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CASE NO.:

Appeal (civil) 2226 of 1997

PETITIONER:

PADMAUSUNDARA RAO (DEAD) &ORS.

Vs.

RESPONDENT:

STATE OF T.N. & ORS.

DATE OF JUDGMENT: 13/03/2002

BENCH:

CJI, R.C. Lahoti, N. Santosh Hegde, Ruma Pal & Arijit Pasayat

JUDGMENT:

WITH

CIVIL APPEAL No. 2058/2002

(Arising out of S.L.P. No.12806 of 2000]

J U D G M E N T

ARIJIT PASAYAT, J.

Noticing cleavage in views expressed in several decisions rendered by

Benches of three learned Judges, two learned Judges referred the matter to a

Bench of three Judges, and by order dated 30.10.2001 the matter was

directed to be placed before a Constitution Bench, and that is how the

matter is before us in C.A. No. 2226/1997. Special Leave petition No.

12806/2000 was directed to be heard along with Civil Appeal.

Leave granted in SLP No. 12806/2000.

The controversy involved lies within a very narrow compass, that is

whether after quashing of Notification under Section 6 of the Land

Acquisition Act, 1894 (hereinafter referred to as the 'Act') fresh period of

one year is available to the State Government to issue another Notification

under Section 6. In the case at hand such a Notification issued under Section

6 was questioned before the Madras High Court which relied on the decision

of a three-Judge Bench in N. Narasimhaiah and Ors. Vs. State of Karnataka

and Ors etc. (1996 (3) SCC 88) and held that the same was validly issued.

Learned counsel for the appellants placed reliance on an un-reported

decision of this Court in A.S. Naidu and Ors. etc. vs. State of Tamil Nadu

and Ors. etc. ( SLP (C) Nos. 11353-11355/1988), wherein a Bench of three

Judges held that once a declaration under Section 6 of the Act has been

quashed, fresh declaration under Section 6 cannot be issued beyond the

prescribed period of the Notification under Sub-section (1) of Section 4 of

the Act. It has to be noted that there is another judgment of two learned

Judges in Oxford English School vs. Government of Tamil Nadu and Ors.

(1995 (5) SCC 206) which takes a view similar to that expressed in A.S.

Naidu's case (supra). However, in State of Karnataka and Ors. Vs. D.C.

Nanjudaiah and Ors. (1996 (10) SCC 619), view in Narasimhaiah's case

(supra) was followed and it was held that the limitation of 3 years for

publication of declaration would start running from the date of receipt of the

order of the High Court and not from the date on which the original

publication under Section 4(1) came to be made.

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Learned counsel for the appellant submitted that a bare reading of

Section 6 of the Act as amended by Act 68 of 1984, leaves no manner of

doubt that the declaration under Section 6 has to be issued within the

specified time and merely because the Court has quashed the concerned

declaration an extended time period is not to be provided. Explanation 1

(appended to the Section) specifically deals with exclusion of periods in

certain specified cases. If the view expressed in Narasimhaiah's case (supra)

is accepted, it would mean reading something into the statute which is not

there, and in effect would mean legislation by the Court whereas it is within

the absolute domain of the legislature. Per contra, learned counsel appearing

for the State of Tamil Nadu submitted that the logic indicated in

Narasimhaiah's case (supra) is in line with the statutory intent. Placing

reliance on the decision in Director of Inspection of Income Tax

(Investigation) New Delhi and Anr. Vs. Pooran Mal and Sons and Anr.

(1975 (2) SCR 104), it was submitted that extension of the time limit is

permissible. Apart from Pooranmal's case (supra), reliance was placed on

two decisions rendered in relation to proceedings under the Income Tax Act,

1961 (in short the 'IT Act'), to contend that there is scope for extension of

time though there was fixed statutory time prescription. The decisions relied

on are Commissioner of Income Tax, Central Calcutta vs. National Taj

Traders ( 1980 (1) SCC 370) and Grindlays Bank Ltd. vs. Income Tax

Officer, Calcutta and Ors. (1980(2) SCC 191). It was, however, frankly

conceded that in Grindlays's case (supra), question of limitation was not

necessary to be gone into as the impugned action was taken within the

prescribed time limit. It was contended that at the most, this can be

considered to be a case of casus omissus, and the deficiency, if any, can be

filled up by purposive interpretation, by reading the statute as a whole, and

finding out the true legislative intent. Strong reliance was placed on a Full

Bench decision of Madras High Court in K. Chinnathambi Gounder and

Anr. vs. Government of Tamil Nadu and Anr. (AIR 1980 Madras 251) to

contend that the view in the said case has held the field since long and the

principles of stare decisis are applicable. Residually, it was submitted that

many acquisitions have become final and if the matters are directed to be re-

opened, in case a different view is taken, it would cause hardship.

