N. Kumar, J.

1. In all these writ appeals, the order passed by the learned Single Judge upholding the acquisition proceedings and consequently dismissing the writ petitions are challenged. For the sake of convenience the parties are referred to as they are referred to in the writ petitions.

2. The petitioner Nos.1 to 5 in W.P.No.14391/2006 are the absolute owners of the land in Sy.No.236 measuring 2 acres situated at Rajapura Village, Jigani Hobli Anekal Taluk, Bangalore. Petitioner Nos.6 and 7 in the said writ petition are the absolute owners in Sy.No.68/1 measuring 3 acres 5 guntas situated in the same Village. Similarly, petitioner Nos. 8 to 10 in the writ petition are the absolute owners of the land bearing Sy.No.236 measuring 1 acre 39 guntas as well as Sy.No.237 measuring 30 guntas situated in the same Village. Petitioner Nos. 11 to 13 are the absolute owners of the land in Sy.No.237 measuring 3 acres 18 guntas situated in the same Village. The petitioners in W.P.No.12970/2006 are the absolute owners of the land in Sy.No.235 measuring 4 acres 6 guntas in the said Village.

3. The Government of Karnataka issued a notification under Section 3(1) of the Karnataka Industrial Areas Development Act, 1966 (for short hereinafter referred to as the Act) declaring that the lands bearing various survey numbers in Villages Jigani, Bandenallasandra, Yarandahalli, Kyalasanahalli and Rajapura of Anekal Taluk, Jigani Hobli as industrial area. In all an extent of 988 acres 6 guntas were notified. Subsequently by a notification dated 19.04.1997 one more notification came to be issued under Section 1(3) of the Act making Chapter 7 of the act applicable to the lands which are mentioned in the said notification. One more notification came to be issued under Section 28(1) of the Act notifying the lands which are proposed for acquisition by the Board for industrial development. The petitioners lands as aforesaid were notified for acquisition under the aforesaid notifications.

4. After the issue of the said preliminary notification, the petitioners sold the land to one V. Lakshminarayana through several registered sale deeds dated 07.08.1997 etc. Thereafter a final notification came to be issued in respect of the lands notified under Section 28(4) of the Act on 20.07.1999 as per Annexure D. However in the aforesaid notifications the petitioners lands were not included. On the contrary on 04.07.2000 the second respondent Board issued an endorsement stating that the lands have not been acquired under Section 28(4) of the Act. All the petitioners sold the lands, which were notified for acquisition under different registered sale deeds on 7.8.1997 and thereafter. It is thereafter on 27.04.2002 one more notification came to be issued under Section 28(4) of the Act notifying the lands of the petitioners. The purchasers of the aforesaid lands applied for conversion of the agricultural lands for residential purpose. Conversion orders were issued vide orders as per Annexure-C on 1.9.1998, 29.11.2001, 21.1.2002 and 3.6.2002 in W.A.Nos.3189-3201/2010. The purchasers filed a writ petition in W.P.Nos.26821-26824/2003 challenging the second final notification dated 27.4.2002 on the ground that the Government had no power to issue a second notification. The said writ petitions came to be dismissed on 06.06.2003 on the ground that the purchasers of the land after preliminary notification have no locus standi to challenge the acquisition proceedings. The review petition was filed for reviewing the said order which also came to be dismissed by an order dated 23.08.2006. It is thereafter the petitioners have preferred these writ petitions challenging the acquisition on identical grounds. An ad interim order came to be issued directing the parties to maintain status-quo on 18.09.2006. On 31.03.2006 awards came to be passed and duly published in respect of the aforesaid lands. The same is approved on 31.12.2006. The main ground of attack in these writ petitions was that the Government has no power to issue successive notifications.

5. Relying on the judgment of the Apex Court in the case of The State of Madhya Pradesh And Others Vs. Vishnu Prasad Sharma And Others reported in AIR 1966 SC 1593 [LQ/SC/1966/49] , the learned Single Judge on consideration of the aforesaid contention was of the view that the scheme under the Land Acquisition Act is totally different from the scheme under the Act. In fact the Apex Court also has held that the scheme of acquisition under these two Acts are different and therefore the provisions of the Land Acquisition Act cannot be read into the Act. Therefore, the learned Single Judge held successive notifications under Section 28(4) of the Act is permissible, as such, he upheld the impugned acquisition. The learned Single Judge also dismissed these writ petitions on the ground that much water has flown after the issue of notification. There is inordinate delay in the petitioners approaching the Court challenging the acquisition. In the meanwhile the layout has been formed, sites are allotted to various industrialists, third party interests have set in and therefore, he was of the view, this is not a case where he should interfere under Article 226 of the Constitution. Aggrieved by the said order dated 02.07.2010 the petitioners preferred writ appeals in W.A.Nos.2921-2933/2010 challenging the order in W.P.No.14391/2006 and W.A.Nos.2916-2920/2010 challenging the order in W.P.No.12970/2006 contending that insofar as their lands are concerned, possession is not taken, layout is not formed, sites are not allotted, no third party interests have crept in and no compensation is also paid. In those circumstances, in the said writ appeals an opportunity was reserved to the petitioners to seek review of the order of the learned Single Judge and therefore, the appeals came to be dismissed by an order dated 29.07.2010 reserving the said liberty. Accordingly Review Petition Nos.286/2010 and 287/2010 was filed by the petitioners. However the said Review Petition came to be dismissed. It is thereafter these appeals are filed challenging the order passed in the writ petition as well as in the review petition.

6. In the light of the aforesaid facts and the rival contentions, the points that arise for our consideration in these proceedings are :-

(a) Whether issuance of successive declarations is permissible under the Act

(b) Whether delay in issuing notification under Section 28(4) of the Act and passing award, vitiates acquisition proceedings

POINT (a): SUCCESSIVE DECLARATIONS

7. The argument on behalf of the petitioners that successive notifications is not permissible in law is based on the judgment of the Apex Court in Vishnu Prasad Sharmas case referred to supra. The Apex Court in the aforesaid judgment was dealing with Sections 4, 5A and 6 of the Land Acquisition Act, 1894 (for short hereinafter referred as L.A. Act), prior to the amendment of Section 6 in 1967.

