Citation Codes

Equivalent Citations

citation codes

Case Number

Writ Appeal No. 1033 of 1988 and W.P Nos. 2370 & 4665 of 1988*

Attorney(S)

V.V.S.Rao
R.Subba Rao
P.V.R.Sharma
N.S.Bhaskara Rao
M.Venkatesvara Rao
M.V.Ramana Reddy
G.Dharma Rao

Judges

M.N Rao
S.V Maruthi, JJ.

Acts

Sec. 48(1) of the Bihar and Orissa Co-operative Societies Act, 1935. Categories (a) to (e) of sub-section (1) of Section 48
Section 6 invoking the urgency provision in Section 17(4)
Section 6(1) 'and the Explanation to Sec. 11.A
4(1) notification. Sub-section (2) of Sec. 6
section 4(1) of the Land Acquisition Act
11 to S. 3-D of the U.P. Sales Tax Act
LAND ACQUISITION AMENDMENT ACT 1984
Sec. 21 of the General Clauses Act
section 4(1), the Land Acquisition
clauses (a) to (e) of sub-section (1).
Section 4(1). Sub-section (2)
sub-section (1) of Sec. 5-A.
sub-section (1) of S. 48
Section 6(1)
section 4(1)

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Smart Summary

Structured Summary of the Court Opinion (M. N. Rao, J.)

Factual and Procedural Background

The Andhra Pradesh Industrial Infrastructure Corporation Limited (APPIIC), a State Government concern, filed Writ Appeal No. 1033 of 1988 against an order of a learned single Judge in Writ Petition No. 1700 of 1987. Twenty-six land-owners, claiming to be small farmers, had challenged the legality of a notification issued under section 4(1) of the Land Acquisition Act (G.O. Rt. No. 1281 dated 16-12-1985, published in the Gazette on 3-1-1986) proposing acquisition of 148.34 acres in Pera-maluru Mandal, Krishna District, for extension of Auto Nagar near Vijayawada. The learned single Judge allowed the writ petition on the basis that the substance of the notification under section 4(1) had not been published in the locality, because no counter-affidavit had been filed by the State in those writ proceedings. APPIIC obtained leave to appeal as it was not a party to the writ petition; a counter-affidavit was later filed in the appeal denying the petitioners' contentions and asserting publication compliance. Several other related writ petitions were consolidated for common disposal. Interim orders in five writ petitions restrained dispossession; awards were passed only in respect of a small portion (14.85 cents) and no award had been passed in respect of land covered by the five writ petitions at the time of this judgment.

Legal Issues Presented

Whether the notification under section 4(1) was invalid for non-publication of the substance of the notification in the locality within the prescribed period.
Whether the declaration under section 6(1) was published within one year from the date of the section 4(1) notification (i.e., whether the date of local publication of the declaration was within the one-year limit).
Whether the Land Acquisition Officer, in conducting the enquiry under section 5-A, acted mechanically without applying his mind and without giving reasons.
Whether lands belonging to small farmers were not liable to be acquired (relying on a U.O. Note dated 7-5-87) and whether that exemption applied to these proceedings.
Whether the Government had power to withdraw part of the notified land from acquisition proceedings and, if so, whether the withdrawal was arbitrary or discriminatory in the present case.
Whether the entire acquisition proceedings had lapsed by virtue of section 11-A because no award was made within two years from the date of publication of the declaration under section 6.

Arguments of the Parties

Writ Petitioners' Arguments

The declaration under section 6(1) was not published within one year from the date of the section 4(1) notification.
The Land Acquisition Officer who conducted the enquiry under section 5-A acted mechanically without applying his mind and without giving any reasons.
The petitioners, being small farmers, were not liable to have their land acquired.
The Government's withdrawal of part of the acquisition proposals while continuing proceedings as to other portions was arbitrary and discriminatory.
The entire proceedings have lapsed under section 11-A as no award was made within two years from the date of publication of the declaration under section 6.

Appellant / State / APPIIC Arguments (as presented in the opinion)

In a counter-affidavit filed in the appeal, the State and APPIIC denied the writ petitioners' contentions and specifically asserted that the section 4(1) notification had been published in newspapers and that the substance of the notification had been published in the locality on 3-2-1986.
The appellant produced record to substantiate publication in the locality within the prescribed period of forty days for the section 4(1) notification.
Regarding section 5-A objections, it was argued (through production of file material) that the Land Acquisition Officer had considered objections of land-owners and the requisitioning department and had recommended withdrawal for certain parcels; the L.A. Officer did not surrender discretion to the requisitioning department.
On the point of partial withdrawal, the State/ APPIIC contended there was no discrimination and that the exclusions were for legally sustainable reasons.
On section 11-A, Shri R. Subba Rao argued that interim stay orders prevented the Land Acquisition Officer from making the award and therefore the petitioners could not rely on section 11-A to claim lapse.