Section 6(1) of the Act so far as relevant reads as follows:

"Declaration that land is required for a public

purpose:- 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 5-A, 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, 1967, 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

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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

issued under Section 4, sub-section (1), is stayed by an

order of a Court shall be excluded."

As the factual scenario shows, in the case at hand the Notification

under Section 4(1) of the Act was issued and the declaration was made prior

to the substitution of the existing proviso to Section 6(1) by Act 68 of 1984

with effect from 24.8.1984. In other words, the Notification under Section

4(1) was issued before the commencement of Land Acquisition

(Amendment) Act 1984, but after the commencement of the Land

Acquisition (Amendment and Validation) Ordinance, 1967 (replaced by

Land Acquisition (Amendment and Validation) Act 1967 (Act 13 of 1967).

But the substituted proviso was in operation on the date of the impugned

judgment. In terms of the proviso, the declaration cannot be made under

Section 6 in respect of any land covered by the Notification under Section

4(1) of the Act after the expiry of three years or one year from the date of its

publication, as the case may be. The proviso deals with two types of

situations. It provides for different periods of limitation depending upon the

question whether (i) the notification under Section 4(1) was published prior

to commencement of Land Acquisition (Amendment and Validation)

Ordinance, 1967, but before commencement of Land Acquisition

(Amendment) Act, 1984, or (ii) such notification was issued after Land

Acquisition (Amendment) Act, 1984. In the former case, the period is three

years whereas in the latter case it is one year. Undoubtedly, the Notification

under Section 6(1) was made and published in the official gazette within the

period of three years prescribed under the proviso thereto, and undisputedly,

the same had been quashed by the High Court in an earlier proceeding. It has

to be noted that Explanation 1 appended to Section 6(1) provides that in

computing the period of three years, the period during which any action or

proceeding to be taken in pursuance of the Notification under Section 4(1),

is stayed by an order of the Court, shall be excluded. Under Tamil Nadu Act

41 of 1980, w.e.f. 20.1.1967, the expression used is "action or

proceeding..is held up on account of stay or injunction", which is

contextually similar.

Learned counsel for the respondents referred to some observations in

Pooranmal's case (supra), which form the foundation for decisions relied

upon by him. It has to be noted that Pooranmal's case (supra) was decided

on entirely different factual and legal background. The Court noticed that

assessee who wanted the Court to strike down the action of the Revenue

Authorities on the ground of limitation had himself conceded to the passing

of an order by the authorities. The Court, therefore, held that the assessee

cannot take undue advantage of his own action. Additionally, it was noticed

that the time limit was to be reckoned with reference to the period prescribed

in respect of Section 132(5) of the IT Act. It was noticed that once the order

has been made under Section 132(5) within ninety days, the aggrieved

person has got the right to approach the notified authority under Section

132(11) within thirty days and that authority can direct the Income-Tax

Officer to pass a fresh order. That is the distinctive feature vis--vis Section

6 of the Act. The Court applied the principle of waiver and inter alia held

that the period of limitation prescribed therein was one intended for the

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benefit of the person whose property has been seized and it was open to that

person to waive that benefit. It was further observed that if the specified

period is held to be mandatory, it would cause more injury to the citizens

than to the Revenue. A distinction was made with statutes providing periods

of limitation for assessment. It was noticed that Section 132 does not deal

with taxation of income. Considered in that background, ratio of the decision

in Pooranmal's case (supra) has no application to the case at hand.

Courts should not place reliance on decisions without discussing as to

how the factual situation fits in with the fact situation of the decision on

which reliance is placed. There is always peril in treating the words of a

speech or judgment as though they are words in a legislative enactment, and

it is to be remembered that judicial utterances are made in the setting of the

facts of a particular case, said Lord Morris in Herrington Vs. British

Railways Board (1972) 2 WLR 537.Circumstantial flexibility, one additional

or different fact may make a world of difference between conclusions in two

cases.

What appears to have weighed with the three-Judge Bench in

Narasimhaiah's case (supra) is set out in paragraph 12 of the judgment,

which reads as under:

"Having considered the respective contentions, we

are of the considered view that if the construction as put

up by the learned counsel for the appellants is given

acceptance i.e., it should be within one year from the last

of the dates of publication under Section 4(1), the public

purpose would always be frustrated. It may be illustrated

thus: In a given case where the notification under Section

4(1) was published, dispensing with the enquiry under

Section 5-A and declaration was published within one

month and as the urgency in the opinion of the

Government was such that it did not brook the delay of

30 days and immediate possession was necessary, but

possession was not taken due to dilatory tactics of the

interested person and the court ultimately finds after two

years that the exercise of urgency power was not

warranted and so it was neither valid nor proper and

directed the Government to give an opportunity to the

interested person and the State to conduct an enquiry

under Section 5-A, then the exercise of the power

pursuant to the direction of the court will be fruitless as it

would take time to conduct the enquiry. If the enquiry is

dragged for obvious reasons, declaration under Section

6(1) cannot be published within the limitation from the

original date of the publication of the notification under

Section 4(1). A valid notification under Section 4(1)

become invalid. On the other hand, after conducting

enquiry as per court order and, if the declaration under

Section 6 is published within one year from the date of

the receipt of the order passed by the High Court, the

notification under Section 4(1) becomes valid since the

action was done pursuant to the orders of the court and

compliance with the limitation prescribed in clauses (i)

and (ii) of the first proviso to sub-section (1) of the Act

would be made."

