Dismissed

Shri John Philip Pereira v. State of Goa through the Chief Secretary and Ors.

Bombay HC23 Oct 2012PILWP/35/2011

Case brief

AI extract

What is this about?

In this PIL, the High Court of Bombay at Goa dismissed a petition challenging a notification withdrawing land acquisition. The court held that acquisition proceedings lapse under Section 11A if no award is made within two years of the declaration, rendering the petition infructuous regardless of the quashing of the withdrawal notification.

What did the court decide?

Writ petition dismissed; interim order continued until 31st December 2012.

Shri John Philip Pereira Vs State of Goa through the Chief… — Land Acquisition | Bombay HC (2012)

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IN THE HIGH COURT OF BOMBAY AT GOA

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PIL WRIT PETITION NO. 35 OF 2011

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Shri John Philip Pereira, aged 54 years, r/o H.No.520, Mazelwaddo, Nagoa, Salcete, Goa,

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…...... Petitioner.

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V/s.

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State of Goa, through the Chief Secretary, having Office at Secretariat, Porvorim, Bardez, Goa.

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The Airport Authority of India, through the Airports Director, Goa International Airport, Dabolim – Goa.

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The Union Ministry for Civil Aviation, through its Secretary, “B” Block, Rajiv Gandhi Bhavan, Safdarjung Airport, New Delhi.

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The Mormugao Planning & Development Authority, through the Member Secretary, Commerce Centre, II Floor, Vasco-da-Gama – Goa.

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The Flag Officer Commanding of Goa Naval Area, INS-Gomantak, Vasco-daGama.

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The Collector, Collectorate Building, opp. Municipal Park (South Goa District), Margao – Goa.

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The Special Land Acquisition Officer, Mopa Airport, Junta House, Panaji, Goa.

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(a) Shankar Anant Kantimani,

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(b) Fatima D'Souza,

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(d) Albertina Rosario de Souza e Costa,

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(e) Manuel C. De Fonseca Costa,

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(f) Ligette Gomes e Costa,

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(g) Francisco A.T. Da Costa,

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(h) Alzira Barros e Costa,

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(i) Alice de Fonseca Costa e Pereira,

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(j) Xavier Estevao Pereira,

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(k) Dr. Joaquim F.F. Da Barros Costa,

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(l) Angela Lira Da Costa e Gomes,

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(m) Filomeno Sartao Gomes,

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(n) Ivo Dos Milagres Costa,

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(o) Albertina Rebello e Costa,

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(p) Assis Adolfo Da Costa,

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(q) Celina Brito e Costa,

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(r) Valento Das Dores Costa,

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(s) Maria Olga Correia Neves e Costa,

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All the above from 8(a)-(s), Represented herein by their authorized attorney, Shri Bernard D'Costa, Married, major in age, R/o 132/2, Assoy, Chicalim – Goa.

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s1) Mr. Alvaro Teotonio Rebello e Costa, son of late Mr. Ivo Milagres Costa, major of age, service/business and his wife

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s2) Mrs. Avita Baretto Costa, major of age, housewife/service

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s3) Mr. Felix Carlos Milagres Rebello e Costa, son of late Mr. Ivo Milagres Costa, major of age, service/business and his wife

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s4) Mr. Maria Soua Costa, major of age, service business

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s5) Mr. Philip Estevao Rebello e Costa, son of late Mr. Ivo Milagres Costa, major of age, retired and his wife

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s6) Mrs. Susana Fernandes Costa, major of age, service/business

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s7) Mr. Tolantino Pereira, son of late Mr. Estefano Francisco Xavier Pereira, major of age, service/business and his wife

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s8) Mrs. Cyntia Pereira, major of age, service/business and his wife

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s9) Mr. Antonio Pereira, son of late Mr. Estefano Francisco Xavier Pereira, major of age, service/business

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s10) Mrs. Maria Lourdes Pereira, wife of late Mr. Paul Pereira, major of age, service/business

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s11) Mrs. Malvina Viegas Pereira, daughter of late Mr. Paul Pereira, major of age, service/business and her husband

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s12) Mr. Wilfred Fernandes, major of age, service/business