8. Sections 4, 5, 5A and 6 of the Act reads as under:

4. Publication of preliminary notification and power of officers thereupon.(1) Whenever it appears to the appropriate Government that land in any locality is needed or is likely to be needed for any public purpose a notification to that effect shall be published in the Official Gazette, and the Collector shall cause public notice of the substance of such notification to be given at convenient places in the said locality.

(2) Thereupon it shall be lawful for any officer, either generally or specially authorized by such Government in this behalf, and for his servants and workman,-

to enter upon and survey and take levels of any land in such locality; to dig or bore into the sub-soil;

to do all other acts necessary to ascertain whether the land is adapted for such purpose; to set out the boundaries of the land proposed

to be taken and the intended line of the work (if any) proposed to be made thereon;

to mark such levels, boundaries and line by placing marks and cutting trenches; and,

where otherwise the survey cannot be completed and the levels taken and the boundaries and line marked, to cut down and clear away any part of any standing crop, fence or jungle;

Provided that no person shall enter into any building or upon any enclosed court or garden attached to a dwelling house (unless with the consent of the occupier thereof) without previously giving such occupier at least seven days notice in writing of his intention to do so.

5. Payment for damage. The officer so authorized shall at the time of such entry pay or tender payment for all necessary damage to be done as aforesaid, and, in case of dispute as to the sufficiency of the amount so paid or tendered, he shall at once refer the dispute to the decision of the Collector or other chief revenue officer of the district, and such decision shall be final.

5A. Hearing of objections.(1) Any person interested in any land which has been notified under section 4, sub- section (1), as being needed or likely to be needed for a public purpose or for a Company may, within thirty days after the issue of the notification, object to the acquisition of the land or of any land in the locality, as the case may be.

(2) Every objection under sub- section (1) shall be made to the Collector in writing, and the Collector shall give the objector an opportunity of being heard either in person or by pleader and shall, after hearing all such objections and after making such further inquiry, if any, as he thinks necessary, submit the case for the decision of the appropriate Government, together with the record of the proceedings held by him and a report containing his recommendations on the objections. The decision of the appropriate Government on the objections shall be final.

(3) For the purpose of this section, a person shall be deemed to be interested in land who would be entitled to claim an interest in compensation if the land were acquired under this Act.

6. Declaration of intended acquisition.(1).Subject to the provisions of Part VII of this Act when the appropriate Government is satisfied, after considering the report. if any, made under Section 5A, sub-section (2), that any particular land is needed for a public purpose, or for a company, a declaration shall be made to that effect under the signature of Secretary to such Government or of some duly authorized to certify its orders:

Provided that no such declaration shall be made unless the compensation to be awarded for such property is to be paid by a company, or wholly or partly out of public revenues or some fund controlled or managed by a local authority.

(2) The declaration shall be published in the official Gazette, and shall state the district or other territorial division in which the land is situate, the purpose for which it is needed, its approximate area, and where a plan shall have been made of the land, the place where such plan may be inspected.

(3) The said declaration shall be conclusive evidence that the land is needed for a public purpose or for a company, as the case may be; and, after making such declaration, the appropriate Government may acquire the land in manner hereinafter appearing.

(underlining by us)

9. The Apex Court formulated the question for consideration as under:

(11a). The question whether only one notification under S.6 can be issued with respect to land comprised in the notification under S.4(1) and thereafter the notification under S.4(1) exhausts itself and cannot support any further notification under S.6 with respect to such land depends upon the construction of Ss.4, 5-A and 6 of the Act and on the connection between these provisions xxx.

Then at para-15 it is held as under:

15. xxx The purpose of the notification under Section 4(1) clearly is to enable the government to take action under S.4(2) in the matter of survey of land to decide what particular land in the locality specified in the notification under Section 4(1) it will decide to acquire. Another purpose of the notification under S.4(1) is to give opportunity to persons owning land in that locality to make objections under S.5-A. These objections are considered by the Collector and after considering all objections he makes a report containing his recommendation on the objections to the appropriate government whose decision on the objections is final. Section 5-A obviously contemplates consideration of all objections made to the notification under S.4(1) and one report thereafter by the Collector to the government with respect to those objections. The government then finally decides those objections and thereafter proceeds to make a declaration under S.6. There is nothing in S.5-A to suggest that the Collector can make a number of reports dealing with the objections piecemeal. On the other hand S.5-A specifically provides that the Collector shall hear all objections made before him and then make a report i.e. only a single report to the government containing his recommendation on the objections. It seems to us clear that when such a report is received from the Collector by the government it must give a decision on all the objections at one stage and decide once for all what particular land out of the locality notified under S.4(1) it wishes to acquire. It has to be satisfied under S.6 after considering the report made under S.5-A that a particular land is needed for a public purpose or for a company and it then makes a declaration to that effect under S.6. Reading Ss. 4, 5-A and 6 together it seems to us clear that the notification under S.4(1) specifies merely the locality in which the land is to be acquired and then under S.4(2) survey is made and it is considered whether the land or part of it is adapted to the purpose for which it is required and maps are prepared of the land proposed to be taken. Then after objections under S. 5-A have been disposed of the government has to decide what particular land out of the locality specified in the notification under S.4(1) it will acquire. It then makes a declaration under S.6 specifying the particular land that is needed.

