- (1.) THIS writ petition involves consideration of Section 11-A of the Land Acquisition Act, 1894 which reads as below :- "11-A. Period within which an award shall be made-The Collector shall make an award under section 11 within a period of two years from the date of the publication of the declaration and if no award is made within that period, the entire proceedings for the acquisition of the land shall lapse; Provided that in a case where the said declaration has been published before the commencement of the Land Acquisition (Amendment) Act, 1984, the award shall be made within a period of two years from such commencement. 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 aforesaid section appears to have been inserted by Act 68 of 1984 vide section 9 thereof.
(2.) SHORN of unnecessary details, the facts giving rise to the writ petition are that plot no. 101 was leased to the petitioner and others on 26 -7- 1959 (valid for thirty years and renewable two times till a period of ninety years is complete). The area of plot no. 101 is 468 acres. Two set of persons are entitled to the aforesaid plot. One set is Dr. Bhairo Lal Bathwal or his descendants and the second set is Om Prakash Tikriwal and Vinod Prakash Tikriwal. Both sets had equal share. In a partition suit no. 52 of 1961 a compromise was arrived at between the parties and half area of plot no. 101 went to one set and the other half to the other set mentioned above. 158 acres of plot no. 101 was acquired and the relevant notifications contemplated by sections 4 and 6 of the Land Acquisition Act were issued as is evident from annexures '1' and '2' attached with the writ petition. The petitioner had challenged the acquisition proceedings but the writ petition filed by the petitioner numbered as Writ Petition No. 685 of 1973, was dismissed on 23-4-1980 on the ground of laches. Therefore, the petitioner has not succeeded in challenging the acquisition proceedings. It appears that there is a dispute on the question whether the authorities succeeded in getting 1 58 acres acquired land demarcated and possession over the same. However, the authorities tried to dig out a portion of the land which had fallen to the share of the petitioner in the partition suit. The petitioner filed a suit, numbered as suit no 1282 of 1981-Girdhari Lal Bathwal v. State of U. P. and others, and prayed for an injunction against the defendants first set from interfering with the possession of the plaintiff and digging construction over the plaintiff's land on plot no. 101 without making demarcation of area 1.58 acres acquired in land acquisition proceeding. A copy of the plaint has been attached with the writ petition and is marked as annexure '4'. The petitioner has also filed an application before the Collector, Gorakhpur requesting him to demarcate the plot in dispute on the spot according to law. The Collector has passed an order contained in annexure '5' on 22-1-1982 and has directed the demarcation of the acquired area as is evident from the aforesaid annexure In suit no. 1282 of 1981- Girdhari Lai Bathwal v. State of U. P. and others, an injunction order appears to have been passed by the Munsif IV, Gorakhpur on 2-1-1984 (see annexure '6' attached with the writ petition). It appears that the order passed by the Munsif on 2-1-1984 was set aside by the appellate court through its order dated 19-12-1984. After the order of the appellate court contained in annexure 'T the petitioner preferred First Appeal From Order No 238 of 1985-Girdhari Lal Bathwal v State of U. P. and others. In the aforesaid appeal, on 21-2-1986 operation of the impugned order was directed to be stayed. In the aforesaid appeal, a learned single Judge of this Court passed an order on 30-7-1987 modifying the earlier order passed in the appeal. A certified copy of the order dated 30-7-1987 is on the record. In view of the above mentioned facts, the main argument of the learned counsel for the petitioner before us is that the entire acquisition proceedings be declared to have lapsed and are null and void in view of the provision of section 11-A of the Act. The learned counsel for the contesting opposite parties has submitted that the record of demarcation proceedings was summoned in the suit and has been there. Therefore, the explanation to section 11-A of the Act is attracted to the facts and circumstances of the present case and the acquisition proceedings cannot be declared to have lapsed. It is noteworthy that Act 68 of 1984 came into force on 24-9-1984. The period of two years provided in the aforesaid section would normally come to an end in the facts and circumstances of the present case on 24-9-1986. The learned counsel for the contesting opposite parties has emphasised that since the record of demarcation proceedings was with the civil court, therefore, it would be treated that the action or proceedings to be taken in pursuance of the said declaration had been stayed in the case giving rise to this writ petition.
(3.) WE have considered the contention raised on behalf of the parties. Explanation to section 11-A of the Act emphasises that there should be an order of the court through which any action or proceedings to be taken in pursuance of the declaration had been stayed The learned counsel for the contesting opposite parties has failed to point out any such order whereby the action or the proceedings had been stayed. The mere fact that the record of demarcation proceedings was with the civil court in connection with the litigation between the parties therefore it would be treated that necessary stay order contemplated by the explanation to section 11-A of the Act has been passed, is not acceptable to us in the facts and circumstances of this case. In the present case, no award has been made within the period of two years from the commencement of Act 68 of 1984. Therefore, we think that the proceeding in the acquisition of the disputed land has lapsed. Section 15 of the Indian Limitation Act, 1908 contemplates exclusion of time during which the proceedings are suspended. While interpreting that provision in Narayan Jivangunda Patil v. Puttabai, AIR 1945 PC 5, their Lordships of the Supreme Court have indicated at page 7 as below: - "The question whether in a particular case a party has been restrained by an injunction or order from instituting a suit must always depend for its decision upon the order or decree made in the case. It appears to their Lordships there is nothing in the injunction or in the decree to support the contention that the appellant was prevented from instituting a suit for possession in 1920 or at any time before expiry of the period of limitation." ;