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s13) Mr. Xavier Pereira, of late Mr. Paul Pereira, major of age

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s14) Mrs. Abizai Providencia Pereira, major of age, service/business

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s15) Mr. Sunil Viegas Pereira, son of late Mr. Paul Pereira, major of age, service/business

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s16) Mrs. Albertina Do Rosario Souza e Costa, daughter of late Mr. Damasie Joaquim Maria de Souza, major of age

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s17) Mr. Jose Antonio Magnos de Costa alias Mr. James Costa, son of late Mr. Luis Fonseca D'Costa, major of age, in business and his wife

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s18) Mrs. Julina Laura D'Costa, major of age, in service

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s19) Mrs. Andrea Costa Pereira, daughter of Mr. Adolfo Assis D'Costa, major of age

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s20) Mr. Jorge Goncalo Barros Costa, son of late Mr. Francisco Anonic Trifonio da Costa, major of age

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s21) Mrs. Rosa Maria Borges Pereira Barros Costa, major of age, and her husband

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s22) Mr. Rui Manuel Barros Costa, son of late Mr. Francisco Anonio Trifonio da Costa, major of age

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s23) Mrs. Maria Flavia Santana Fernandes de Barros Costa, major of age

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s24) Mrs. Maria Fatima Barros Costa, daughter of late Dr. Joaquim Filip Frederico Barros Costa, major of age

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s25) Mrs. Carla Maria de Narros Costa, daughter of late Dr. Joaquim Filip Frederico Barros Costa, major of age

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s26) Mrs. Angela Lira da Costa, daughter of late Mr. Bernardino Theothonio da Costa, major of age

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s27) Mrs. Iva Claudia Machado, daughter of late Mr. Maria Rude da Costa Gomes, major of age

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s28) Mr. Rui Filip Gomes Machado, husband of late Mrs. Maria Rude da Costa Gomes, major of age

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s29) Mr. Luis Manuel Neves Costa, son of late Mr. Valente Das Dores Costa, major of age

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s30) Mrs. Maria Manuel Neves Costa, daughter of late Mr. Valente Das Dores Costa, major of age

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s31) Mrs. Liseta da Assumcao Gomes, wife of late Mr. Manuel Constancio da Fonseca e Costa, major of age

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s32) Mr. Bernardino Goncalo Gomes Costa, son of late Mr. Manuel Constancio da Fonseca e Costa, major of age, and his wife

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s33) Mrs. Nazare da Conceicao Lopez Costa, major of age

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s34) Mr. Manuel da Fonseca e Costa, son of late Mr. Manuel Constancio da Fonseca e Costa, major of age

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s35) Mrs. Maria Helena Costa, daughter of late Mr. Manuel Constancio da Fonseca e Costa, major of age and her husband

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s36) Mr. Anthonio Jose Braga Bores, major of age,

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All of the above from 8(S1) to (S36) Represented herein by their power of Attorney,

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s-37) Shri Bernard D'Costa, Married, major in age, R/o 132/2 Assoy, Chicalim, Goa.

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Saroj Real Estate Developers, Through Mr. Ashwin Cholera, 11, I Floor, Apna Bazaar, Vasco-da-Gama, Goa.

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Shri Aniruddh Mehta, son of Bhanuprasad Mehta, aged about 51 years, Business Conducting, Business as Sole Proprietor of M/s. Umya Builder and Developers, with main office at 1075,9, 10^th Main, 3^rd Cross Hall II, Stage India, Bangalore, 560008 and local office at 102 & 103, 1^st Floor, Anand Towers – I, Airport Road, Chicalim, Goa.

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…...... Respondents.

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Mr. S. G. Dessai, Senior Advocate with Mr. Anoop Gaonkar, Advocate for the petitioner.

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Mr. A.N.S. Nadkarni, Advocate General with Mr. D. Lawande, Government Advocate for respondent Nos.1, 6 and 7.

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Mr. S. D. Padiyar, Advocate for respondent No.2.

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Mr. C. A. Ferreira, Asst. Solicitor General for respondent Nos. 3 and 5.

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Mr. H D. Naik, Advocate for respondent No.4.

