M S Sonak, J.

[1] Heard learned counsel for the parties.

[2] Rule. The Rule is made returnable immediately at the request of and with the consent of the learned counsel for the parties.

[3] The Petitioners seek the following substantive reliefs in this Petition:-

"[A] That this Honourable Court be pleased to issue a Writ of Mandamus or Writ in the nature of Mandamus or any other appropriate Writ, direction and order under Article 226 of the Constitution of India, 1950, quashing and setting aside the provision of Constitution (44th Amendment Act) of the year 1978 as violative of the basic structure of the Constitution of India.

[B] That this Honourable Court be pleased to issue a Writ of Mandamus or Writ in the nature of Mandamus or any other appropriate Writ, direction and order under Article 226 of the Constitution of India, 1950, quashing and setting the Central Act No. 68 of 1984, namely Land Acquisition [Amendment] Act 1984, as violative of Article 300 A of the Constitution of India.

[C] That this Honourable Court be pleased alliteratively to issue a Writ of Mandamus or Writ in the nature of Mandamus or any other appropriate Writ, direction and order under Article 226 of the Constitution of India, 1950, alternatively holding the provision of Land Acquisition [Amendment] Act 1984 are inconsistent with the provision of Article 19 [1] [f] read with Article 31, of the Constitution of India, in case if the Honourable Court comes to the conclusion that, the Constitution (44th Amendment) Act 1978 is violative of the basic structure of the Constitution.

[D] That in case if the Honourable Court comes to the conclusion that the Constitution (44th Amendment) Act 1978, is not violative of the basic structure of the Constitution, then the Honourable Court be pleased to hold that the provision of Land Acquisition [Amendment] Act 1984, are not "Authority of Law" within the meaning of Article 300 A of the Constitution of India, and the aforesaid provisions of the Act are violative of Article 300 A of the Constitution of India, 1950.

[E] That this Honourable Court be pleased to issue a Writ of Mandamus or Writ in the nature of Mandamus or any other appropriate Writ, direction and order under Article 226 of the Constitution of India, 1950, quashing and setting aside the Notification issued by the Special Land Acquisition Officer, under Land Acquisition Act in respect of the suit property, as the fraud on the provisions of Section 3[cc] of the Land Acquisition Act 1894, as amended by the Land Acquisition [Amendment] Act No.68 of 1984.

[E1] That this Honourable Court be pleased to issue a Writ of Mandamus or any other Writ in the nature of Mandamus or any other appropriate Writ, direction or order under Article 226 of the Constitution, quashing and setting aside the impugned declaration made by the Additional Commissioner, Pune Division in respect of the suit property as a fraud on the provisions of Section 3 (cc) and Section 6(1) of the Act.

[F] That this Honourable Court be pleased to issue a Writ of Mandamus or Writ in the nature of Mandamus or any other appropriate Writ, direction and order under Article 226 of the Constitution of India, 1950, holding that the Respondent Sugar Factory is not a Corporation owned and controlled by the "State" within the meaning of Section 3[cc] of the Land Acquisition Act 1894 and therefore the provisions of Part II of the Land Acquisition Act will not apply in respect of the proposed acquisition."

[4] Mr Gatne submitted that Section 4 Notification was issued on 22 May 2013, and its last date of publication was 31 May 2013. However, the declaration under Section 6 was made only on 22 July 2014. Relying on Clause (ii) of the first proviso to Section 6 of the Old Act, Mr Gatne submitted that since the Section 6 declaration was made after the expiry of one year from the last date of publication of Section 4 Notification, the same was void.

[5] Mr Gatne submitted that, even otherwise, in terms of the Government Resolution dated 14 June 2001, the State Authorities needed to issue a Section 6 declaration within six months of the date of publication of the Section 4 Notification. Since the Section 6 declaration was made after a year from the last date of publication of the Section 4 Notification, it violated the Government Resolution dated 14 June 2001 and the provisions of Section 6 of the Old Act.