16. Sections 4, 5-A and 6 in our opinion are integrally connected. Section 4 specifies the locality in which the land is acquired and provides for survey to decide what particular land out of the locality would be needed. Section 5-A provides for hearing of objections to the acquisition and after these objections are decided the government has to make up its mind and declare what particular land out of the locality it will acquire. When it has so made up its mind it makes a declaration as to the particular land out of the locality notified in S.4(1) which it will acquire. It is clear from this intimate connection between Ss.4, 5A and 6 that as soon as the government has made up its mind what particular land out of the locality it requires, it has to issue a declaration under S.6 to that effect. The purpose of the notification under Section 4(1) is at this stage over and it may be said that it is exhausted after the notification under S.6. If the government requires more land in that locality besides that notified under S.6, there is nothing to prevent it from issuing another notification under S.4(1) making a further survey if necessary, hearing objections and then making another declaration under S.6 xxx

Further they proceeded to hold as under:

It seems to us clear that once a declaration under S.6 is made, the notification under S.4(1) must be exhausted, for it has served its purpose. There is nothing in Ss.4, 5-A and 6 to suggest that S 4 (1) is a kind of reservoir from which the government may from time to time draw out land and make declarations with respect to it successively. If that was the intention behind sections 4, 5-A and 6 we would have found some indication of it in the language used therein. But as we read these three sections together we can only find that the scheme is that S.4 specifies the locality, then there may be survey and drawing of maps of the land and the consideration whether the land is adapted for the purpose for which it has to be acquired, followed by objections and making up of its mind by the government what particular land out of that locality it needs. This is followed by a declaration under S.6 specifying the particular land needed and that in our opinion completes the process and the notification under S.4(1) cannot be further used thereafter xxx.

10. After the aforesaid interpretation placed by the Apex Court on these provisions the Parliament thought it fit to amend the said provisions.

11. On January 20, 1967 an Ordinance was promulgated by the President of India styled The Land Acquisition (Amendment and Validation) Ordinance (1 of 1967). The scheme of Ordinance was that the Land Acquisition Act of 1894 was to have effect, subject to the amendments specified in Sections 3 and 4 of the Ordinance. Section 3 purported to amend Section 5-A of the Land Acquisition Act by enabling different reports to be made in respect of different parcels of land under Section 5-A of the Act. Similarly, Section 4 of the Ordinance purported to amend Section 6 of the principal Act by enabling different declarations to be made from time to time in respect of different parcels of land covered by the same notification under Section 4. Section 5 of the Ordinance purported to validate all acquisitions of land made or purporting to have been made under the principal Act before the commencement of the Ordinance notwithstanding any judgment, decree or order of any court to the contrary.

12. On April 12, 1967 Parliament passed the Land Acquisition (Amendment and Validation) Act, 1967 incorporating the aforesaid provisions in the Ordinance. Writ petitions were filed challenging the constitutional validity of this amendment before the Apex Court as the said provisions were given retrospective effect. A Constitution Bench of the Apex Court in the case of Udai Ram Sharma and others Vs. The Union of India and others reported in AIR 1968 SC 1138 upheld the validity of the said Amendment Act. They held the provisions do not violate the Article 14 of the Constitution nor Article 31(2) of the Constitution. The amended provisions read as under:

5A. (2) Every objection under sub-section (1) shall be made to the Collector in writing, and the Collector shall give the objector an opportunity of being heard in person or by any person authorised by him in this behalf or by pleader and shall, after hearing all such objections and after making such further inquiry, if any, as he thinks necessary, either make a report in respect of the land which has been notified under section 4, sub-section (1), or make different reports in respect of different parcels of such land, to the appropriate Government, containing his recommendations on the objections, together with the record of the proceedings held by him, for the decision of that Government. The decision of the appropriate Government on the objections shall be final.

(3) For the purposes of this section, a person shall be deemed to be interested in land who would be entitled to claim an interest in compensation if the land were acquired under this Act.

6. and different declarations may be made from time to time in respect of different parcels of any land covered by the same notification under section 4, sub-section (1) irrespective of whether one report or different reports has or have been made (wherever required) under section 5A, subsection (2):

(underlining by us)

13. Now by virtue of these amended provisions, after an enquiry under Section 5A, the Collector is vested with the power to 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 the proceedings held by him. On consideration of the said report by the amended provisions of Section 6, the Government is empowered to issue different declarations in respect of different parcels of any land covered by the same notification under Section 4 irrespective of whether one report or different reports was or were made wherever required under Section 5A Sub-section 2. Thus, the basis of the judgment of the Apex Court in Vishnu Prasad Sharmas case was taken away. As the law stands today it is permissible to make successive notifications under Section 6(1) of the Act by issue of a notification under Section 6(1) in respect of only some portion of the land which is the subject matter of Section 4(1) notification, 4(1) notification would not lapse in respect of other provisions of the land in respect of which 6(1) notification is not issued. In view of the aforesaid amendment in respect of one notification issued under Section 4(1) of the Act as it deems appropriate may issue more than one final declaration under Section 6(1) of the Act. This position is not disputed by the learned Counsel for the appellants.

14. Their argument was when the Parliament amended the Act providing for successive notifications similar amendments are not brought by the State legislature to the Act providing for successive declarations. Therefore, in the situation of the provisions being not amended the principle enunciated by the Apex Court in the case of Vishnu Prasad Sharmas case holds the field. Therefore, under the Act, once a notification under Section 28(4) of the Act is issued only in respect of some portions of the land which are covered under Section 28(1) of the Act, in respect of the remaining portions of the land, notification under Section 28(1) of the Act lapses and the Government has no authority or power to issue a notification under Section 28(4) of the Act, in respect of those portions of the land which were not included in the first notification under Section 28(1). The unamended Section 6(1) is in pari materia with Section 28(4) of the Act.

15. It is in this context, it is necessary to look into the provisions under the Act and to find out whether they are in pari materia with the provisions of the Land Acquisition Act.

16. Section 28 of The Karnataka Industrial Areas Development Act, 1966 reads as under:

Acquisition of land: (1) If at any time, in the opinion of the State Government, any land is required for the purpose of development by the Board, or for any other purpose in furtherence of the objects of this Act, the State Government may by notification give notice of its intention to acquire such land.