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Mr. Nitin Sardessai, and Mr. L. Raghunandan, Advocates for respondents No.8(b), (f), and (l).

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Mr. V. B. Nadkarni, Senior Advocate with Mr. N. Noronha, Advocate for respondent No.9.

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Mr. E. O. Mendes, Advocate for respondent No.10.

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CORAM :- S.J. VAZIFDAR & U.V. BAKRE, JJ.

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Reserved on : - 12^th October, 2012. Pronounced on :- 23^rd October, 2012.

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J U D G M E N T :- (Per S.J. VAZIFDAR, J.)

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This writ petition is filed as a public interest litigation. Respondents No.2 to 7 are the Air Port Authority of India, Union Ministry for Civil Aviation, the Mormugao Planning and Development Authority, the Flag Officer Commanding of Goa Naval Area, the Collector, South Goa, Margao and the Special Land Acquisition Officer. Respondent Nos.8(a) to 8(s) and (s-1) to (s-37) are the owners of the property which is the subject-matter of this petition. Respondent Nos.9 and 10 are Saroj Real Estate Developers and one Aniruddh Mehta who carries on business in the firm name and style of “M/s. Umya Builder and Developers” as the sole proprietor thereof.

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The petitioner seeks a writ of certiorari, quashing a notification dated 16^th March, 2011 under Section 48(1) of the Land

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Acquisition Act, 1894 withdrawing from acquisition the land which is the subject-matter of this petition and an order quashing the entire decision making process taken on 14^th February, 2011 and 9^th March, 2011, leading to the notification under Section 48(1). The petitioner has also sought consequential reliefs challenging development and/or sale agreements entered into between the original respondent No.8 and/or respondent No.9 with third parties and orders setting aside the permissions granted by various authorities for development of the property.

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The learned Advocate General raised a preliminary objection. He was supported by the learned Counsel appearing on behalf of all the other respondents. They contended that even assuming that the petitioner succeeds in having the notification under Section 48(1) set aside, it would make no difference as, in any event, the acquisition proceedings have lapsed in view of Section 11A of the Act.

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The point in a nutshell is this. The last publication of the declaration under section 6 was on 10^th June, 2010. The notification

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under section 48(1) was issued on 16^th March, 2011 withdrawing from acquisition the said land. The period of two years prescribed in section 11-A for making an award expired latest on 10^th June, 2012 without an award having been made.

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The respondents contend that the entire proceedings for the acquisition of the land have lapsed. The petitioner on the other hand contends that if the notification is set aside by this Court the period between the date of the notification under section 48(1) (10^th June, 2010) to the date on which it is set aside would have to be excluded in computing the period of two years prescribed in section 11A.

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If the objection is well founded, the issues raised in the petition would be purely academic for the objection sought to be achieved in this petition viz. the acquisition of the land pursuant to the said process of acquisition stands frustrated on account of the entire acquisition proceedings having lapsed. It would then be a futile exercise deciding the various aspects raised in the writ petition.

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After hearing the arguments on this issue we reserved our

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order on it and adjourned the petition. We informed counsel that if we rejected this objection we would proceed with the hearing of the petition on the other issues.

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We find the respondents' objection to be well founded and supported by three judgments of the Supreme Court. Even assuming the notification under section 48(1) is set aside, the judgments prohibit the exclusion of the period from the date of the notification under section 48(1) to the date of its being set aside.

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As we intend dismissing the writ petition on the basis of

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the above contention, we will refer to the facts only briefly. Indeed the relevant facts are only four :-

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(i) The last publication of the declaration under section 6 was on 10^th June, 2010;

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(ii) The period of two years from that date for making an award expired latest on 10^th June, 2012;

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(iii) No award was made during that period and

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(iv) the notification under section 48(1) was issued on 16^th March, 2011.

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However, as Mr. Dessai strongly relied upon certain facts to contend that the notification is illegal and void we will refer to them.

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9(A) On 12^th May, 2006, a meeting was convened between various Government and defence personnel, including the Deputy Chief Minister of Goa, the Secretary, Ministry of Civil Aviation, Government of India, Joint Secretary, Ministry of Civil Aviation, Government of India, Vice Admiral, Deputy Chief of Navy Staff, and the Director (Navy), Ministry of Defence.