[6] Mr Gatne submitted that in the present case, the land acquisition proceedings commenced with the issue of Section 4 Notification dated 22 May 2013 under the Old Act. However, the impugned award was made on 16 July 2016, after the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 ("New Act") came into force on 1 January 2014. Relying on the decision of the Hon'ble Supreme Court in the case of Executive Engineer, Gosikhurd Project Ambadi, Bhandara, Maharashtra Vidarbha Irrigation Development Corporation vs. Mahesh and others, 2022 2 SCC 772 , he submitted that the provisions of Section 25 of the New Act would apply. He submitted that since the award, in this case, was not made within one year from the date of Section 6 declaration, the land acquisition proceedings are liable to be declared as lapsed, given the provisions of Section 25 of the New Act as interpreted by Executive Engineer, Gosikhurd Project Ambadi, Bhandara, Maharashtra Vidarbha Irrigation Development Corporation (supra).

[7] Mr Gatne finally submitted that this was a case of acquisition for setting up a distillery by the third Respondent. He submitted that such a purpose could never be regarded as a "public purpose" as defined under Section 2(f) of the Old Act. The acquisition, not being for a public purpose, was a fraud on the provisions of the Old as well as the New Act and, therefore, liable to be set aside.

[8] Mr Gatne, learned counsel for the Petitioners, firstly contended that Respondent No.3 is a Co-operative Society operating a sugar factory. He submitted that based on the material on record, this Co-operative Society is not "Corporation owned or controlled by the State Government" as defined under Section 3(cc) of the Land Acquisition Act, 1894 ("Old Act"). He submitted that the material on record shows that the shareholding of the State Government in the third Respondent Society is less than 51% of the paid-up share capital. Therefore, he submitted that any acquisition for the third Respondent is not a "public purpose" as defined under Section 2(f) of the Old Act.

[9] Mr Gatne submitted that the expression "is held" in Section 3(cc) of the Old Act implies that at the stage of at least from the initiation and up to the completion of the acquisition proceedings, the shareholding of the State Government should have been 51% or above of the paid-up capital of the third Respondent-Society. He submitted that the documents on record show that at both stages and even in between, the shareholding was less than 51%. Accordingly, he submitted that this was a case of acquisition for a cooperative society in which the government shareholding was less than 51%, which could never be regarded as a public purpose. If the State Government was serious about such an acquisition, then the only option available to the State Government was to perhaps proceed under Part VII of the Old Act. He submitted that, admittedly, the procedure under Part VII was not followed. Therefore, the impugned Notifications under Sections 4 and 6 of the Old Act and the acquisition were liable to be quashed and set aside.

[10] Mr Gatne submitted that the legislature had used the expression "is held" in Section 3(cc) of the Old Act. This provision defines "Corporation owned or controlled by the State". He submitted that the "control" contemplated by Section 3(cc) is a control where the participation in paid-up share capital is more than 51%. Otherwise, he submitted that the Corporation in question could not be "controlled by the State". Mr Gatne relied on P. Anand Gajapathi Raju and others vs. P.V.G. Raju (dead) and others, 2000 4 SCC 539 and F. S. Gandhi (dead) by LRs. vs. Commissioner of Wealth Tax, Allahabad, 1990 3 SCC 624 regarding the interpretation of the expression "is held".

[11] Mr Gatne submitted that on the date of issue of Section 4 Notification, the State's participation in the equity of the third Respondent was about 35%. On the award date, the equity participation was about 42.92%. Therefore, he submitted that the third Respondent could not be regarded as a Corporation owned or controlled by the State within the meaning of Section 3(cc) of the Old Act. Any acquisition for such a Corporation could never be regarded as an acquisition for "public purpose" as defined under Section 3(f) of the Old Act. He submitted that if, before possession is taken, the purpose of the acquisition ceases to be a public purpose, the further acquisition proceeding would be without the authority of law. He relied on The Industrial Development and Investment Co. Pvt. Ltd. and another vs. State of Maharashtra and others,1988 MhLJ 1027 in support of this contention.

[12] Mr Gatne advanced no arguments on prayer clauses (A), (B), (C) and (D) of the Petition. Even in the written submissions on behalf of the Petitioners, apart from the above arguments, no other arguments were advanced regarding the constitutional validity or the alleged violation of the basic structure of the Constitution of India. The arguments were therefore restricted to prayer clauses (E), i.e., challenge to the impugned Notifications, and (E1), i.e., to Section 6 declaration made under the Old Act.

