Anitha Kishori D’ Silva Vs. The Land Acquisition Officer, Mangalore and Others - Court Judgment

Excerpt:
constitution of india - article 254(2) - land acquisition act, 1894 - section 4(1), section 5a, section 6, section 48(1) - karnataka high court act, 1984 €“ section 4 €“ government of india act, 1935 - section 107 - acquisition of property €“ de-notification €“ limitation barred - notification was issued under sub-section (1) of section 48 of the act, 1894 - by issuing said notification property was denotified €“ petitioners/land owners submitted their objections in respect of proposed acquisition and authorities issued a declaration under section 6 of the act, 1894, declaring that the land was needed for public purpose which is challenged €“ hence instant petition issue is €“ whether notification under section 6 of the act, 1894 was barred by limitation as it was not issued within one year from the date of notification under section 4 of the act, 1894 court held - court unable to accept contention of appellant as the delay was caused because of interim stay granted by this court €“ single judge held that there has been a detailed enquiry on various contentions raised by way of objection to notification under section 4 of the act, 1894 - thus, no merit in appeals - interim orders stand vacated and interlocutory applications become in fructuous in view of disposal of appeals - since interim orders stand vacated, court direct authorities to pass an award within a month €“ appeal dismissed. para 25, 27 cases referred: ashok kumar and others v. state of haryana (2007 air scw 1779), deep chand v. state of u.p. (air 1959 sc 648) baraj v. henry ah hoe, (air 1983 sc 150), hoechst pharmaceuticais limited v. the state of bihar [1983 (4) scc 45], m. karunanidhi v. union of india [1979 (3) scc 431]. comparative citations: 2015 (5) kantlj 558, 2015 ilr(kar) 3769, (prayer: these writ appeals are filed u/s 4 of the karnataka high court act praying to set aside the order passed in the writ petition nos.40140-141/2012.) 1. the land owners are successfully preventing the acquisition of the property in dispute for the last few years. 2. a notification under sub-section (1) of section 4 of the land acquisition act, 1894 ( the act for short), was issued on january 07, 2006 proposing to acquire the land. 3. on january, 02, 2007, a notification was issued under sub-section (1) of section 48 of the act. by issuing the said notification under sub-section (1) of section 48 of the said act, the property was denotified. 4. the notification, denotifying the property under sub-section (1) of section 48 of the said act, was under challenge before this court in writ petition no.3962 of 2007. this court, by judgment and order dated november 23, 2007, allowed the writ petition. 5. these land owners presented a memorandum of appeal on february 02, 2008, challenging the decision of this court dated november 23, 2007, which was registered as a writ appeal no.11 of 2008. 6. initially, on june 27, 2008, the interim stay was granted for a limited period of eight weeks. by order dated june 22, 2009, interim stay was extended till the disposal of the appeal. ultimately, only on june 16, 2011, the writ appeal was disposed of. 7. in the interregnum, on march 24, 2008 the authorities issued a fresh notification under sub-section (1) of section 4 of the act. 8. the land owners submitted their objections in respect of the proposed acquisition. the authorities considered such objections as contemplated under section 5a of the act. ultimately, a declaration under section 6 of the act was issued on july 18, 2012, declaring that the land was needed for public purpose. 9. the final notification dated july 18, 2012 is under challenge. 10. mr. sampath anand shetty, learned counsel for the appellant strenuously argues that the notification under section 6 of the act was barred by limitation. it was not issued within one year from the date of the notification under section 4 of the act. 11. we are unable to accept such contention of mr. shetty as the delay was caused because of the interim stay granted by this court at the instance of mr. shetty's client, appellant herein. 12. mr. shetty draws our attention to the decision in the case of ashok kumar and others v. state of haryana (2007 air scw 1779), in order to highlight his submissions that the limitation period prescribed under section 6 of the said act was meant for the benefit of the owners and the same could not be allowed to be taken away by a proceeding in a court. 13. in that reported case, the proceeding was not continued on an impression that the injunction period would continue till final disposal of the suit, unless expressly vacated. it was held that the interim stay was extended by an express order till a particular date. therefore, ashok kumar (supra) has no application in this case. 14. mr. shetty, next submits, that a detailed objection was filed, but such objections were not considered in terms of the karnataka amendment of section 5a of the act. the karnataka amendment was inserted with effect from august 24, 1961. 15. it seems that the attention was not drawn to mr. shetty that section 5a of the act suffered central amendment with effect from september 24, 1984. 