Third Party / Automobile Technicians' Association Submission (as recorded)

Counsel for the Automobile Technicians' Association argued that the Division Bench view in J. Subba Rao v. The Collector (regarding Explanation-1 to section 6(1)) should be followed because the language of Explanation-1 to section 6(1) and the Explanation to section 11-A are couched in similar phraseology. The Court did not accept this contention and distinguished the Division Bench decision.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Bai Malimabu v. State of Gujarat (Supreme Court)	After the Collector submits a report to the State Government under section 5-A, the law does not require any further opportunity to be given to objectors; it is for the Government to consider the Collector's report and act.	The court relied on this authority to reject the petitioners' contention that objectors were entitled to further opportunity after the Collector's report; used it to support interpretation of section 5-A and to uphold that the Collector's role is recommendatory.
Sreenivasa Shenoy v. State, AIR 1968 Kerala 325	Held (by Kerala High Court) that it is not open to the Government to withdraw any part of the land scheduled to the declaration (as cited by petitioners).	The court expressly disagreed with this ruling, holding that it did not lay down the correct law and that the State has power to withdraw part of notified land subject to statutory limitations.
S. Bavajan Sahib v. State (Kerala High Court)	Interpretation that the Explanation to the relevant section excludes only stays of proceedings contemplated by sections 7 to 10; a stay only against taking possession (post-award) does not extend the period for passing award.	The court agreed with this reasoning and applied it to hold that the interim stay (which restrained dispossession) did not operate to exclude time for purposes of section 11-A's two-year limit.
J. Subba Rao v. The Collector, East Godavari, (1990) 1 LS (AP) 247	A Division Bench had interpreted Explanation-1 to section 6(1) broadly to exclude the period of a stay of dispossession from computation under section 6(1).	The court distinguished and declined to follow this Division Bench view insofar as it was urged to apply to Explanation to section 11-A, reasoning that the contexts differed and the Division Bench decision was not applicable to the explanation in section 11-A.
Bihta Co-operative Development and Cane Marketing Union Ltd. v. Bank of Bihar (Supreme Court)	Explanation to a section must be read so as to harmonise with and clear up ambiguity in the main section and should not be construed so as to widen the ambit of the section.	The court invoked this principle to support a narrow and purposive construction of the Explanation to section 11-A, holding explanations should be read strictly with reference to the enacting clause.
Hiralal Ratan Lal v. S.T.O.	Where an Explanation appears to widen the scope of the main section, courts must determine legislative intent; rules of statutory construction apply when legislative intent is unclear.	The court cited this authority to emphasize statutory interpretation principles and to justify a strict reading of the Explanation to section 11-A in light of legislative intent.
Kaliyappan v. State of Kerala (Supreme Court)	Noted that section 11-A was introduced because of abnormal delays in making awards; legislative history shows purpose was to impose a two-year limit.	The court relied on this observation and the Statement of Objects and Reasons to underline the peremptory, time-bound nature of section 11-A and to support the conclusion that the proceedings had lapsed when the two-year period expired.

Court's Reasoning and Analysis

The court addressed each principal contention in turn and grounded its conclusions in statutory interpretation, factual record and cited precedents:

Publication and section 6(1) one-year limitation: The court examined the publication dates. It found there was a single section 4(1) notification published in the Gazette on 3-1-86 with publication in newspapers and a public notice of the substance in the locality on 3-2-86. The declaration under section 6(1) appeared in the Gazette on 31-1-87 and in newspapers on 1-2-87. The petitioners asserted the local publication of the declaration was on 7-3-87 (which would exceed the one-year limit). The court reviewed connected writ petitions and file endorsements and found that the local publication date had originally been 1-2-87 and that later over-writing indicated a change to 7-3-87; the court concluded that the substance of the declaration was in fact published in the locality on 1-2-87, within one year of the 3-2-86 local publication of the section 4(1) notification. Accordingly, the one-year limitation in section 6(1) did not invalidate the declaration.

Section 5-A objections and L.A. Officer's role: The court parsed section 5-A and observed that the Collector's duty is to afford opportunity to objectors, make enquiry if necessary, and submit reports and recommendations to the appropriate Government; the Collector has no power to decide the objections—the appropriate Government decides and its decision is final. Relying on the Supreme Court's ruling in Bai Malimabu, the court rejected the petitioners' claim that objectors were entitled to further opportunity after submission of the Collector's report. The court reviewed the file produced by the appellant and found the Land Acquisition Officer had considered objections of both land-owners and the requisitioning department, had recommended withdrawal for three small parcels (total 5.35 acres), and had thus complied with the mandatory requirements of section 5-A. The allegation that the L.A. Officer surrendered discretion to the requisitioning department was not substantiated by the record.

Small farmers / U.O. Note: The petitioners relied on a U.O. Note dated 7-5-87 (requiring that lands of small farmers not be acquired unless inevitable). The court noted that the section 4(1) notification in this case was published on 3-1-86, which was before the U.O. Note; therefore the court found it unnecessary to decide whether the Government had considered inevitability under that U.O. Note and rejected the contention based on the timing.