[13] Mr T. D. Deshmukh who appeared with Mr Ronak Utagikar and Mr Sagar Khursija for the third Respondent and Mr B. V. Sawant, Additional Government Pleader and Mr A R Deolekar, AGP for Respondents 1, 2 and 4 (State Government) vehemently disputed the contention that the State Government had a shareholding of less than 51% in the third Respondent-Society. They submitted that from the material on record, it was evident that the State Government had a shareholding of more than 51%. Therefore, the third Respondent was required to be construed as a Corporation owned or controlled by the State as defined under Section 3(cc) of the Old Act.

[14] Learned Counsel for the Respondents referred to the definition of "public purpose" under Section 3(f) of the Old Act and pointed out that this was only an "inclusive definition". They submitted that Section 3(f)(iv) had provided that the expression "public purpose" includes the provision of land for a Corporation owned or controlled by the State. They submitted that even otherwise, the Section 6 declaration had referred to the acquisition being at the State cost. Accordingly, they submitted that the impugned acquisition was for a public purpose and no fraud was involved on the provisions of either the Old Act or the New Act. Learned counsel for the Respondents relied on Pratibha Nema and others vs. State of M.P. and others, 2003 10 SCC 626 , Pandit Jhandu Lal and others vs. State of Punjab and another, 1961 AIR(SC) 343 and Smt Somawanti and others vs. State of Punjab and others, 1963 AIR(SC) 151 in support of the above contentions.

[15] Learned Counsel for the Respondents submitted that in this case, the Petitioners applied for and secured a stay, restraining the Respondents from taking over the possession of their properties on 21 October 2013. They pointed out that this stay is continuing. Accordingly, they submitted that Explanation I to Section 6(1) and 11-A of the Old Act were attracted. Based upon the same, the learned counsel for the Respondents submitted that there was no lapsing of either the Section 6 declaration or the award dated 16 July 2016. They pointed out that there was not even a formal challenge to the award dated 16 July 2016. Learned counsel for the Respondents relied on Yusufbhai Noormohmed Nendoliya vs. State of Gujarat and another, 1991 4 SCC 531 , Government of T. N. and another vs. Vasantha Bai, 1995 Supp2 SCC 423 , State of Maharashtra and others vs. Moti Ratan Estate and another, 2019 8 SCC 552 , M. Ramalinga Thevar vs. State of T. N. and others, 2000 4 SCC 322 and Margarida Gomes Pereira vs. State of Goa and others, 1998 2 MhLJ 346 supporting the above contentions.

[16] Learned counsel for the Respondents submitted that a Bench comprising two judges delivered the decision in Executive Engineer, Gosikhurd Project Ambadi, Bhandara, Maharashtra Vidarbha Irrigation Development Corporation (supra). They submitted that subsequently, a three-Judge Bench of the Hon'ble Supreme Court in the case of Haryana State Industrial and Infrastructural Development Corporation Limited and others vs Deepak Aggarwal and others,2022 SCCOnLineSC 932 had taken a contrary view. Accordingly, they submitted that the decision in Executive Engineer, Gosikhurd Project Ambadi, Bhandara, Maharashtra Vidarbha Irrigation Development Corporation (supra) stands impliedly overruled and based upon the same, the acquisition proceedings could not be quashed.

[17] Learned Counsel for the Respondents submitted that the impugned award determines the compensation by following the principles under the New Act. This compensation has already been deposited. Accordingly, there is no prejudice to the Petitioners, who would now receive compensation under the provisions of the New Act.

[18] For all the above reasons, the learned Counsel for the Respondents submitted that this Petition may be dismissed.

[19] Mr Gatne submitted that the last contention about Executive Engineer, Gosikhurd Project Ambadi, Bhandara, Maharashtra Vidarbha Irrigation Development Corporation (supra) being impliedly overruled was raised but rejected by the Division Bench of this Court in the case of Sandesh Vitthal Thakur and others vs. Deputy Collector (Land Acquisition) and others,2024 SCCOnLineBom 151. He, therefore, submitted that such a contention ought not be entertained.

[20] However, the learned Counsel for the Respondents pointed out that the State had appealed this Court's decision to the Hon'ble Supreme Court. Notice was issued in this Special Leave Petition on 8 November 2024, and until further orders, the parties were directed to maintain the status quo.

[21] The rival contentions now fall for our determination.

[22] Some skeletal facts must be set out at the outset to appreciate the rival contentions in this Petition.

