreting the provision of Section 11A, Explanation of the Land Acquisition Act, the Division Bench decision of the Andhra Pradesh High Court in AIR 1993 AP 195, cannot be said to be a good law and an order from the Court directing that the petitioner's possession shall not be disturbed would attract the Explanation to Section 11A of the Act. As has been held by the Supreme Court in the aforesaid case, the benefit of the provision contained in Section 11A can be availed of by the land-holder who must not have obtained any order from a Court restraining any action or proceeding in pursuance of the declaration under Section 6 of the Act. The Division Bench of the Andhra Pradesh High Court though delivered the judgment on 4-12-1992, but the aforesaid decision of the Supreme Court had not been brought to the notice of the learned Judges. In the aforesaid premises, the first contention of Mr. Mohanty for the petitioners cannot be sustained and the Explanation to Section 11A would be sustained and the Explanation to Section 11A would be attracted and consequently, the proceedings for acquisition of land cannot be held to have lapsed.
6. So far as the second submission of Mr. Mohanty for the petitioners is concerned, the sole basis is that the State Government repeatedly made aborting acquisition and never allowed the petitioners to use their property and, therefore, the Court will infer mala fides. We are unable to accept this contention of the learned counsel for the petitioners. The power to acquire land under the Land Acquisition Act is vested with the State Government if the land is needed for any public purpose. Merely because an acquisition is struck down on some technical ground and the State issues a fresh acquisition notice, it cannot be held to be actuated by malice so long as the public purpose subsists. It cannot be said that construction of a bus stand near the railway station is not a public purpose. That being the position and while annulling the earlier acquisition on account of technical infirmities, this Court having clearly indicated that the Government would be free in starting fresh acquisition proceeding for the purpose for which the land was sought to be acquired and when need for which the land was so acquired still exists, it cannot be said that the acquisition proceeding is vitiated by any mala fides. We have, therefore, no hesitation to reject the second submission of Mr. Mohanty and we accordingly reject the same.
7. Coming to the third submission of Mr. Mohanty, the learned counsel for the petitioners, on which elaborate arguments had been advanced, the sum and substance of Mr. Mohanty's contention is that under the Orissa Development Authorities Act (hereinafter referred to as the 'Development Act'), a detailed procedure has been enacted to how the said Act is paramount and holds the field. According to Mr. Mohanty, under the Development Act, the State Government has to act only on the existence of a Plan or Scheme and until and unless the appropriate authority under the said Act makes a Plan or approves a Scheme for construction of a bus stoppage near the railway station, there is no jurisdiction with the State Government to acquire the land for the purpose for which it is stated to have been acquired. It is further contended that the power of acquisition under Section 72 of the State Act can be exercised by the State Government only when there exists a Plan under the Act whereunder the competent authority has decided to have a bus stand near the railway station and until and unless such a decision of the competent authority is arrived at and there exists an approved plan to that effect, there would be no jurisdiction with the State to acquire the land in exercise of power under Section 72 of the State Act. In support of this contention, the learned counsel places reliance on the decision of the Supreme Court in the case of State of Tamil Nadu v. A. Mohammed Yousef, AIR 1992 SC 1827 : (1992 AIR SCW 1674), as well as on the decision of the Gujarat High Court in the case of Gajanan Maganlal Parikh v. Municipal Corporation, Dana Pith, AIR 1993 Guj 53. In the former case, the apex Court was considering the question of an acquisition in Tamil Nadu, where the Madras State Housing Board Act was in force. The Supreme Court after noticing the different provisions of the Madras State Housing Board Act as well as the Land Acquisition Act came to the conclusion that an acquisition of land is a part and parcel of the scheme under the Madras Housing Board Act and under the Scheme, the process of execution starts immediately when steps for acquisition are taken and, therefore, proceeding under the Land Acquisition Act read with Section 70 of the Madras Housing Board Act can be commenced only after framing the Scheme for which the land is required. The aforesaid decision undoubtedly supports Mr. Mohanty's contention fully. The other decision of the Gujarat High Court on which reliance was also placed considered the legality of an acquisition under the Land Acquisition Act while the Bombay Town Planning Act was in force. After examining the provisions of both Acts, the learned Judges held that the acquisition proceedings initiated under the Land Acquisition Act should be withheld until completion of the proceedings under the Urban Land (Ceiling and Regulation) Act. Though this decision is not directly on the point in issue, yet indirectly it also supports the contention of Mr. Mohanty, the learned counsel for the petitioners.
8. The problems which is faced in the present case is that after the notification issued under Section 4(1) of the Act on 4-1-1990, the petitioners had filed an objection under Section 5A of the Land Acquisition Act, which has been annexed as Annexure-2. In that objection, nowhere it has been pleaded that under the approved Plan of the New Capita! no decision has been taken by the competent authority for having a bus-stop near the railway station for which purpose, the land in question is going to be acquired. The order of the Land Acquisition Officer rejecting the said objection indicates that the objectors excepting narrating the background and history of the case and pointing out the harassment meted out to them never raised any question that there has been no approved Plan with a decision to have a bus stop near the railway station. Even in the writ applications filed in this Court, the ground in question had not been taken. That being the position, it is difficult for us to come to a conclusion that there had been no approved master-plan containing a decision that at the place under acquisition a bus-stand is absolutely necessary. Though the point urged by Mr. Mohanty for the petitioners is of great substance, but the petitioners have failed to establish any materials for that point in question, no such objection having been taken in the objections filed by the petitioners under Section 5A of the Act. Moreover, the opposite parties in their counter-affidavit have averred that the site for development of railway forecourt and establishment of bus terminus was selected by a committee appointed for the purpose which has considered all aspects such as ecology, environment, pollution and planning and after taking into account several sites in the vicinity of Bhubaneswar Railway Station has accepted the site now under acquisition which according to them is most suitable for the purpose. In the premises, as aforesaid, the third contention of Mr. Mohanty for the petitioners cannot succeed.
9. All the contentions raised having failed, the writ applications fail and are dismissed, but in the circumstances, without any order as to costs. The interim order stands vacated.
B.N. Dash, J.
10. I agree.