Partial withdrawal and alleged discrimination: The court first held as a matter of principle that the Government has power to withdraw part of the notified land from acquisition proceedings, subject to the restrictions in section 48(1) (notably matters covered by section 36 and cases where possession has been taken). The court disagreed with the Kerala High Court ruling in Sreenivasa Shenoy which had held the Government could not withdraw part of the scheduled land. On the facts, however, the court examined the record after counsel produced it and found no government orders or competent recommendations relating to withdrawal of 33.83 acres (i.e., 39.18 acres alleged withdrawn minus 5.35 acres where requisitioning department agreement was recorded). The absence of any supporting orders or notifications under section 48(1) led the court to conclude that extraneous reasons influenced the Government's exclusion of that portion and that the Government had not placed relevant record before the Court. Because of this absence and the contrived chaos perceived by the court in the record, the court answered the discrimination/arbitrariness point in favour of the writ petitioners as to the excluded 33.83 acres.

Section 11-A lapse and the effect of interim stays: The court considered whether the acquisition proceedings had lapsed under section 11-A, which requires the Collector to make an award within two years from the date of publication of the declaration under section 6 and provides that if no award is made the proceedings lapse. The Explanation to section 11-A excludes from computation any period during which any action or proceeding to be taken pursuant to the declaration is stayed by a court order. The court analyzed the meaning of "any action or proceeding" in the context of the Collector's duty to make an award and the sequence of actions under the Act. It identified three situations in which possession can be taken (post-award under section 16; in case of urgency under section 17(1) after notice period; or by invoking urgency under section 17(4) dispensing with section 5-A). The court concluded that taking of possession is not an action or proceeding that is "pursuant to the declaration under section 6" in the sense that would attract the Explanation to section 11-A. The court adopted the reasoning of a Kerala High Court decision (S. Bavajan Sahib v. State) that the Explanation contemplates actions between declaration and award (sections 7 to 10), and that a stay merely against taking possession (a post-award operation) does not extend the two-year period. The court rejected the State's argument that interim stay orders prevented the Land Acquisition Officer from making the award; it found there was nothing to prevent the L.A. Officer from completing award proceedings and that no attempt had been made by the L.A. Officer to seek clarification or vacation of the stay to enable award proceedings. The court further applied principles from Supreme Court authorities (including how explanations should be harmonised with and not widen the main section) and the legislative history behind section 11-A to conclude that the two-year limit is peremptory save for periods covered by the Explanation, which must be strictly construed. Accordingly, the court held that the proceedings covered by the section 4(1) notification had lapsed by operation of section 11-A.

Overall approach to remedies and findings: Because the court considered the merits of the challenges and found against the State on points relating to partial withdrawal and lapse under section 11-A (and having already answered the publication/one-year point against the petitioners), the court dismissed the writ appeal, allowed the writ petition(s), and quashed the section 4(1) notification for reasons other than the procedural default relied upon by the learned single Judge (i.e., the court did not base its decision solely on the absence of a counter-affidavit at the single Judge stage).

Holding and Implications

Holding: Writ Appeal No. 1033 of 1988 is dismissed; the related writ petitions are allowed; the Section 4(1) notification issued in G.O. Rt. No. 1281 dated 16-12-85 (published in the Gazette on 3-1-86) is quashed.

Immediate consequences and implications:

The writ petitions challenging the acquisition (including W.P. No. 1700 of 1987 and other connected petitions) succeed on grounds set out in the reasoning: (a) the court found the declaration was published within the one-year limit, (b) the Land Acquisition Officer complied with section 5-A procedural requirements, (c) the Government's claimed withdrawals lacked record and were tainted by extraneous considerations as to a substantial excluded portion, and (d) the acquisition proceedings have lapsed under section 11-A because no award was made within two years from the date of publication of the declaration and the stay orders did not operate to extend that two-year period for the purposes of section 11-A's Explanation.
The writ appeal by APPIIC is dismissed and the writ petitions are allowed; the quashing of the section 4(1) notification is the direct operative consequence for the parties.
There shall be no order as to costs.
The opinion applies statutory interpretation principles and relies on prior case law for construing the Collector's role under section 5-A and the limited ambit of explanations to time-limited provisions like section 11-A; however, the Court did not purport to lay down a novel legal rule or state that a new precedent was created. The decision is an application of existing statutory interpretation principles and precedent to the facts before the Court.

Order accordingly.

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The Andhra Pradesh Industrial Infrastructure Corporation Ltd. And Etc. v. Chalasani Vijaya Lakshmi And Others, Etc.

ORDER M.N. Rao, J.