[23] The State issued Section 4 notification on 22 May 2013 declaring its intention to acquire the Petitioner's property described in paragraph 11 of this Petition for setting up a project concerned with the byproduct of the third Respondent's sugar factory. The last date of publication of this notification was 31 May 2013. The New Act came into force on 01 January 2014. The declaration under Section 6 was issued on 22 July 2014. The last date of publication of this declaration was 24 November 2014. The Award under Section 11 was made on 16 July 2016. At least about these dates, the Respondents raised no serious dispute.

[24] The Petitioners instituted Writ Petition No.9632 of 2013 to challenge the acquisition proceedings. On 21 October 2013, the Coordinate Bench of this Court made the following order:-

"At the request of the Counsel appearing for the Respondents, Stand over to 25 November 2013. Respondent No.3, SLAO, to proceed with the acquisition proceedings, however, possession shall not be taken, if award is passed in the mean time.

2. Issue notice to Respondent Nos.1 to 5, returnable on 25 November 2013. Learned AGP waives notice on behalf of Respondent Nos.2 & 3. Mr Singh learned Counsel waives service of notice on behalf of Respondent No.1 and Mr Deshmukh learned Counsel waives service of notice on behalf of Respondent No.5."

[25] On 27 February 2017, the Coordinate Bench disposed of Writ Petition No.9632 of 2013, granting the Petitioners liberty to file a fresh Petition with all available contentions. The interim protection about possession was extended for four weeks.

[26] Mr. Gatne submitted that the present petition was instituted pursuant to the liberty granted. By order dated 23 March 2017, the Coordinate Bench directed the status quo regarding possession. Mr. Gatne submitted that this interim relief has continued to the present, and consequently, the petitioners continue to possess the property proposed to be acquired.

[27] To begin with, we propose to consider the Petitioners' contention that the Section 6 declaration dated 22 July 2014 lapsed because it was issued beyond the six months set out in G.R. dated 14 June 2001 or the one-year period prescribed under clause (ii) of the first proviso to Section 6(1) of the Old Act.

[28] Section 6(1) of the Old Act reads as follows:

"6. Declaration that land is required for a public purpose.-

(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 5-A, sub-section (2), that any particular land is needed for a public purpose, or for a company, a declaration shall be made to that effect under the signature of a Secretary to such Government or of some officer duly authorised to certify its orders and different declarations may be made from time to time in respect of different parcels of any land covered by the same notification under section 4, sub-section (1), irrespective of whether one report or different reports has or have been made (wherever required) under section 5-A, sub-section (2):

Provided that no declaration in respect of any particular land covered by a notification under section 4, sub-section (1),-

(i) published after the commencement of the Land Acquisition (Amendment and Validation) Ordinance, 1967 (1 of 1967), but before the commencement of the Land Acquisition (Amendment) Act, 1984, shall be made after the expiry of three years from the date of the publication of the notification; or

(ii) published after the commencement of the Land Acquisition (Amendment) Act, 1984, shall be made after the expiry of one year from the date of the publication of the notification:

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

Explanation 1.- In computing any of the periods referred to in the first proviso, the period during which any action or proceeding to be taken in pursuance of the notification issued under section 4, sub-section (1), is stayed by an order of a Court shall be excluded.

Explanation 2.- Where the compensation to be awarded for such property is to be paid out of the funds of a corporation owned or controlled by the State, such compensation shall be deemed to be compensation paid out of public revenues."

[29] The record shows that Section 4 notification was issued on 22 May 2013, and its last publication date was 31 May 2013. Based on the same, Mr Gatne contended that the Section 6 declaration had to be made within one year from the last date of the publication of Section 4 notification, i.e. on or before 30 May 2014. However, he pointed out that the Section 6 declaration was made only 22 July 2014, and therefore, the same was hit by clause (ii) of the first proviso to Section 6(1) of the Old Act.

[30] Mr. Gatne's contention could have been accepted, but for the 1st Explanation to Section 6(1) of the Old Act. This Explanation provides that in computing any of the periods referred to in the first proviso, "the period during which any action or proceeding to be taken in pursuance of the notification issued under Section 4 sub-section (1), is stayed by an order of a Court shall be excluded."

[31] In the present case, as noted above, at the instance of the Petitioners, by order dated 21 October 2013, in Writ Petition No.9632 of 2013, the Respondents were restrained from dispossessing the Petitioners or taking over the possession of the Petitioners' properties pursuant to Section 4 notification dated 22 May 2013. According to the Petitioners' own case, this restraint continued for four weeks after this Court disposed of Writ Petition No.9632 of 2013 on 27 February 2017. Further, this restraint on taking over possession was continued in this Petition vide order dated 23 March 2017. This restraint continues to date. Accordingly, the 1 st Explanation referred to above does not suggest that the Section 6 declaration made on 22 July 2014 has lapsed.