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The minutes of the meeting refer to the importance of the Dabolim Airport at Goa and the increasing demand for space/land, including for parking and record an assurance by the Government of Goa that it would make available lands for parking near the airport.

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(B) By an internal letter dated 19^th December, 2008 addressed by the General Manager, Airport Authority of India, to the Airport Director, AAI, Goa Airport, the in-principle approval of the competent authority was conveyed for the acquisition of land, admeasuring 89,231 sq. metres for expansion of Goa Airport at an estimated costs of

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Rs.5.6 crores (approximately). The Airport Director was requested to make a formal requisition to the Government of Goa for acquiring the said land.

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10(A) Pursuant thereto, a notification under section 4 dated 23^rd July, 2009 was issued. The notification stated that the said land was likely to be needed for the public purpose of expansion of the airport for parking.

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(B) On 17^th November, 2009/20^th November, 2009, the owners raised objections to the acquisition. Mr. Dessai emphasised that the owners did not object to the acquisition on the ground that it was not for public purpose. The objection was that the acquisition was not by the “proper government”.

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(C) On 13^th May, 2010, the Special Land Acquisition Officerrespondent No.7 prepared the report under Section 5A of the Land Acquisition Act. The report concluded that the acquisition for the airport was necessary since there is insufficient space for parking vehicles and that the acquisition was required to ensure smooth flow of

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vehicles. The report, therefore concludes that the acquisition is in the interest of public and for a public purpose. The SLAO recommended the acquisition, but of an area of 69,448 sq. metres.

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(D) On 10^th June, 2010 the section 6 notification was issued.

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On 25^th January, 2011, the co-owners issued a power of attorney in favour of one of the co-owners. On 27^th January, 2011, a representation was made to the Minster for Revenue, State of Goa raising various grievances in respect of the acquisition.

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On 14^th February, 2011, a meeting was held under the chairmanship of the Chief Minister of Goa, in respect of the said acquisition, which was attended, inter alia, by the Revenue Minister and the Deputy Speaker of the Goa Legislative Assembly, the Chief Secretary of Goa, Revenue Secretary, Law Secretary, various other Officers of the Government of Goa, and the Airport Authority of India. The SLAO and the OSD and a representative of the owners also attended the meeting.

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Mr. Dessai emphasised that the representative of the Airport Authority of India stressed the need for acquiring the said land. The Minister for Revenue and the Deputy Speaker, on the other hand, stated that alternate space was available for parking and advised that the same ought not to be acquired. The minutes of the meeting conclude that the decision was taken by the Government not to acquire the land. The PWD was directed to initiate action to acquire the alternate land available and to drop the acquisition proceedings in respect of a part of the said land. Mr. Dessai also emphasised that the owners contended that the land was classified as 'settlement zone' and that it was meant for family use and therefore, it was unfair to acquire the same. He stated that the owners, in fact, never intended using the land for their residence or otherwise, and have entered into agreements for sale and/or development thereof.

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Mr. Dessai referred to a “NOTE FOR CABINET” dated 9^th March, 2011. After referring to some of the above facts, the note refers to a Government Circular dated 7^th April, 2003 which provides that one of the conditions to drop the proposal of acquisition is that the matter is required to be approved by the cabinet as it is a policy

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decision. The note records the resolution before the cabinet to denotify the acquisition in respect of a part of the property under Section 6 since the physical possession of the land had not been taken by the government. The note had been approved by the Chief Minister and the Minister for Revenue.

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Ultimately, the impugned notification dated 16^th March, 2011 was issued under Section 48(1) of the Act. The same recites that a part of the property which was initially proposed to be acquired was not required for the said purpose, viz.for parking at the Dabolim Airport. The notification declared that the Government had withdrawn from the acquisition of the said land and that the Government notification for acquisition shall be deemed to be modified to that extent.