1. Commonality of law and facts are the reasons that induce us to dispose of all these matters by this common judgment. Writ Appeal No. 1033 of 1988 was filed by the Andhra Pradesh Industrial Infrastructure Corporation Limited, Hyderabad, (for short 'the APPIC'), a State Government concern, against the judgment of a learned single Judge in Writ Petition No. 1700 of 1987 allowing the writ petition filed by twenty-six land-owners claiming themselves to be small farmers challenging the legality of the notification issued under section 4(1) of the Land Acquisition Act on 16-12-1985 in GO Rt. No. 1281 published in the Gaxette on 3-1-1986 proposing to acquire Acs. 148.34 of land situate in Pera-maluru Mandal, Krishna District, for the purpose of extension of the Auto Nagar, near Vijayawada. The legality of the 4(1) notification was challenged on grounds inter alia that the substance of the notification was not published in the locality, the draft declaration under section 6 was not issued within one year from the date of the notification issued under section 4(1), the Land Acquisition Officer who conducted the enquiry under section 5-A had not passed a reasoned order, the lands belonging to small farmers could not be acquired and the very acquisition itself was not bona fide. No counter was filed by the State Government when the writ petition came up for hearing before the learned Judge. Therefore, treating one of the grounds, namely, non-publication of the substance of the notification in the locality under section 4(1) as uncontroverted, the writ petition was allowed and section 4(1) notification was quashed. The APPIIC, which was the beneficiary under the acquisition proceedings as the land proposed to be acquired was to be entrusted to it for the purpose of allotment to individual members of the Automobile Technicians' Association, Vijayawada, filed Writ Appeal No. 1033 of 1988 after obtaining leave of the Court as it was not a party to the writ proceedings. A counter-affidavit was filed at the stage of the writ appeal denying the pleas taken in the writ petition. A specific plea was taken in the counter-affidavit that on 3-2-1986 the notification issued under section 4(1) was published in the newspapers and the substnce of the same was also published in the locality. At the time of the hearing the record was produced before us by Shri R. Subba Rao, the learned counsel for the appellant, which substantiates the assertion as regards the publication of the notification in the locality under section 4(1) within the prescribed period of forty days. In the normal course, the writ appeal should be allowed and the matter remitted to a learned single judge for disposal on merits in accordance with law but in the particular circumstances we have not done so. Shri V. V. S. Rao, learned counsel for the writ petitioners, has submitted that the conclusion reached by the learned single judge as to the invalidity of the notification issued under section 4(1) can also be supported on other grounds which he seeks to urge and, therefore, no remand is necessary. Other writ petitions challenging the legality of the same notification also are listed for disposal before us along with the writ appeal. We are, therefore, inclined to consider the contentions raised by both sides as to the legality of S. 4(1) notifiction.

2. Out of the total extent of Acs. 148.34 cents, an extent of Acs. 39.18 cents was withdrawn from the acquisition proceedings at the request of the Requisitioning Department and this was specifically mentioned by the Land Acquisition Officer in the award. Five writ petitions were filed in this Court --- Writ Petitions Nos. 1700 of 1987, 2370, 3073 and 4665 of 1988 and 1553 of 1989 -- by the land owners affected by the notification challenging the legality of the acquisition proceedings. The total extent of the land covered by these five writ petitions is Acs. 94.31 cents. Interim orders were issued by this Court in these five writ petitions directing the Land Acquisition Officer not to dispossess the petitioners therein if they were not already dispossessed. The Land Acquisition Officer, therefore, passed the award on 6-3-1989 only in respect of Acs. 14.85 cents of land. Till now no award has been passed in respect of the lands covered by these writ petitions.

3. Shri M. V. Rarnana Reddy and Shri V. V. S. Rao, learned counsel for the writ petitioners have urged the following points in support of their plea that S. 4(1) notification is invalid :

(1) The declaration under Sec. 6(1) was not published within one year from the date of S. 4(1) notification.

(2) The Land Acquisition Officer who conducted the enquiry under Sec. 5-A has acted mechanically without applying his mind and without giving any reasons.

(3) The land belonging to the petitioners was not liable to be acquired as the petitioners are small farmers.

(4) The action of the Government in withdrawing the land acquisition proposals in regard to certain extent and allowing the proceedings to continue in respect of the remaining land is arbitrary and discriminatory.

(5) The entire proceedings have lapsed by virtue of Sec. 11.A as no award has been made within two years from the date of the publication of the declartion under Sec. 6. Re. (1):-- Section 4 of the Act concerns itself with publication of preliminary notification and the procedure to be followed pursuant to the notification. Section 5-A confers power on persons interested in the land notified under Sec. 4(1) to put forward objections to the acquisition of the land. Section 6 lays down that when the appropriate Government is satisfied after considering the objections raised under Sec. 5-A as to whether the notified land is needed for a public purpose, it has to make a declartion to that effect under subsection (1). The period of limitation within which the declaration under Sec. 6(1) should be issued is incorporated in the proviso. Clause (ii) to the proviso to sub-section (I) says that no declaration shall be made after the expiry of one year from the date of the publication of the 4(1) notification. Sub-section (2) of Sec. 6 says that every declaration shall be published in the official gazette and in two daily newspapers circulating in the locality in which the land is situate and the Collector shall also cause public notice of the substance of such declaration in the said locality and the date on which the last of the publication of public notice was given shall be construed as the

"date of the publication of the declaration."