[32] Mr. Gatne however, submitted that the interim orders made by this Court in the earlier Petition or in the present Petition had not restrained the Respondents from making a declaration under Section 6 of the Old Act. The restraint was only restricted to dispossessing the Petitioners or taking over possession of the Petitioners' property in pursuance of Section 4 notification dated 22 May 2013. He submitted that the 1st Explanation applied only when the stay of the Court disabled the State or the acquiring authority from issuing a declaration under Section 6 of the Old Act.

[33] Mr. Gatne's contention cannot be accepted because the 1 st Explanation to Section 6(1) explicitly states that in computing any of the periods referred to in the first proviso to Section 6(1), the period during which any action or proceeding to be taken in pursuance of the notification issued under Section 4 subsection (1), is stayed by an order of a Court shall be excluded. One of the actions or the proceedings to be taken in pursuance of the notification issued under Section 4(1) of the Old Act was taking over the possession of the Petitioners' property. Admittedly, this action or proceedings of taking over the possession of the Petitioners' property was stayed by this Court on 21 October 2013, and this stay was continued by an order dated 23 March 2017 in the present Petition. There is no dispute that this stay continues to date.

[34] Therefore, the interpretation proposed by Mr. Gatne cannot be accepted on a plain reading of the 1st Explanation to Section 6(1) of the Old Act. Besides, we note a similar Explanation to Section 11-A of the Old Act, based upon which the Petitioners have questioned the Award dated 16 July 2016 without formally challenging the same. The Hon'ble Supreme Court has interpreted the Explanation to Section 11-A in several decisions, and such precedents will apply to the interpretation of the 1st Explanation to Section 6(1) of the Old Act. The Hon'ble Supreme Court's precedents are proposed to be considered in the context challenge based inter-alia on the provisions of Section 11-A of the Old Act read with Section 24 of the New Act.

[35] The Petitioners have contended that since the acquisition, in the present case, commenced by the issue of Section 4 notification dated 22 May 2013 under the Old Act. Still, the Section 6 declaration dated 22 July 2014, and the Award dated 16 July 2016 was made under the New Act, the time limit of one year prescribed under Section 25 of the New Act and not the time limit of two years as prescribed under Section 11-A of the Old Act would apply. Based on these provisions and the decision of the Hon'ble Supreme Court in Executive Engineer, Gosikhurd Project Ambadi, Bhandara, Maharashtra Vidarbha Irrigation Development Corporation (supra) the Petitioners urged that the acquisition proceedings lapsed.

[36] Section 11-A of the Old Act reads as follows: -

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

[37] The Section which corresponds to Section 11-A of the Old Act is Section 25 of the New Act, which reads as follows:-

"25. Period within which an award shall be made.-The Collector shall make an award within a period of twelve months from the date of publication of the declaration under section 19 and if no award is made within that period, the entire proceedings for the acquisition of the land shall lapse:

PROVIDED that the appropriate Government shall have the power to extend the period of twelve months if in its opinion, circumstances exist justifying the same:

PROVIDED FURTHER that any such decision to extend the period shall be recorded in writing and the same shall be notified and be uploaded on the website of the authority concerned."

[38] Section 24 of the New Act deals with the lapsing or deemed lapsing of acquisitions commenced under the Old Act and is transcribed below for the convenience of reference:

"24. Land acquisition process under Act No. 1 of 1894 shall be deemed to have lapsed in certain cases.-

(1) Notwithstanding anything contained in this Act, in any case of land acquisition proceedings initiated under the Land Acquisition Act, 1894 (1 of 1894) -

(a) where no award under section 11 of the said Land Acquisition Act has been made, then, all provisions of this Act relating to the determination of compensation shall apply; or

(b) where an award under said section 11 has been made, then such proceedings shall continue under the provisions of the said Land Acquisition Act, as if the said Act has not been repealed.