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Mr. Dessai then relied upon the fact that on 27^th June, 2011 the owners had entered into an agreement for sale of the property with respondent No.8 and on the same day, the local planning authority granted permission for subdivision of the property into four plots. On 30^th August, 2012 development permission was granted by the local

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development authority to original respondent No.8. This he contended belied the statement of the owners as recorded in the minutes of the said meeting held on 14^th February, 2011 that the land was meant for family use.

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Mr. Dessai placed considerable emphasis on a letter dated 2^nd August, 2011 from the Airport Authority of India to the Chief Secretary of Goa, objecting to the notification under Section 4(1) withdrawing the acquisition in respect of a part of the lands.

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The writ petition was filed on 12^th September, 2011. It is important to note that by order dated 29^th November, 2011, the Division Bench, to which one of us (U.V. Bakre, J.) was a party, granted limited interim relief to the effect that any development that would be carried out thereafter by respondent Nos. 8 and 9 in the portion of the land in respect of which the acquisition has been withdrawn under Section 48, would be subject to the result of the petition and that respondent nos.8 and 9 shall not be entitled to claim

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any equity in respect of such developments. It is necessary to note that neither the acquisition proceedings in respect of the balance portion of

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the land, nor the impugned notification under Section 48 were stayed. Indeed, it appears that an application for such a relief was not even made. The significance of this will be apparent when we deal with the preliminary objection.

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An award dated 25^th November, 2011 was made for the acquisition of the remaining land. In view of the notification under Section 48, obviously, no award was made in respect of the land which is the subject matter of the petition.

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Finally, it is important to note that as the last publication of the declaration under Section 6 was on 10^th June, 2010, the period of two years prescribed in section 11-A, for making the award expired on 10^th June, 2010.

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Section 11A of the Act reads as under :

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[ 11A. Period within which an award shall be made. -(1) The Collector shall make an award under section 11 within a period of two years from the date of the publication of the declaration and if no award is made within that period, the entire proceedings for

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the acquisition of the land shall lapse:

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Provided that in a case where the said declaration has been published before the commencement of the Land Acquisition (Amendment) Act, 1894 (68 of 1984), the award shall be made within a period of two years from such commencement.

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Explanation. - 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.]”

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The respondents contended that even if the petition is allowed and the notification dated 16^th March, 2011 is quashed and set aside, it would make no difference as the entire acquisition in respect of the said land has lapsed. They contended that even in the absence of the impugned notification under Section 48, a period of over two years has lapsed from the date of publication of the declaration. In other words, as admittedly, no award has been made within a period of two years from the date of publication, the entire proceedings for acquisition of the land have lapsed. Section 11-A excludes the time in computing the period of two years only where any action or

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proceeding to be taken pursuant to the declaration, is stayed by an order of a Court. Admittedly, in the present case, there is no such order staying the action or proceedings to be taken in pursuance of the declaration.

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Mr. Dessai, on the other hand, contended that in view of the notification under Section 48, the declaration under Section 6 stood withdrawn/modified and the acquisition could not proceed. Even the award could not, therefore, be made. He submitted that the doctrine of eclipse is a complete answer to this objection. Our attention was not invited to any authority in support of the submission that the doctrine of eclipse would apply in such a situation in saving a bar of limitation. We presume that what Mr. Dessai meant was that the land acquisition proceedings stood eclipsed or frozen in view of issuance of the impugned notification under Section 48 and that the same would be removed or lifted in the event of the same being struck down.

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Mr. Dessai submitted that the respondents' submission if accepted would lead to a most unusual result, especially in a case where the notification under Section 48 is found to have been issued

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fraudulently and in collusion between the authorities and the owners of the property. Such a view would enable the owners of the property to take advantage of their own wrong and fraudulent acts. Mr. Dessai submitted that a refusal to exclude the period between the date of issuance of the notification under Section 48 and the date of the same being quashed could lead to absurd and drastic consequences. He illustrated this with a case where the notification under Section 48 is found to have been issued fraudulently and in collusion between the authorities and the owner or other persons interested in the land sought to be acquired and is accordingly quashed.

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The consequence, at first blush is indeed drastic. It is, however, difficult to accept this submission for more than one reason.