4. As already noticed there was only one notification under Sec. 4(1) covering the entire land of Ac. 148.34 cents which was issued in G. O. Rt, No. 1281 dated 16-12-85 and the same was published in the A. P. Gazette on 3-1-86. The publication of the notification in the newspapers and the public notice of the substance of the notification in the locality was made on 3-2-86 under Sec. 4(1). The declaration under Sec. 6(1) was published in the Gazette on 31-1-87. On 1-2-87, the declaration was published in the newspapers. Public notice of the substance of declaration, according to the petitioners was made on 7-3-87. The question is whether it was made on 7-3-87 or 1-2-87. If the date was 7-3-87, it would be in violation of the mandatory requirement of the limitation of one year prescribed in clause (ii) of the proviso to subsection (I) of Section 6. If the date was 1-2-87 the declaration is saved as it would be within the period of one year reckoning from 3-2-86. It is true that in the counter-affidavit it is mentioned that the substance of the declaration was published in the locality on 7-3-87. That averment was made evidently to save the proceedings from the attack based upon Sec. 11.A which obligates that within two years from the date of the publication of the declaration under Section 6 if no award is made the entire proceedings shall lapse. The award covering Ac. 14-85 cents was made on 6-3-89. If the date of public notice of the declaration under Sec. 6(2) was 7-3-87 the acquisition proceedings could be saved from being struck down under Sec, 11. A. Four writ petitions -- W. P. Nos. 8916, 11677, 11678 and 9526 of 1989 -- in which the above point concerning the application of Sec. 11.A was raised were heard by us on 17-11-92 and an oral order was passed by one of us (M. N. Rao, J.) allowing the writ petitioners recording a finding after examining the file placed before us which contained the endorsement regarding the publication of the substance of the declaration in the locality:

"The date originally mentioned was 1-2-87 and the numericals 7 (seven) and 3 (three) were over-written on 1 (one) and 2 (two). The over-writing could not be seriously disputed by the learned counsel for the respondents. It is, therefore, clear that the substance of the local publication was in fact made only on 1-2-87."

5. The next day i.e., 18-11-92 we have heard these cases. The learned counsel for the petitioners have urged strongly that we should accept the averment in the counter to the effect that the date when the local publication was made was 7-3-87 and on that ground uphold the present objection based upon clause (ii) to the proviso to sub-section (1) of section 6. We do not agree. In the aforesaid batch of cases we have rejected the contention of the Government that on 7-3-87 the local publication was made. We found that the concerned Mandal Revenue Inspector had altered the date 1-2-87 as 7-3-87. We recorded a categorical finding that the substance of the declaration was made in the locality on 1-2-87. We have also held that there is no supporting material whatsoever to indicate that the public notice in the locality was issued on 7-3-87. Following the aforesaid finding recorded by us in the connected batch of writ petitions we hold that the relevant date as to the publication of substance of the declaration in the locality was 1-2-87 which was within the prescribed period of one year under S. 6(1). The point is accordingly answered against the writ petitioners.

Re. (2):--

6. Section 5-A incorporates the procedure concerning hearing of objections after the notification was issued under section 4(1). Sub-section (2) obligates that every objection shall be made to the Collector in writing and the Collector shall afford an opportunity to the objectors of being heard in person or by an advocates and after hearing all the objections and after making such further enquiry as he thinks necessary.

"either make a report in respect of the land which has been notified under Sec. 4, subsection (1), or make different reports in respect of different parcels of such land to the appropriate Government containing his recommendations on the objections together with the record of proceedings held by him, for the decision of that Government. The decision of the appropriate Government on the objections shall be final."

From a reading of sub-section (2) it will be clear that the duty enjoined upon the Collector was only to afford an opportunity to the objectors and make any further enquiry if he considered necessary and thereafter he has to submit the report to the Government along with his recommendations on the objections. He has no power to take any decision; that power is conferred on the appropriate Government whose decision shall be final.

7. Interpreting the scope of S. 5-A, the Supreme Court in Bai Malimabu v. State of Gujarat, , ruled :

"It was not the requirement of the law to give any further opportunity after a report was made to the State Government. It is the function of the State Government to consider the report of the Collector and proceed further in the matter as they think fit and proper to do."

The contention that after the report was submitted to the Slate Government the objectors were entitled to a further opportunity to make (heir submissions vis-a-vis the report submitted by the Collector was rejected by the Supreme Court.