(2) Notwithstanding anything contained in sub-section (1), in case of land acquisition proceedings initiated under the Land Acquisition Act, 1894 (1 of 1894), where an award under the said section 11 has been made five years or more prior to the commencement of this Act but the physical possession of the land has not been taken or the compensation has not been paid the said proceedings shall be deemed to have lapsed and the appropriate Government, if it so chooses, shall initiate the proceedings of such land acquisition afresh in accordance with the provisions of this Act:

PROVIDED that where an award has been made and compensation in respect of a majority of land holdings has not been deposited in the account of the beneficiaries, then, all beneficiaries specified in the notification for acquisition under section 4 of the said Land Acquisition Act, shall be entitled to compensation in accordance with the provisions of this Act."

[39] In a situation where the acquisition proceedings commenced under the Old Act but continued even after the New Act came into force on 01 January 2014, an issue arose in Executive Engineer, Gosikhurd Project Ambadi, Bhandara, Maharashtra Vidarbha Irrigation Development Corporation (supra) as to whether the limitation period of two years prescribed under Section 11-A of the Old Act or one year prescribed under Section 25 of the New Act would apply.

[40] The Hon'ble Supreme Court, after a detailed analysis, held that the period of one year prescribed under Section 25 of the New Act would apply. Therefore, if no Award were made within one year of the New Act coming into force, such land acquisition proceedings would lapse. To this period of one year, the Court added 79 days because of the stay granted on all acquisition proceedings pending resolution of this issue.

[41] In Executive Engineer, Gosikhurd Project Ambadi, Bhandara, Maharashtra Vidarbha Irrigation Development Corporation (supra), the Hon'ble Supreme Court, relying upon the decision of the Constitution Bench in case of Indore Development Authority (LAPSE-5 J.) vs. Manoharlal and others, 2020 8 SCC 129, held that though in Section 24(2) of the New Act, there was no express provision concerning the effect of an interim order of a Court granting a stay or injunction by which the authorities were disabled to take possession or make payment and the exclusion of such period, still, the omission of such exclusion and specific stipulation in Sections 19 and 69 of the New Act do not indicate any special legislative intent. Accordingly, the exclusion provision, similar to the Explanation to Section 11-A of the Old Act, was read into Section 24(2) of the New Act.

[42] The discussion in paragraphs 38 to 43 of the Executive Engineer, Gosikhurd Project Ambadi, Bhandara, Maharashtra Vidarbha Irrigation Development Corporation (supra) is transcribed below for the convenience of reference.

"38. The impugned judgment, however, holds that the period when the stay order dated 26-5-2014 (Panjabrao v. State of Maharashtra,2014 SCCOnLineBom 5103) was effective is inconsequential and irrelevant as the High Court had not stayed the acquisition proceedings. It is difficult to accept the aforesaid reasoning for the simple reason that it ignores the language of the interim order (Panjabrao v. State of Maharashtra,2014 SCCOnLineBom 5103) and its true effect in redetermination of compensation. The interim order passed by the High Court had inhibited further action on the part of the authorities to proceed with the acquisition of land.

39. Indore Development Authority (Indore Development Authority (LAPSE-5 J.) v. Manoharlal, 2020 8 SCC 129 : (2020) 4 SCC (Civ) 496) refers to a catena of authorities, including Abhey Ram v. Union of India, 1997 5 SCC 421), to give fitting meaning to the words "stay of action or proceedings" used in the proviso to Section 11-A of the 1894 Act to mean any type of order passed by a court, which in one way or the other prohibits or prevents the authorities from passing an award. This period of inhibition is excluded while computing the period for passing of the award by an authority, under Section 11-A of the 1894 Act. Further, the stay granted in the present case would be applicable to others also who had not obtained stay in that behalf.

40. In Indore Development Authority (Indore Development Authority (LAPSE-5 J.) v. Manoharlal, 2020 8 SCC 129 : (2020) 4 SCC (Civ) 496), with reference to Section 24(2) of the 2013 Act, the Constitution Bench has noticed that there is no similar provision for exclusion of time, though there is express provision for exclusion of time under Sections 19 and 69 of the 2013 Act. Nevertheless, the Constitution Bench, while discussing Issue 5 - "the effect of interim order of a court granting stay or injunction by which the authorities are unable to take possession or make payment and its exclusion", has observed that omission of such exclusion and specific stipulation in Sections 19 and 69 of the 2013 Act does not indicate any special legislative intent. The provision for exclusion of time was read into Section 24(2) of the 2013 Act. For the aforesaid purpose, the relevant portions of the judgment have been reproduced below: (SCC pp. 370-71, para 334)