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The consequences may not be as drastic as they appear to be at the first blush. The property could be acquired by initiating acquisition proceedings afresh. Indeed, in that event, the compensation may well be enhanced if there is an escalation of the price thereof. However, if the withdrawal of the initial acquisition proceedings is found to be fraudulent, the Government would be entitled to adopt proceedings to recover damages in accordance with law, including by

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seeking appropriate reliefs, inter alia, qua the compensation payable in respect of the property in the fresh acquisition proceedings.

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More important, as rightly submitted by Mr. Nadkarni, learned Senior Counsel appearing on behalf of respondent No.9, the interpretation of a statute cannot be based on the consequences that may arise on account thereof.

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This brings us to a consideration of the main question. Should the period between the notification under Section 48 and the date of quashing thereof be excluded while computing the period of two years prescribed by Section 11-A as contended by Mr. Dessai ? This question must be answered in the negative in view of the judgments of the Supreme Court relied upon by the learned Advocate General.

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In Ravi Khullar v. Union of India, (2007) 5 SCC 231 , Supreme Court in paragraphs 53, 54, 55, 56 and 60 held thus :

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“ 53. Learned counsel for the appellants on the other hand contended that Section 11-A of the Act

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does not provide for extension of time to make an award or condonation of delay in making the award. Though it provides for exclusion of the period during which any action or proceeding to be taken in pursuance of the declaration is stayed by an order of the court, it does not exclude the time taken for obtaining a certified copy of the judgment or order vacating or having the effect of vacating the order of stay. He further submitted that the Land Acquisition Collector was a party in the writ petition and had, therefore, knowledge of the fact that the writ petition had been dismissed which resulted in vacation of the interim order of status quo. In the absence of any provision in the Land Acquisition Act for exclusion of time taken to obtain a certified copy of the judgment of the High Court, the Land Acquisition Collector, ought to have proceeded to make the award having come to know that the writ petition filed by the appellant had been rejected by the High Court.

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54. In the matter of computing the period of limitation three situations may be visualised, namely, ( a ) where the Limitation Act applies by its own force; ( b ) where the provisions of the Limitation Act with or without modifications are made applicable to a special statute; and ( c ) where the special statute itself

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prescribes the period of limitation and provides for extension of time and/or condonation of delay. The instant case is not one which is governed by the provisions of the Limitation Act. The Land Acquisition Collector in making an award does not act as a court within the meaning of the Limitation Act. It is also clear from the provisions of the Land Acquisition Act that the provisions of the Limitation Act have not been made applicable to proceedings under the Land Acquisition Act in the matter of making an award under Section 11-A of the Act. However, Section 11-A of the Act does provide a period of limitation within which the Collector shall make his award. The Explanation thereto also provides for exclusion of the period during which any action or proceeding to be taken in pursuance of the declaration is stayed by an order of a court. Such being the provision, there is no scope for importing into Section 11-A of the Land Acquisition Act the provisions of Section 12 of the Limitation Act. The application of Section 12 of the Limitation Act is also confined to matters enumerated therein. The time taken for obtaining a certified copy of the judgment is excluded because a certified copy is required to be filed while preferring an appeal/revision/review, etc. challenging the impugned order. Thus a court is not

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permitted to read into Section 11-A of the Act a provision for exclusion of time taken to obtain a certified copy of the judgment and order. The Court has, therefore, no option but to compute the period of limitation for making an award in accordance with the provisions of Section 11-A of the Act after excluding such period as can be excluded under the Explanation to Section 11-A of the Act.

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55. Our conclusion finds support from the scheme of the Land Acquisition Act itself. Section 11-A of the Act was inserted by Act 68 of 1984 with effect from 24-9-1984. Similarly, Section 28-A was also inserted by the Amendment Act of 1984 with effect from the same date. In Section 28-A the Act provides for a period of limitation within which an application should be made to the Collector for redetermination of the amount of compensation on the basis of the award of the court. The proviso to sub-section (1) of Section 28-A reads as follows:

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“Provided that in computing the period of three months within which an application to the Collector shall be made under this subsection, the day on which the award was pronounced and the time requisite for obtaining a copy of the award shall be

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excluded.”