(2) On publication of a notification under sub-section (1), the State Government shall serve notice upon the owner or where the owner is not the occupier, on the occupier of the land and on all such persons known or believed to be interested therein to show cause; within thirty days from the date of service of the notice, why the land should not be acquired.

(3) After considering the cause, if any, shown by the owner of the land and by any other person interested therein, and after giving such owner and person an opportunity of being heard, the State Government may pass such orders as it deems fit.

(4) After orders are passed under sub-section (3), where the State Government is satisfied that any land should be acquired for the purpose specified in the notification issued under Sub-section (1), a declaration shall, by notification in the official Gazette, be made to that effect.

(5) On the publication in the official Gazette of the declaration under sub-section (4), the land shall vest absolutely in the State Government free from all encumbrances.

17. A comparison of the provisions of the Land Acquisition Act prior to amendment with the provisions contained in Section 28 of the Act show that they are not in pari materia with each other. Under the unamended provisions of the Land Acquisition Act, the Collector was expected to make a report in respect of the land after considering all objections made to the notification under Section 4(1), whereas under the Act, there is no requirement of making such a report. Sub-section (3) of Section 28 makes it clear after considering the cause if any shown by the owner of the land and by any other person interested therein, the State Government may pass such order as it deems fit. Sub-section (4) makes it clear after orders are passed under Sub-section (3), whether the State Government is satisfied that any land should be acquired for the purpose specified in the notification issued under sub-section (1), a declaration shall by notification in the Official Gazette be made to that effect. Therefore, the obligation to consider all objections in respect of lands which are notified under Section 4(1) of the Land Acquisition Act is conspicuously missing in sub-sections (3) and (4) of the Act. There is no submission of report under the Act. Similarly there is no obligation on the part of the Government to consider this report and then make up its mind whether all the lands which are notified under Section 4(1) is required to be notified under Section 6(1) or only a portion of it under the Act. The Act expects that objection of each owner in respect of his land is to be considered and if it is satisfied that the said land is required for the purpose specified in the notification, may issue a declaration by way of a notification under Section 28(4). The words used are any land and not all land notified. In fact now the question whether these two provisions are identical or in pari materia is no more res-integra.

18. The Apex Court in the case of P. Narayanappa and Another Vs. State of Karnataka and others reported in (2006) 7 SCC 578 [LQ/SC/2006/728] dealt with the question whether provisions for acquisition of the land under the Act as contained in Section 28 is identical with the provisions contained in Sections 4, 5A and 6 of the Land Acquisition Act. After elaborately considering the scheme of both the Acts and setting out various definitions and provisions contained in both the Acts at para-13 they have held as under:

13. The provision for acquisition of land under the Act is contained in Section 28 which is somewhat different from the provisions contained in Section 4, 5-A and 6 of the Land Acquisition Act. The legislature in its wisdom thought it proper to make a specific provision for acquisition of the land in the Act itself rather than to take recourse to Sections 4 and 6 of the Land Acquisition Act. A plain reading of sub-section (1) of Section 28 would show that land can be acquired for the purpose of (i) development by the Board, or (ii) for any other purpose in furtherance of the objects of the Act. Sub-section (3) of Section 28 is similar to Section 5-A of the Land Acquisition Act and the final notification is issued under Sub-section (4) of Section 28. The necessary precondition for a valid notification under sub-section (4) of Section 28 is that the State Government should be satisfied that the land is required for the purpose specified in the notification issued under sub-section (1) viz., for the purpose of (i) development by the Board, or (ii) for any other purpose in furtherance of the objects of the Act. Therefore, in order to judge the validity of the notification what is to be seen is whether the acquisition of land is being made for securing the establishment of industrial areas or to promote the establishment or orderly development of industries in such areas. In view of the wide definition of the words industrial infrastructural facilities as contained in Section 2(7-a) of the Act, making of a technology park, research and development centre, townships, trade and tourism centres or making provisions for marketing and banking which would contribute to the development of industries will meet the objectives of the Act and acquisition of land for such a purpose would be perfectly valid.

At para-10 it has been held:

xxx it is important to note that the Land Acquisition Act is not applicable at the stage of acquisition of the land but becomes applicable only in the matter of payment of compensation on account of Section 30 of the Act. Therefore, the provisions of Sections 4 and 6 of the Land Acquisition Act have no application here and acquisition of land has to be done in accordance with the provisions of the Act.

19. Therefore, from the aforesaid provisions as well as from the discussion as above, it is clear the Apex Court in Vishnu Prasad Sharmas case was constrained to hold that successive declarations are not permissible because Section 5A of the Land Acquisition Act provided for consideration of all objections made to the notification under Section 4(1) and one report thereafter to the Government. Similarly the Government after considering the report made under Section 5A had to make up its mind whether particular land is needed for public purpose or not and then issue a declaration under Section 6(1). Correspondingly there is no provision in the Act for considering all objections made to the notification under Section 28(1) of the Act. There is no provision for submission of one report to the Government. There is no provision for consideration of any such report by the Government before issuing a declaration under section 28(4) of the Act. On the contrary, the language of the Act makes it very clear the Government has to consider the cause shown by the owner of the land and may pass such order as it deems fit and if it is satisfied that any such land should be acquired for the purpose specified in the notification, it may issue a declaration. In the light of the marked difference in the language employed in Section 28, there is no scope for holding that successive notifications are not permissible in law. In fact the legislature did not amend the Act because in the Act the provisions similar to consideration of all objections together, submission of a report and consideration of a report and issuing final notification are conspicuously missing. If those words had been there and if they had not been amended, then the judgment of the Apex Court would have to be applied with full force. Therefore, merely because the State legislature did not bring about any amendment as was done by the Parliament, it would in no way support the case of the petitioners. Such an amendment in the facts of this case was wholly unnecessary.