8. We have have perused the file produced by the learned counsel for the appellant. We do not find any truth in the allegation levelled by the petitioners that the Land Acuisition Officer has surrendered his discretion to the Requisitioning Department as the latter is headed by a senior I.A.S. officer in the super time scale holding a rank equivalent toi Secretary to Government. The Vice-Chairman and Managing Director of the A.P.I.I.C., had no objection for withdrawal of acquisition proceedings in respect of the following three persons :

Name S. No. Extent

1) Smt. Sarojini Devi for establish-ment of rerolling industry whose SS1 is valid up to 21-11-86 190/1 to 5 Ac. 2-05 cents

2) Smt. Sarojini Devi owner who leased out the land to Sri T.V. Krishna Rao for establishment of Sri Krishna Pharmaceutical whose SS1 is valid up to 22-11-86 203/4 B1 Ac. 2-32 cents

3) M/s.

Venkateswara Mini Rice Dall and Flour Mil! whose SSI re-gistration expired on 25-4-86.

Ac. 0-98 cents Total Extent :

Ac. 5-35 cents The Land Acquisition Officer has considered the objections of both the land-owners as well as the requisitioning department as both sets of persons are interested in the land and, therefore, are entitled to submit objections under sub-section (1) of Sec. 5-A. The Land Acquisition Officer agreed with the suggestion of the requisitioning department for withdrawal of the proceedings in respect of the aforesaid three persons and accordingly he recommended to the Government for acquisition of the remaining land. He thus complied fully with the mandatory requirement of Section 5-A. The point is accordingly answered against the writ petitioners.

Re. (3):-- The submission made before us rather haltingly is that all the petitioners are small farmers and, therefore, according to the U.O. Note 984/K2/87-1 dated 7-5-87 the lands belonging to small farmers should not be acquired for any public purpose unless it is inevitable. As the 4(1) notification in this case was published in the Gazette on 3-1-86 long before the aforesaid U.O. Note was issued, it is not necessary for us to go into the question whether the Government had considered the question whether the acquisition was inevitable. We, therefore, reject the contention.

Re. (4):-- S/Sri M.V. Ramana Reddy and Subba Rao learned counsel contend that when once the State Government issues notification under S.4(1) it has no power to withdraw a part of the nolified land from the acquisition proceedings. If it is to be held that the Government has such a power, it is obligatory on the part of the Government to satisfy this Court the reasons that impelled to withdraw a part of the land from the acquisition proceedings and the reasons should stand judicial scrutiny. As a proposition of law we are of the view that the State Government has the power to withdraw a part of the notified land from the acquisition proceedings. The ruling of the Kerala High Court in Sreenivasa Shenoy v. State, AIR 1968 Kerala 325 at p. 329, cited by the learned counsel, in our considered opinion, does not lay down the correct law. In the Kerala case an extent of Ac. 1-78 cents was nolified for acquisition for a public purpose viz., for construction of a colony for Harijans. It appears, on account of an unusual sea erosion twenty fishermen families living in the village were rendered homeless and so they trespassed into the land notified for acquisilion. After hearing the objections from the land-owners the Government withdrew Ac. 01-02 cents of land from the acquisition proceedings and confined the proceedings to 0.76 cents for housing the ttwenty families of fishermen. It was contended before the Division Bench of Kerala High Court that confining acquisition proceedings to 0.76 cents of land for housing the twenty families of fishermen was different from the original purpose viz., construction of housing colony for Harijans on the entire Ac. 1-78 cents of land. This contention was accepted by the Division Bench taking the view:

".....it is not open to the Government to withdraw from the acquisition any part of the land scheduled to the declaration."

9. The only two exception's on the power of the Government under the Act to withdraw from the acquisition proceedings are: (1) Matters covered by Section 36 (which deals with the power of the Collector to enter and take possession of the land); and (2) Cases in which possession has already been taken, incorporating these two limitations S.48(1) clearly says that subject to these the Government shall be at liberty to withdraw from the acquisition proceedings. As the authority notifying the acquisition proceedings, the Government has the power to withdraw from the proceedings subject of course to the restrictions imposed by Section 48(1). But for these two limitations engrafted in Section 48(1) the situation would have been governed by Sec. 21 of the General Clauses Act under which an authority which has power to make a notification has the power to revoke it. Therefore, with great respect we express our inability to agree with the view taken by the Kerala High Court.

10. The above discussion does not conclude the question at issue. It is the plea of the petitioners that certain landowners have succeeded in their manipulations to get their lands excluded from the purview of the acquisition proceedings while others are compelled to part with their lands. This attitude of the Government, according to the learned counsel for the petitioners is clearly discriminatory apart from being arbitrary. Shri Subba Rao appearing for both the A.P.I.I.C. and the State Government has strongly urged that there is no truth in the allegation and that for reasons which are clearly sustainable in law certain lands have been excluded from the acquisition proceedings.

11. In order to satisfy ourselves as to the correct factual position we have asked Shri Subba Rao to produce the entire record before us. As already noticed out of the total extent of Ac. 148.34 cents an extent of Ac.39-18 cents was withdrawn from the acquisition proceedings. In the award dated 6-3-89 in Rc.B.3028/85, the Land Acquisition Officer has stated that the extent of Ac. 39-18 cents was:

"withdrawn at the request of the requisitioning department."