"334. For all these reasons, it is held that the omission to expressly enact a provision, that excludes the period during which any interim order was operative, preventing the State from taking possession of acquired land, or from giving effect to the award, in a particular case or cases, cannot result in the inclusion of such period or periods for the purpose of reckoning the period of 5 years. Also, merely because timelines are indicated, with the consequence of lapsing, under Sections 19 and 69 of the 2013 Act, per se does not mean that omission to factor such time (of subsistence of interim orders) has any special legislative intent. This Court notices, in this context, that even under the new Act (nor was it so under the 1894 Act) no provision has been enacted, for lapse of the entire acquisition, for non-payment of compensation within a specified time; nor has any such provision been made regarding possession. Furthermore, non-compliance with payment and deposit provisions (under Section 77) only results in higher interest pay-outs under Section 80. The omission to provide for exclusion of time during which interim orders subsisted, while determining whether or not acquisitions lapsed, in the present case, is a clear result of inadvertence or accident, having regard to the subject-matter, refusal to apply the principle underlying the maxim actus curiae neminem gravabit would result in injustice."

41. In the context of absence of any provision excluding the period of operation of stay orders under Section 24(2), it was noted in Indore Development Authority case (Indore Development Authority LAPSE-5 J.) v. Manoharlal, 2020 8 SCC 129 : (2020) 4 SCC (Civ) 496) that the statute cannot provide for all possible scenarios, and it is for the courts to plug the gaps through the process of judicial interpretation by ascertaining the legislative intent. The Court resorts to construe the words of the provision in a reasonable way having regard to the context. Accordingly, it was held that Section 24(2) ousts the period spent during the interim stay, and no fault or inaction could be attributed to the authorities when the payment of compensation or taking possession of land was inhibited by operation of a stay order. In arriving at this finding, this Court relied on several judgments and treatises on statutory interpretation which elaborated on legal maxims encapsulated below:

(i) "lex non cogit ad impossibilia" - the law does not expect the performance of the impossible;

(ii) "actus curiae neminem gravabit" -- an act of the court shall prejudice no man;

(iii) "nemo tenetur ad impossibilia" - no one is bound to do an impossibility; and

(iv) "impotentia excusat legem" - where a person is disabled from performing a duty created by law, without any default in him, and has no remedy over, there the law will in general excuse him.

42. It was further concluded, based on the maxim "commodum ex injuria sua nemo habere debet" (meaning: convenience cannot accrue to a party from his own wrong), that the legislation did not intend for relentless litigants to derive the benefit of enhanced compensation under the 2013 Act, but rather to deliver advantage to those who accepted the compensation and handed over possession.

43. The aforesaid reasoning will be applicable to Section 25 of the 2013 Act as well. If interpreted otherwise, it would bring inconsistencies and would cause injustice."

[43] Based on the above, Mr. Gatne's contention based upon Section 24(2) of the New Act or Section 11-A of the Old Act cannot be accepted.

[44] The Hon'ble Supreme Court has rejected the contention that the stay order did not restrain the Respondents from making a declaration under Section 6 or passing an Award under the New Act in a series of decisions, including Indore Development Authority (supra).

[45] In any event, the above issue is no longer res-integra. In Yusufbhai Noormohmed Nendoliya (supra), in almost identical circumstances, the Petitioners contended that since the stay they obtained was only regarding their dispossession and since there was no stay on making a declaration under Section 6, the 1st Explanation to Section 6(1) would not apply. This argument was not accepted, having regard to the language of the statutory explanation and the legislative intent.

[46] In Yusufbhai Noormohmed Nendoliya (supra), the Hon'ble Supreme Court interpreted the Explanation below Section 11-A of the Old Act in the following terms: -

"8. The said Explanation is in the widest possible terms and, in our opinion, there is no warrant for limiting the action or proceedings referred to in the Explanation to actions or proceedings preceding the making of the award under Section 11 of the said Act. In the first place, as held by the learned Single Judge himself where the case is covered by Section 17 or otherwise. On the other hand, it appears to us that Section 11-A is intended to confer a benefit on a landholder whose land is acquired after the declaration under Section 6 is made in cases covered by Section 17 or otherwise. On the other hand, it appears to us that the Explanation is intended to confer a benefit on a landholder whose land is acquired after the declaration under Section 6 is made in cases covered by the Explanation. The benefit is that the award must be made within a period of two years of the declaration, failing which the acquisition proceedings would lapse and the land would revert to the landholder. In order to get the benefit of the said provision what is required, is that the landholder who seeks the benefit must not have obtained any order from a court restraining any action or proceeding in pursuance of the declaration under Section 6 of the said Act so that the Explanation covers only the cases of those landholders who do not obtain any order from a court which would delay or prevent the making of the award or taking possession of the land acquired. In our opinion, the Gujarat High Court was right in taking a similar view in the impugned judgment."