It may be pointed out that the stipulation regarding the urgency in

terms of Section 5-A 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 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

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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 and Ors. Vs. Union of India

and Ors. (1994 (1) SCC 44), 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.

The rival pleas regarding re-writing of statute and casus omissus need

careful consideration. It is well settled principle in law that the Court

cannot read anything into a statutory provision which is plain and

unambiguous. A statute is an edict of the legislature. The language

employed in a statute is the determinative factor of legislative intent. The

first and primary rule of construction is that the intention of the Legislation

must be found in the words used by the Legislature itself. The question is not

what may be supposed and has been intended but what has been said.

"Statutes should be construed not as theorems of Euclid". Judge Learned

Hand said, "but words must be construed with some imagination of the

purposes which lie behind them". (See Lenigh Valley Coal Co. v.

Yensavage 218 FR 547). The view was re-iterated in Union of India and

Ors. v. Filip Tiago De Gama of Vedem Vasco De Gama (AIR 1990 SC 981).

In Dr. R Venkatchalam and Ors. etc. vs. Dy. Transport Commissioner

and Ors. etc. (AIR 1977 SC 842) it was observed that Courts must avoid the

danger of apriori determination of the meaning of a provision based on their

own pre-conceived notions of ideological structure or scheme into which the

provision to be interpreted is somewhat fitted. They are not entitled to usurp

legislative function under the disguise of interpretation.

While interpreting a provision the Court only interprets the law and

cannot legislate it. 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. vs. P.N.B. Capital

Services Ltd. (2000 (5) SCC 515)]. `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's case (supra). In Nanjudaiah's case (supra), the

period was further stretched to have the time period run from date of service

of 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 clauses (i) and/or (ii) of the proviso to Section 6(1), but

also by a non-prescribed period. Same can never be the legislative intent.

Two principles of construction one relating to casus omissus and the

other in regard to reading the statute as a whole appear to be well settled.

Under the first principle a casus omissus cannot be supplied by the Court

except in the case of clear necessity and when reason for it is found in the

four corners of the statute itself but at the same time a casus omissus should

not be readily inferred and for that purpose all the parts of a statute or

section must be construed together and every clause of a section should be

construed with reference to the context and other clauses thereof so that the

construction to be put on a particular provision makes a consistent enactment

of the whole statute. This would be more so if literal construction of a

particular clause leads to manifestly absurd or anomalous results which

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could not have been intended by the Legislature. "An intention to produce an

unreasonable result", said Danckwerts, L.J., in Artemiou v. Procopiou (1966

1 QB 878), "is not to be imputed to a statute if there is some other

construction available". Where to apply words literally would "defeat the

obvious intention of the legislation and produce a wholly unreasonable

result" we must "do some violence to the words" and so achieve that

obvious intention and produce a rational construction. [Per Lord Reid in

Luke v. I.R.C. (1966 AC 557) where at p. 577 he also observed: "this is not

a new problem, though our standard of drafting is such that it rarely

emerges".]

The plea relating to applicability of the stare decisis principles is

clearly unacceptable. The decision in K Chinnathambi Gounder (supra) was

rendered on 22.6.1979 i.e. much prior to the amendment by the 1984 Act. If

the Legislature intended to give a new lease of life in those cases where the

declaration under Section 6 is quashed, there is no reason why it could not

have done so by specifically providing for it. The fact that legislature

specifically provided for periods covered by orders of stay or injunction

clearly shows that no other period was intended to be excluded and that there

is no scope for providing any other period of limitation. The maxim 'actus

curia neminem gravibit' highlghted by the Full Bench of the Madras High

Court has no application to the fact situation of this case.

The view expressed in Narasimhaiah's case (supra) and Nanjudaiah's

case (supra), is not correct and is over-ruled while that expressed in A.S.

Naidu's case (supra) and Oxford's case (supra) is affirmed.

There is, however, substance in the plea that those matters which have

obtained finality should not be re-opened. The present judgment shall

operate prospectively to the extent that cases where awards have been made

and the compensations have been paid, shall not be reopened, by applying

the ratio of the present judgment. The appeals are accordingly disposed of

and the subsequent Notifications containing declaration under Section 6 of

the Act are quashed.

. CJI.

....J.

(R.C. LAHOTI)

....J.

(N. SANTOSH HEGDE)

....J.

(RUMA PAL)

.J.

(ARIJIT PASAYAT)

March 13, 2002

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