16. section 5a of the land acquisition act, 1894, was inserted by act 38 of 1923. section 5-a of the act is based on wholesome principle that a person whose property is being or intended to be acquired should have a proper and reasonable opportunity of persuading the authority concerned that the acquisition of property should not be made. 17. sub-section (2) of section 5-a of the said act was amended by mysore act was amended by mysore act 17 of 1961, dated august 24, 1961. under the said state amendment, it was incumbent upon the collector to submit a report, containing his recommendations on the objections and the fact of having submitted the report shall be communicated to the objectors; provided that the appropriate government, may, if it is satisfied that there was sufficient cause for the delay, condone any delay, in the submission of the report by a period not exceeding one year. 18. however, the said section 5-a was amended by the parliament or central legislature by act 68 of 1984 with effect from september 24, 1984. sub-section (2) of section 5-a, after such amendment of 1984, reads as under: (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 authorized 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 of 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. the provision for communication of the report to the objectors was inserted by the state legislature in 1961. the said provision is not available under the central act, after the amendment of 1984, as the said provision has been amended by the parliament. therefore, the submission of mr. shetty, that the owners were entitled to get a communication from the collector, cannot be accepted. the karnataka state amendment became clearly repugnant to the subsequent central legislation. 19. clause (1) of article 254 states that in case of repugnancy of a law made by a state legislature with the law made by the parliament relating to a subject in the concurrent list (list iii of seventh schedule), the law made by the parliament would prevail and the state law would fail to the extent of repugnancy, whether the law made by the parliament is prior to or subsequent to the state law. 20. clause (2) engrafts an exception, which is to the effect that if the president assents to a law made by the state legislature which has been reserved for his consideration, then that law would prevail, notwithstanding the repugnancy to an earlier law made by the parliament. but this exception is subject to a proviso. the proviso to clause (2) of the article states that the parliament can repeal or amend the repugnant law made by the state legislature even though it has become valid by virtue of the president's assent in respect of the same subject matter. thus, while clause (1) of article 254 is the general rule, clause (2) is an exception to clause (1) and the proviso to clause (2) qualifies the exception vide, deep chand v. state of u.p. (air 1959 sc 648). in other words, even after obtaining the assent of the president to a state law or enactment, which is inconsistent with the previous parliamentary law, relating to a concurrent subject, would be that the state law would prevail in that state and overrides the provisions of the central law in their applicability to that state only. but the predominance of the state act or law may, however, be taken away if parliament legislature under the proviso to clause (2) enacts a new law or amends the existing central law. vide baraj v. henry ah hoe, (air 1983 sc 150), hoechst pharmaceuticais limited v. the state of bihar [1983 (4) scc 45], m. karunanidhi v. union of india [1979 (3) scc 431]. 21. the parliament may not expressly repeal the state law but by necessary implication, the state law stands repealed to the extent of repugnancy as soon as the subsequent law creating repugnancy is made. 22. the special provision as contained in proviso to clause (2) of the article 254 of the constitution of india is an exception to the rule that parliament cannot repeal a law passed by a state legislature. it is open to the parliament to subsequently pass law adding to, amending, varying or repealing the state law made even with the assent of the president of india. the doctrine of repugnancy as contemplated under clause (2) of article 254 of the constitution of india is applicable only when the parliament or central legislature as well as the state legislature enact law on matters included in the concurrent list. the obtaining of the assent of the president of india of state law under clause (2) serves to cure repugnancy of the state law only with reference to an earlier central law. it cannot confer validity on the state law with reference to subsequent central law or amendment made to central law. 23. the proviso to clause (2) of article 254 of the constitution of india is a departure from section 107 of the government of india act, 1935. power of the central legislature is enlarged enabling the central legislature to enact a law adding to, amending, varying or repealing a law passed by the state legislature. the central legislature has overriding and plenary power of legislation and in exercise of such authority it could amend, repeal, modify or add to any existing law. law made by the central legislature shall prevail. 24. where the central legislature passes an act on the same matter within the meaning of proviso to clause (2) of article 254, the state law, which was at variance with it, is rendered bad for repugnancy. 25. by the order impugned dated february 04, 2014, the hon'ble single judge held that there has been a detailed enquiry on various contentions raised by way of objection to the notification under section 4. thus, we do not find any merit in the writ appeals. consequently, the writ appeals are dismissed. 26. all interim orders stand vacated. the interlocotury applications become infructuous in view of the disposal of the appeals. 27. since the interim orders stand vacated, we direct the authorities to pass an award within a month from the date of receipt of certified copy of this order, if the same has not yet been passed. 28. we make no order as to costs.