20. In the light of what is stated above we are of the view that the learned Single Judge was justified in holding that under the Act, issuance of successive declarations is permissible. It is not out of place to mention here the acquisition of land under the Act is for an industrial purpose. Under the scheme of the Act first a notification has to be issued under Section 3(1) of the Act specifying the area to be an industrial area for the purpose of this Act. Section 3 reads as under:

3. Declaration of industrial areas:

(1) The State Government may, by notification, declare any area in the State to be an industrial area for the purposes of this Act.

(2) Every such notification shall define the limits of the area to which it relates.

21. The object of this provision is to inform the public that the State Government has taken a decision to form an industrial estate in a particular area, so that the said area may not be used for any other purpose. In fact, Section 4 of the Act specifically provides for alteration of industrial area after issue of a notification under Section 3(1) of the Act specifying and declaring any area in the State to be an industrial area. The power is vested under Section 4 of the Act to exclude from any industrial area, any area or include therein any additional area as may be specified in such notification. That is the only mode by which an area which is declared as an industrial area can be excluded from the industrial area. Though the Act came into force from 26th Day of May 1966, Chapter-VII of the Act which deals with acquisition and disposal of land were not made applicable to the entire state of Karnataka. It is only when a land is to be acquired for the purpose of industrial development, after issue of a notification under Section 3(1) of the Act, notification has to be issued under Section 1(3) of the Act making Chapter-VII applicable. After Chapter-VII is made applicable to a particular area, then the Government is vested with the power under Section 28(1) of the Act to issue a notification expressing its intention to acquire such land. When such a land is notified it is not as if every owner of the land would object to the acquisition. There are number of owners of the land who may be willing to give their consent to acquisition of the land and accept compensation payable under the Act. At the same time the very object of enacting this Act is establishment and development of industrial area and for making available industrial land to the private entrepreneurs to start industries. If a land owner chooses to challenge the acquisition, certainly it takes time before the acquisition is completed. Therefore, under the scheme it is open to the Government to issue a notification under Section 28(4) in respect of lands where there is no opposition to the acquisition or where they are able to serve the land owners, consider their objections and issue notification for acquisition. If there is any delay in service of notice, if there are contests and any order of stay or injunction is obtained from Courts, it is not necessary for the Government to wait for conclusion of those proceedings before it could issue a notification under Section 28(4) of the Act. That is precisely the reason why as is clear from the language employed in Sections 28(3) and (4), the Government is empowered to consider the cause shown by each owner and pass appropriate orders and issue declarations in respect of such owners under Section 28(4) of the Act. It serves the object of the Act. Similarly it also enables the owners of the land who are consenting for acquisition to get compensation expeditiously. Therefore, seen from all angles the legislature has consciously avoiding the pit falls which were found in the unamended provisions of Section 6 and 5A of the Act and to enable the Government to acquire land piece meal by issue of such successive notifications have not adopted the procedure prescribed under the unamended Sections 6 and 5A of the L.A. Act. In that view of the matter we do not see any substance in the first contention.

POINT (b): DELAY IN ISSUING NOTIFICATION UNDER SECTION 28(4) OF THE ACT AND PASSING AWARD, VITIATES ACQUISITION PROCEEDINGS

22. It was vehemently contended that even if successive notifications is permissible in law, the compensation payable under the Act is dependent on the date of preliminary notification. If there is delay in issue of final notification it acts oppressively in respect of the land owners. Though a provision like Section 11A of the Land Acquisition Act is not found in the Act, it does not mean that the Government can issue a final notification at any point of time. It is settled law that when discretion is conferred on the Government, such a discretion has to be exercised within a reasonable time.

23. The Apex Court in the case of Ram Chand and Others Vs. Union of India And Others reported in (1994) 1 SCC 44 [LQ/SC/1993/831] has held even in the absence of a specific provision providing for issue of a final notification within a time limit, the final notification has to be issued within a period of two years, as two years is held to be a reasonable time in the absence of Section 11A of the Act. Therefore it was contended that the second successive notification issued after a period of five years from the date of the preliminary notification and passing of the award thereafter is vitiated and consequently the entire acquisition lapses.

24. A Division Bench of this Court in the case of Shimoga Urban Development Authority by its Commissioner and Another Vs. State of Karnataka by its Secretary reported in ILR 2002 KAR 2078 relying on the aforesaid judgment held as under:

17. The effect of delay has been considered by the Supreme Court in RAM CHAND vs UNION OF INDIA 1989(3) K.L.J. P.17. Though the said case dealt with the delay between the date of Final Notification and the date of passing of the award, the principles enunciated therein will equally apply in respect of the delay between the Preliminary Notification and Final Notification. The following observations are apposite:

It is settled that in a statute where for exercise of power no time limit is fixed, it has to be exercised within a time which can be held to be reasonable. The authorities are enjoined by the statute concerned, to perform their duties within a reasonable time and a such they are answerable to the Court, why such duties have not been performed by them, which has caused injury to the claimants.

The Supreme Court held that where the compensation is pegged down to the date of preliminary notification and there is inordinate delay, the market rate as on the date of preliminary notification becomes a fraction of the market rate prevailing at the time of passing of the award and taking of possession and that would be unjust to the land owners.

18. In this case the Authority has not explained the inordinate delay. Even if it is assumed that the delay upto 15.3.1989 is explained by reason of the fact that the scheme was approved by the Government under Section 18(3) of the Act on that day, there is absolutely no reason forthcoming for the delay of more than 3 years between 15.3.1989 to 2.6.1992. In this case, the land owners have approached this Court in the year 1992 immediately after the Final Notification and are having the benefit of stay. In the circumstances, even if the preliminary notification is held to be valid for any reason, the final declaration under Section 19(1) of the Act may have to be held to be invalid on the ground of delay in issuing the same. Be that as it may.