We have very carefully examined the entire record but to our dismay we have found not a single order relatable to the alleged withdrawal proceedings. When we have asked Shri Subba Rao as to the basis on which the Land Acquisition Officer has mentioned in the award that Ac. 39-18 cents were withdrawn from the acquisition proceedings at the request of the requisitioning department he expressed his inability to produce any orders, of the Government relatable to the withdrawal proceedings slating that all the available documents he has placed before this Court. The record discloses deplorable state of affairs. It was only in respect of Ac.05-35 cents of the notified land the requisitioning department has agreed for exclusion from the acquisition proceedings. As regards the rest of the excluded land -- Ac.33.83 cents (Ac. 39-18 minus Ac.5-35 cents) -- there are no orders. No competent authority has recommended for withdrawal nor the Government issued the requisite notification in that regard under Sec. 48(1). A picture is sought to be portrayed before us as if the actions of the Government arc well supported by appropriate orders. What we discern is not the uncommon smugness of the bureaucracy as to the assumed validity of their actions, but a transparently contrived chaos without any trace of evidence as to how, at whose instance and for what reasons the extent of Ac.33-83 was excluded from the acquisition proceedings. A proper enquiry into the whole transac-tion -- we think it is very necessary - might disclose more details exposing the extent of the maladministration. We, therefore, are constrained to conclude that extraneous reasons weighed with the Government in excluding Ac.33-83 cents from the acquisition proceedings and the vitiating factors are so lethal -- we are not unjustified in this inference -- that the Government have chosen not to place the relevant record before the Court. We, therefore, answer this point in favour of the writ petitioners.

Re.(5):--

12. The question for consideration is whether the acquisition proceedings have lapsed under Sec. 11.A of the Act?

13. Section 11.A obligates the Collector to make an award under Section 11 within a period of two years from the date of publication of the declaration under Section 6 and if no award is made within that period the entire acquisition proceedings shall lapse. The explanation to the section reads:

"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."

The declaration under Section 6(1) was made on 1-2-87 as found by us while answering point No. 1. Till now no award has been passed. The counsel for the petitioners submit that Section 11.A fully comes into play since the mandatory period of two years from the date of the declaration under Section 6 has elapsed. Countering this contention Shri Subba Rao argues that as the Land Acquisition Officer was disabled from making the award because of the interim orders granted by this Court in W.P. Nos. 1700 of 1987, 2370, 3073 and 4665 of 1988 and 1553 of 1989, it is not open.to the petitioners to raise the plea regarding the applicability of Section 11.A.

14. The interim stay granted by this Court was in the following terms :

"Interim stay of dispossession if the petitioners are not already dispossessed."

Whether the aforesaid stay order granted by this Court has the effect of extending the period of two years prescribed by Section 11.A? If any action or proceedings is to be taken by the Land Acquisition Officer pursuant to the declaration under Sec. 6 and if any Court passes an order staying such action or proceeding, the period covered by the order of stay has to be excluded in computing the two years period prescribed by Section 11. This is what the explanation lays down. We have to, therefore, consider whether taking of possession is an action or proceeding pursuant to the declaration under Section 6. If it is so the explanation is attracted, but not otherwise.

15. Taking of possession under the Act is covered by three situations :

(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 5-A.

16. 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 absolutely 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 Laad Acquisition Officer all these years to move this Court seeking either vacation of stay or clarification as to whether award proceedings could be continued. Dealing with an identical question which fell for consideration before the Kerala High Court in S. Bavajan Sahib v. State, , T. L. Viswanatha Iyer, J. held :

"The explanation states that in computing the period of two years aforesaid, the period during which any action or proceeding to be taken in pursuance of the declaration is stayed by an order of the Court shall be excluded. The period of two years prescribed for the passing of award under S. 11. A. The action or proceeding contemplated by the explanation is therefore any action or proceeding to be taken after the making of the declaration under S. 6 and before the passing of the award under S. 11. Such actions are those contemplated by Ss. 7 to 10. The question of taking possession of the land arises only when the award is passed under S. 16 of the Act, except in cases of urgency covered by S. 17. This is not a case in respect of which S. 17 has been invoked. Therefore the position is that unless there was a stay of the proceedings contemplated by Ss. 7 to 10 or of further proceedings pursuant to the declaration under S. 6, the explanation will not operate so as to extend the period of two years prescribed by S.11.A. 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 S. 6 and passed the award under S. 11 within two years. The explanation to S. 11. A cannot therefore avail the fourth respondent to get extension of the period of two years prescribed by S.11. A."

We entirely agree with this reasoning.