56. It will thus be seen that the legislature wherever it considered necessary incorporated by express words the rule incorporated in Section 12 of the Limitation Act. It has done so expressly in Section 28-A of the Act while it has consciously not incorporated this rule in Section 11-A even while providing for exclusion of time under the Explanation. The intendment of the legislature is therefore unambiguous and does not permit the court to read words into Section 11-A of the Act so as to enable it to read Section 12 of the Limitation Act into Section 11-A of the Land Acquisition Act.

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60. In our view the principle laid down in this judgment is of no help to the respondents and if at all it supports the contention of the appellant that the period of limitation prescribed cannot be curtailed by order of the court. As a necessary corollary it cannot be extended contrary to the statutory provisions. We have, therefore, no doubt in holding that so far as the acquisition of the lands belonging to Palam Potteries is concerned, the proceedings lapsed for failure of the Collector to make an award within the prescribed period of limitation under Section 11-A of the Act.” ( emphasis supplied )

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The Supreme Court held that there is no scope for importing into Section 11-A of the Land Acquisition Act the provisions of Section 12 of the Limitation Act. Nor then, absent anything to the contrary, can there be any scope for importing any other provisions of the Limitation Act into the Land Acquisition Act. It would also follow, therefore, that principles analogous to the provisions of the Limitation Act cannot be imported into Section 11-A of the Act. If we were to read into Section 11A the exclusion of the period between the date of issuance of the notification under Section 48 and the date of the same being quashed, we would be reading words into Section 11-A, which is expressly prohibited by the judgment of the Supreme Court. An extension of the period of limitation under Section 11-A would be contrary to the statutory provision.

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In Mohan and another vs. State of Maharashtra and others vs. State of Maharashtra and others, (2007) 9 SCC 431, the petitioners sought to quash an award dated 4th February, 2003. The question was whether the award was illegal in view of Section 11A. The last publication of the declaration under Section 6 was on 28th

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February, 2000 and the award was published on 4th February, 2003 i.e. beyond period of two years. The Supreme Court held the failure to adhere to the time-frame to be fatal to the award, as the provisions of section 11-A are mandatory. It was contended that a corrigendum was issued on 25.1.2003 and that the award dated 4.2.2003 was, therefore, within the time. Rejecting the contention the Supreme Court held thus :

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“ 9. In our opinion under Section 11-A what has to be seen is the date of last publication of the declaration under Section 6, and not any subsequent corrigendum to the said declaration. The only circumstance under which the period between the declaration under Section 6 and the award can be extended is mentioned in the Explanation to Section 11-A which states:

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“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.”

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10. There is no mention in Section 11-A that the period after the publication of the declaration under Section 6 and the publication of any corrigendum to the said declaration has also to be excluded. We will be adding words to the statute if we put such interpretation to Section 11-A, and it is well settled

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that the court should not add or delete words in a statute.”( emphasis supplied )

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By accepting the petitioner's contention we would be doing precisely what the Supreme Court has prohibited, viz. adding words to the statute.

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As we noted earlier, Mr. Dessai submitted that if the period between the date of the issuance of a notification under Section 48(1) and the date of it being set aside, is not excluded while computing the period of two years prescribed in Section 11-A, it would lead to the absurd and drastic consequence of the owners benefiting from their fraudulent acts.

¶214

The purpose of Section 11-A is to lend finality to the acquisition proceedings. The legislative intent behind Section 11-A appears to be to enable a party to know where it stands in respect of its property. The fallacy in Mr. Dessai's argument based on the illustration arises on account of the erroneous presumption that a notification under Section 48 can be held to be bad only on account of the dishonesty of the owner of the land or any other person interested

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therein. There may well be cases where the notification under Section 48 is bad on account of a technicality or on account of lapses on the part of the authorities and for which the owners and others interested in the land are not at all responsible. Further, such lapses may or may not be mala-fide . There is nothing in the Land Acquisition Act or in the judgments of the Supreme Court which suggests that in such situations the substantive right acquired by the owner of the land on account of lapsing of the acquisition proceedings under Section 11A would be denied to him. In such a case, even in equity, there is no reason why the owner of the land ought to be denied the substantive right accrued to him on account of the lapsing of the proceedings for the acquisition of the land.