25. The power to acquire private property for public use is an attribute of sovereignty and is essential to the existence of a Government. The power of eminent domain was recognised on the principle that the sovereign State can always acquire the property of a citizen for public good, without the owners consent. The right to acquire an interest in land compulsorily has assumed increasing importance as a result of requirement of such land more and more everyday, for different public purposes and to implement the promises made by the framers of the Constitution to the people of India. Though the right to property is no more a fundamental right the Constitution ensures under the second proviso to Article 31-A, that where any law makes provision for acquisition by the State, of land held by a person, it shall not be lawful for the State to acquire any portion of such land unless the law relating to the acquisition of such land, building or structure, provides for payment of compensation at a rate which shall not be less than the market value thereof. Article 300-A declares that no person shall be deprived of his property save by authority of law. Therefore though right to property is no more a fundamental right, it is still a constitutional right. Earlier by way of an amendment to Section 6(1) a period of three years was prescribed for issue of a final declaration. However, no time had been prescribed for passing of an award. By Land Acquisition (Amendment) Act, 1984 the period of three years was reduced to one year insofar as the issue of final notification is concerned and a period of two years is stipulated insofar as making of an award is concerned. The whole object behind this amendment is that once a land is notified for acquisition, further proceedings should be taken as early as possible so that the owner of the land would get compensation representing the market value as on the date of the said notification. Therefore, under the Land Acquisition Act, if a final declaration is not made within one year from the date of preliminary notification and if no award is passed within two years from the date of final declaration, entire acquisition proceedings would lapse. However, similar provisions are not contained in the Act. In the absence of such provisions the issue of a final notification as well as passing of an award could be indiscriminately delayed. In this regard in the case of State of Gujarat Vs. Patel Raghav Natha reported in AIR 1969 SC 1297 [LQ/SC/1969/180] , the Apex Court was considering the question whether in a statue, if for exercise of the power, no time-limit has been fixed, can the authority which has to exercise such power can exercise the same at any time. In that context it was held as under:

The question arises whether the Commissioner can revise an order made under Section 65 at any time. It is true that there is no period of limitation prescribed under Section 211, but it seems to us plain that this power must be exercised in reasonable time and the length of the reasonable time must be determined by the facts of the case and the nature of the order which is being revised.

26. The said view was reiterated by the Apex Court in the case of Mansaram Vs. S.P. Pathak reported in (1984)1 SCC 125 [LQ/SC/1969/474] at para-12, it is held as under:

But as stated earlier, where power is conferred to effectuate a purpose, it has to be exercised in a reasonable manner and the reasonable exercise of power inheres its exercise within a reasonable time.

27. The Apex Court dealing with the case arising under the Land Acquisition Act in the aforesaid Vishnu Prasad Sharmas case pointed out as under:

It is clear from the intimate connection between Sections 4, 5-A and 6, that as soon as the Government has made up its mind what particular land out of the locality it requires, it has to issue a declaration under Section 6 to that effect.

28. The Apex Court in the case of Ambalal Purshottam Vs. Ahmedabad Municipal Corporation reported in AIR 1968 SC 1223 [LQ/SC/1968/46] dealing with the expeditious conclusions of acquisition proceedings held as under:

We are not hereby to be understood as suggesting that after issue of the notifications under Sections 4 and 6 the appropriate Government would be justified in allowing the matters to drift and to take in hand the proceeding for assessment of compensation whenever they think it proper to do. It is intended by the scheme of the Act that the notification under Section 6 of the Land Acquisition Act must be followed by a proceeding for determination of compensation without any unreasonable delay.

29. In Craies on Statute Law, Seventh Edn., has also emphasised that the proceeding for compulsory acquisition must be concluded without unreasonable delay:

Powers conferred by Act of Parliament must, as a general rule, be exercised within a reasonable time after notice has been given to the persons whose property will be affected by their exercise, otherwise the notice will be liable to be treated as being no longer effective.

30. English Courts have been consistently impressing that the land acquisition proceeding should be completed within a reasonable time, failing which the whole proceedings is vitiated.

31. In the case of Tiverton And North Devon Rly. Co. Vs. Robert Francis Loosemore it was held as under:

If nothing more was done, and the Company has slept upon their rights, and certainly if the delay cannot be explained, they should be held to be disabled from going on with any compulsory purchase,..

32. House of Lords in the case of Birmingham City Corpn. V. West Midland Baptist (Trust) Assn. reported in (1969) 3 All England Reports 172 pointed out how the land acquisition proceedings should be conducted in such a manner that the person affected by the land acquisition, gets substantially the value of his land, which he would have got on the date of his dispossession. It was said

The principle and the rule cannot be reconciled except on the basis that the total value to the owner at the date of the notice to treat is always substantially the same as the value at the date of the expulsion.

33. In fact, it is this principle which is now incorporated by way of amendment to Section 6(1) as well as by introduction of Section 11A under the Land Acquisition Act. It is in this context, when such provisions are not contained in the Act, the Apex Court in the case of Ram Chands case at para-27 held as under:

According to us, after the judgment of this Court in Aflatoon case on August 23, 1974, the reasonable time for making the awards was about two years from the date. Beyond two years, the time taken for making of the awards will be deemed to be unreasonable. As such, after expiry of the period of two years, some additional compensation has to be awarded to the cultivators. Taking into consideration the interest of the cultivators and the public, instead of quashing the proceedings for acquisition, we direct that the petitioners shall be paid an additional amount of compensation to be calculated at the rate of twelve per cent per annum, after expiry of two years from August 23, 1974, the date of the judgment of this Court in Aflatoon case till the date of the making of the awards by the Collector, to be calculated with reference to the market value of the lands in question on the date of the notifications under sub-section (1) of Section 4.