17. In J. Subba Rao v. The Collector, East Godavari, (1990) 1 LS (AP) 247 at p. 248, the scope of explanation-1 to subsection (1) of section 6 was considered by a Division Bench of this Court. Rejecting the contentien that as this Court granted stay of dispossession, the authorities were not prevented from proceeding with the publication of declaration under Section 6 within the time prescribed by clause (i) to the first proviso of sub-section (1) and, therefore, the Explanation-1 which excludes the period covered by an order of stay was inapplicable, the Division Bench held:

"Where taking possession of land is stayed by an order of the Court, the Explanation is satisfied. We see no reason to restrict the plain meaning of the words used in the Explanation and/or to read them as meaning stay of all further proceedings in pursuance of the notification under Section 4. The use of the expression "any" proceeding "action or proceeding" is of significance and must be given its full play."

18. Shri Ramchandra Reddy, learned counsel for one of the respondents -- The Automobile Technicians' Association, Vija-yawada -- has urged that since the language of Explanation-1 to Section 6(1) 'and the Explanation to Sec. 11.A are couched in similar phraseology and the words "action or proceeding" occur in both the view taken by the aforesaid Division Bench must be followed by us. We are not inclined to accept this contention. The view taken by the Division Bench is clearly distinguishable. After the declaration under Section 6(1) possession can be taken invoking the urgency clause in Section 17(4) by dispensing with the enquiry under Section 5-A. If an order staying dispossession is in operation the Land Acquisition Officer will be disabled from taking possession by invoking the urgency clause. Inevitably the conclusion follows that in the computation of the prescribed period, the time during which the order of stay was in operation should be excluded. Situations of this nature, Explanation-1 to Section 6(1), inter alia, intends to safeguard. The view taken by the Division Bench as regards the interpretation of Explanation-1 to S. 6(1) has no application so far as Explanation-1 to Section 11.A is concerned.

19. In Bihta Co-operative Development and Cane Marketing Union Ltd. v. Bank of Bihar, , the Supreme Court held that Explanation to a section.

"must be read so as to harmonise with and clear up any ambiguity in the main section. It should not be so construed as to widen the ambit of the section."

The Supreme Court was considering the effect of the Explanation (I) to Sec. 48(1) of the Bihar and Orissa Co-operative Societies Act, 1935. Categories (a) to (e) of sub-section (1) of Section 48 comprehended certain categories, the disputes concerning whom should be referred to the Registrar of Cooperative Societies. The question was whether the Explanation was intended to cover the categories not comprehended by clauses (a) to (e) of sub-section (1). The Supreme Court after considering the legislative history observed:

"The purpose of the Explanation never was to enlarge the scope of sub-section (1) of S. 48 and the addition of category (e) to that subsection and the inclusion of non-members in the Explanation cannot have that effect."

This three judge Bench decision was approvingly cited by a later larger Bench of four judges of Supreme Court in Hiralal Ratan Lal v. S.T.O. S. III, Kanpur, . In the later case while considering the effect of Explanation 11 to S. 3-D of the U.P. Sales Tax Act the Court ruled :

".....it is clear that if on a true reading of an Explanation it appears that it has widened the scope of the main section, effect must be given to legislative intent notwithstanding the fact that the legislature named that provision as an Explanation. In all these matters the Courts have to find out the true intention of the legislature."

The Court reiterated the well accepted principle of statutory interpretation :

"If the provision is unambiguous and if from that provision, the legislative intent is clear, we need not call into aid the other rules of construction of statutes. The other rules of construction of statutes are called into aid only when the legislative intent is not clear."

The language of Section 11.A is clear, peremptory and unambiguous. This section was inserted by act 68 of 1984 and prior to that there was no provision obligating the Land Acquisition Officer to make the award within a particular time. The Supreme Court adverting to this aspec! in Kaliyappan v. State of Kerala, observed :

"Since in a large number of cases there used to be abnormal delay in making the award, Parliament stepped in and introduced Section 11-A to the Act....."

The Supreme Court also noticed the relevant part in the Statement of Objects and Reasons attached to the Bill introducing the Land Acquisition (Amendment) Act, 1984:

".....the pendency of acquisition proceedings for long periods often causes hardship to the affected parties and renders unrealistic the scale of compensation offered to them..... it is proposed to provide for a period of two years from the date of publication of the declaration under S. 6 of the Act within which the Collector should make his award under the Act. If no award is made within that period, the entire proceedings for the acquisition of the land would lapse."

The language employed in the main enacting clause of Section 11.A 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. Accordingly we hold that the entire proceedings covered by S.4(1) notification have lapsed by virtue of the application of S. 11.A.

20. As we have considered the merits in W.P. 1700 of 87 out of which W.A. 1033 of 88 arises and having regard to our answers to points 4 and 5, the writ appeal is dismissed and the writ petition is allowed for reasons other than those mentioned by the learned single judge (failure to file counter-affidavit leading to the inference that the contentions raised in the affidavit are true since they are not controverted). In view of our answers to point's 4 and 5 all the writ petitions are allowed. The 4(1) notification issued in G.O. Rt. No. 1281 dated 16-12-85 published in the Gazette on 3-1-86 is quashed.

21. There shall be no order as to costs.

22. Order accordingly.

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