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This raises another difficulty. In which of the cases should the time be excluded as suggested by Mr. Dessai and in which of the cases should it not. Surely not in a case where the owner is not responsible in any manner whatsoever for the notice under Section 48(1) being bad for any reason. There is no warrant even in equity, much less in law, to read such a provision into Section 11-A. If Mr. Dessai's submission is accepted, the Court would have to further read

¶219

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into Section 11-A, the circumstances or cases in which the said period ought to be excluded and the circumstances in which it ought not to be excluded. This would require the Court to virtually rewrite elaborately the explanation to Section 11-A, if not Section 11-A itself, which is not permissible. These clearly are matters for the legislature to decide and not for the Courts.

¶221

Mr. Dessai, relied upon paragraphs 19 to 29 of the judgment of the Supreme Court in Rajinder Singh Bhatti and others V/s State of Haryana and other (2009) 11 SCC 480. The Supreme Court held that Section 11-A and the consequence provided therein viz. the lapse of the acquisition proceedings in the event of the award not having been made within a period of two years from the date of the publication of the declaration under section 6 is entirely distinct and different from the decision that the Government may take for withdrawal from the acquisition under section 48(1), provided the possession has not been taken. It was held that the statutory lapse of acquisition under section 11-A as a result of non-grant of approval of the proposed award by the State Government or for any other reason would not tantamount to withdrawal from the acquisition by the State

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Government as contemplated under section 48(1). Therefore, no claim for compensation could be made under section 48(2). In paragraph 27, the Supreme Court held that the term 'withdraw' under section 48 is indicative of the voluntarily and conscious decision of the Government for withdrawal from the acquisition which is entirely different from the statutory lapse under section 11-A. The object of section 11-A, it was held is to arrest delay in making an award. The earlier decision of the Supreme Court in Abdul Majeed Sahib V/s District Collector (1997)1 SCC 297 was referred to, to indicate the difference between the statutory lapse under section 11-A and the withdrawal of the notification by a voluntarily act on the part of the State under section 48(1). In that case, the Government did not approve the proposed award. The Supreme Court held that the Collector therefore could not have made the award and in fact did not do so. As a result thereof, the acquisition proceeding lapsed in view of section 11-A. The same would not amount to withdrawal from the acquisition by the Government under section 48(1).

¶225

It is difficult to see how the judgment assuming any answer on the objections raised on behalf of the respondents. The question did

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not arise before the Supreme Court. The appellant therein had made a claim for damages under section 48(2) on the erroneous presumption that the lapse of the acquisition proceedings under section 11-A constituted a withdrawal from the acquisition proceedings under section 48(1). It is for this reason that the Supreme Court explained the difference between sections 11-A and 48.

¶229

In view of the judgment of the Supreme Court relied upon on behalf of the respondents, we find that the emphasis under section 11-A is the completion of the process upto the making of an award within a period of two years. If this is not done, it results in the entire acquisition lapsing. Indeed, as the learned Assistant Solicitor General submitted, the entire acquisition proceedings including the notification under sections 4 and 6 stand withdrawn if the award is not made within a period of two years. In that event, the entire acquisition proceedings lapse irrespective of why the process was not completed in two years – negligence, mere delay on account of inaction or due to a positive act including the withdrawal under section 48(1). The effect is the same namely non completion of the process of the acquisition within the time stipulated in section 11-A.

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Mr. Dessai has submitted that there being no provisions in the Act for a situation such as the one in this petition, the Court ought to fill in the lacuna. Even assuming, it would normally be open to us to do so, in view of the judgments of the Supreme Court relied upon on behalf of the respondents, we cannot do so.

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The acquisition proceedings having lapsed even if the impugned notification under Section 48 is quashed and set aside, it would make no difference to the result of the object sought to be achieved in this petition viz. the acquisition of the said property pursuant to the said acquisition proceedings. The petition has, therefore, become infructuous. The other questions would be purely academic, as it would make no difference in the ultimate analysis even if the petitioner was to succeed.

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