Again the Apex Court at para-14 has observed as under:

The Parliament has recognised and taken note of the inaction and non-exercise of the statutory power on the part of the authorities, enjoined by the provisions of the Act to complete the acquisition proceedings within the reasonable time and because of that no time-limit has been fixed for making of the award, failing which the entire proceeding for acquisition shall lapse. But, can it be said that before the introduction of the aforesaid amendment in the Act, the authorities were at liberty to proceed with the acquisition proceedings, irrespective of any schedule or timeframe and to complete the same as and when they desired It is settled that in a statute where for exercise of power no time-limit is fixed, it has to be exercised within a time which can be held to be reasonable. This aspect of the matter can be examined in the light of second proviso to Article 31-A of the Constitution, which in clear and unambiguous terms prohibits making of any law which does not contain a provision for payment of compensation at a rate, which shall not be less than the market value thereof. The Act is consistent with the second proviso to Article 31-A, because it provides for payment of compensation at the market value of the land acquired. But, whether the constitutional and statutory requirement of the payment of the market value to the persons, whose lands have been compulsorily acquired, is not being circumvented and violated by keeping the land acquisition proceedings pending for more than a decade and half, without making the awards and paying the compensation, which has been pegged to the dates of notifications under sub-section (1) of Section 4 of the Act, which in the present cases had been issued 14 to 21 years before the making of the awards. If a person is paid compensation in the year 1980/1981 at the market rate, prevailing twenty years before, will that be compliance of the constitutional and statutory mandate Ignoring the escalation of the market value of the lands, especially near the agglomeration or metropolitan cities, will amount to ignoring an earthquake and courts can certainly take judicial notice of the said fact. The interest and the solatium, which had to be paid under the provisions of the Act, are linked with the market value of the land with reference to the date of the notification under sub-section (1) of Section 4 of the Act. If a decision had been taken as early as in the year 1966, by issuance of the declaration under Section 6, that the lands belonging to the different cultivators, who held those lands within the ceiling limit for cultivation, were needed for public purpose, respondents should have taken steps for completion of the acquisition proceedings and payment of compensation at an early date. In the present cases, unless a justification is furnished on behalf of the respondents, can it be said that the statutory power of making an award under Section 11 as been exercised within a reasonable time from the date of the declaration under Section 6 Due to escalation in prices of land, more so in this area, during the preceding to decades, in reality, the market rate, on the date of the notification under Section 4(1) is a mere fraction, of the rate prevailing of the time of its determination in the Award.

34. Following the said judgment this Court in the case of Shimoga Urban Development Authoritys case has held two years could be taken as the period within which either a final notification has to be issued or an award is to be passed after such notification.

35. The Apex Court in the case of P. Narayanappa dealing with this aspect has held as under at para-20:

Learned Counsel for the appellant has next submitted that the notification under Section 28(1) was published on 10-12-2001 and the notification under Section 28(4) was published on 23-10-2003 and thus there was a delay of more than 1 year and 10 months in publication of the second notification. As already discussed, the scheme of the present Act is different and there is no similar provision like the one contained in the proviso to sub-section (1) for Section 6 of the Land Acquisition Act which lays down a period of limitation of one year for making a declaration under Section 6(1) of the Act. In the absence of any specific provision to that effect in the Act, and time-gap being not so long, it is not possible to hold that the notification under Section 28(4) of the Act is invalid.

36. From the aforesaid discussion, it is clear if a period is prescribed under the Act for issue of a final declaration as well as for passing of the award, if the final declaration is not issued and the award is not passed within the stipulated period, the entire acquisition lapses, unless it is shown by virtue of any order of stay or injunction issued by any Court, the authorities were precluded from completing the acquisition proceedings. It is by operation of law as contained in the statute. Merely because such a provision is not found in an enactment, it does not mean limitation is not a bar at all. If such a prescription is not there expressly in any enactment it is not possible to hold that such an acquisition has lapsed relying on the provisions contained in the Land Acquisition Act. In other words, the provisions of the Land Acquisition Act cannot be read into the Act or such similar statutes. But nonetheless in order to decide what is the reasonable time within which authorities have to exercise their power either for issue of a final notification or for passing of the award is concerned, certainly the Parliament intendment as contained in this provision cannot be completely lost sight of. On the contrary, it acts as a guide. It expresses the will of the Parliament. It has to be given due weight. When this acquisition proceedings were delayed endlessly and land owners were deprived of just compensation under law and consequently the constitutional right was violated, the Parliament amended the Land Acquisition Act prescribing the time limit. According to the Parliament, one year is the reasonable time for passing of a final declaration and two years is the time for passing of an award. If within those periods the final declaration is not issued, the award is not passed, the whole acquisition lapses. The Act is enacted for industrial development which has to be done expeditiously. Such an industrial development results in generation of employment and economic growth of the State. If the land is required for such public purpose a special enactment was enacted for speedy acquisition of land. Merely because the provisions contained in Section 6(1) and 11A is not incorporated in this Act or after the Parliament amended the Land Acquisition Act in 1984, the State legislature did not think it fit to bring in similar provisions under the Act, it does not mean that the State Government can exercise its power for issue of a final declaration or passing of an award without any regard to time limit. It has to be done within a reasonable time. As held by the Apex Court in Ram Chands case, two years is held to be a reasonable time within which a final declaration has to be issued, if there are no hurdles placed in the acquisition by the land owners or if there are no hurdles in law. If the final declaration is not issued within two years, certainly the land acquisition has to lapse, notwithstanding the absence of any specific provision in the Act as contained in the Land Acquisition Act. When we say it is two years or one year it does not mean on expiry of the said two years or one year, as calculated under the L.A. Act, the acquisition has to lapse. It is roughly two years or one year. Few days or months this way or that way should not matter. Except for this absence of mathematical precision in calculating the period, the substance has to be applied. The parliamentary intention in prescribing time limit under the L.A Act cannot be ignored. However, it all depends on the facts of that particular case, the conduct of the parties, the purpose for which the land is sought to be acquired and the problems faced by the acquiring authorities in concluding the acquisition. Therefore, it is not possible to accept the contention of the acquiring authority that in the absence of any specific provision under the Act, no such time limit can be imposed and the same is without any substance. Even in the absence of any such prescriptions expressly under the statute, having regard to the fact that the right to property is a constitutional right and the person whose land is sought to be acquired is entitled to compensation at the market rate, such a compensation has to be paid to him at the earliest and therefore, the power of acquisition should be exercised within a reasonable time so that the person who lost the land is duly compensated at the earliest point of time.

37. In the light of the aforesaid legal position, we have to decide the writ petitions on the basis of the facts of this case. The facts are not in dispute. The petitioners lands were notified for acquisition under Section 1(3) and Section 3(1) and Section 28(1) of the KIAD Act on 19.04.1997. After the issuance of the said notification admittedly, all the petitioners have sold the lands, which were notified for acquisition under different registered sale deeds on 07.08.1997 i.e., within 3 months from the date of preliminary notification. The first final notification under Section 28(4) of the Act came to be issued on 20.07.1999. In the said final notification these lands were not included. Therefore, they have no cause or occasion to challenge the said notification. After the said notification, probably, out of curiosity they approached the authority to find out whether their lands are intended to be acquired. An endorsement came to be issued on 04.07.2000 informing them that their lands have not been acquired under the final notification. It is thereafter on 27.04.2002, the second final notification came to be issued including the petitioners lands. When their lands were included in this second final notification, they did not choose to challenge the said order. The reason is obvious. They had already sold the said property and they had lost interest in the said property.

38. In fact after the second final notification, the purchasers applied for conversion and conversion orders were passed on 01.09.1998, 29.11.2001, 21.01.2002 and 03.06.2002 permitting the non-agricultural and residential use of the said lands. It is the purchasers who preferred writ petition Nos. 26821-824/2003 challenging the second notification. The said writ petition came to be dismissed on the ground that the purchaser of land after preliminary notification, has no locus-standi to challenge the acquisition. A review petition filed for reviewing the said order also came to be dismissed. It is only thereafter, the present writ petitions are filed challenging the acquisition.

39. On perusal of a copy of the writ petitions in all these cases discloses that W.P. No.14391/2006 is filed by the petitioners represented by their Power of Attorney Holder Sri. V.L. Bharatharaj whereas, W.P.No.12970/ 2006 is filed by the petitioners therein, represented by their Power of Attorney Holder Sri. V.L. Sharathraj. Sri. V.L. Bharatharaj and Sri. V.L. Sharathraj are brothers residing in the same house and they are the children of the purchaser V. Lakshminaryan. Admittedly, in all these cases, an award is passed on 31.12.2006, though there was an order to maintain status-quo. The learned Single Judge after considering all the contentions urged on behalf of the petitioners has dismissed the writ petitions by a common order. These appeals are against the said order.

40. In view of the findings recorded earlier that under the Act, it is permissible to issue successive notifications under Section 28(4) of the Act the challenge to the acquisition on that ground has to necessarily fail. However, it was contended in view of the settled legal position, the final notification ought to have been issued within a reasonable time of one year and the award ought to have been passed within a reasonable time of two years from the date of final notification and in the instant case, the final notification had been issued nearly after five years from the date of preliminary notification and the award having been passed nearly after 4 years 8 months from the date of final notification, the entire acquisition proceedings lapses. Certainly, the said ground would have been a valid ground for the petitioners, if they had not sold their property immediately after the preliminary notification. On the day they filed the writ petitions they were not the owners of the property. The principle underlying acquisition being vitiated on account of delay is, once a preliminary notification is issued, the compensation payable being the market value, the said value is pegged to the date of preliminary notification. Any delay in issuance of final notification and passing of the award determining compensation would obviously affect the interest of the land owners because they are paid compensation on the basis of the market value prevailing on the date of the preliminary notification. In the instant case, the question of paying the compensation would not arise since within three months from the date of preliminary notification, the petitioners have sold the property. Therefore, it is clear that the petitioners did not intend to retain the property and hence have sold the property within three months from the date of preliminary notification. They got the market price and enjoyed the said value of the property. Now they cannot be heard to say that the final notification, which is issued 4 years 8 months after the preliminary notification, vitiates the acquisition proceedings, on the ground that they are deprived of the market value of the property.

41. In fact the material on record discloses that after the issuance of second final notification, it is the purchaser, who challenged the order. The writ petitions came to be dismissed on the ground of want of locus-standi. It is thereafter the very same purchaser through his sons as power of attorney holders has preferred these writ petitions. Therefore, the petition lacks bonafides and therefore on the ground of delay in issuing final notification and passing of the award, these acquisitions cannot be vitiated. As held above, though no time limit is prescribed under the Act and the acquisition is to be completed within a reasonable time, say two years, still what is reasonable time has to be decided in the facts of that particular case. Viewed from the above angle in the facts of this particular case, the delay in issuance of the Final notification and the delay in passing of the award has in no way affected the interest of the petitioners. Hence, it is not vitiated. In fact the learned Single Judge has been sympathetic to the petitioners and in the judgment he has made it clear that in so far as the payment of compensation is concerned, the date of preliminary notification shall not be taken into consideration. It is the date of dispossession, which should be the criteria in deciding the market value payable to the person, who is entitled to compensation. In our view that would meet the ends of justice. Therefore, it is not a case for interference.

42. It was contended that possession of the land is not taken and no developmental activity has been done. In these circumstances, it is open to this Court to set-aside the acquisition and restore the land to the petitioners. That question would have arisen if, the petitioners had not alienated the property, or they were cultivating the lands as rightful owners or they were living there with their family members. If they have executed a sale deed and received the consideration under the sale deed and have parted possession to the purchaser, the possession of the purchaser cannot be treated as the possession of the owner and that would not enure to their benefit to any extent whatsoever to contend that the acquisition is to be quashed. In the facts of this case, we do not find any justification to quash the acquisition proceedings on that score.

43. For the aforesaid reasons, we do not see any merit in this batch of writ appeals and accordingly, they are dismissed.