[47] To the same effect are the decisions of the Hon'ble Supreme Court in Vasantha Bai (supra), Moti Ratan Estate (supra) and M Ramalinga Thevar (supra). The Coordinate Bench of this Court in Margarida Gomes Pereira (supra) has also held similarly following Yusufbhai Noormohmed Nendoliya (supra).

[48] Accordingly, the Petitioners' contention regards the lapsing of the acquisition proceedings because the Section 6 declaration was made beyond the one-year period prescribed in clause (ii) of the first proviso to Section 6(1) of the Old Act or because the Award dated 16 July 2016 was made beyond the one-year limitation period prescribed under section 25 of the New Act will have to be rejected.

[49] The argument about Executive Engineer, Gosikhurd Project Ambadi, Bhandara, Maharashtra Vidarbha Irrigation Development Corporation (supra) being impliedly overruled by Haryana State Industrial and Infrastructural Development Corporation Limited (supra) is not required to be considered. Suffice, however, to note that a similar contention was rejected by the Coordinate Division Bench in Sandesh Vitthal Thakur (supra). The State has instituted an SLP against this decision in which notice and even status quo have been ordered. However, even going by the ratio of Executive Engineer, Gosikhurd Project Ambadi, Bhandara, Maharashtra Vidarbha Irrigation Development Corporation (supra), in the facts of the present case, the contention about lapsing cannot be accepted.

[50] The argument based on the G.R. dated 14 June 2001 also cannot be accepted. This G.R. only provides internal guidelines to the land acquisition authorities. It cannot be interpreted as introducing any timelines beyond which the acquisition proceedings would lapse. In any event, the timelines cannot conflict with those provided under the statute. The defence based on the statutory explanation would also apply. Based on all these grounds, the argument based on the GR cannot be accepted.

[51] The next major contention is that the acquisition is invalid and without jurisdiction because the third Respondent is not a "corporation owned or controlled by the State" as defined under Section 3(cc) of the Old Act.

[52] Section 3(cc) of the Old Act reads as follows:-

"3(cc) the expression "corporation owned or controlled by the State" means any body corporate established by or under a Central, Provincial or State Act, and includes a Government company as defined in section 617 of the Companies Act, 1956 (1 of 1956), a society registered under the Societies Regulation Act, 1860 (21 of 1860), or under any corresponding law for the time being in force in a State, being a society established or administered by Government and a co-operative society within the meaning of any law relating to co-operative societies for the time being in force in any State, being a co-operative society in which not less than fifty-one per centum of the paid-up share capital is held by the Central Government, or by any State Government or Governments, or partly by the Central Government and partly by one or more State Governments;"

[53] The Petitioners argued that though Section 3(f) of the Old Act defines the expression "public purpose" to include inter-alia "(iv) the provision of land for a corporation owned or controlled by the State;". Still, since the third Respondent was not a corporation owned or controlled by the State, any acquisition for its purposes could never be regarded as an acquisition for public purpose. Mr Gatne submitted that the existence of a public purpose was a sine-qua-non for a valid acquisition. Without any public purpose, the acquisition was a fraud on the provisions of the old or the new acquisition Acts. He submitted that the only option for the State was to acquire the Petitioners' property under Part VII of the Old Act or the equivalent provisions under the New Act. However, he contended that the present acquisition proceedings were without jurisdiction and should be declared as such.

[54] Mr Gatne firstly referred us to the document at page 85, which is a noting dated 15 June 2012, which suggests that the share capital of the State Government in the third Respondent was in the range of 35% of the total paid up capital. Secondly, he referred us to the document at page 131, which is again a noting which also suggested that the government shareholding in the third Respondent was about 35%. Thirdly, he referred us to the document at page 158, which is a response dated 27 May 2013 obtained under the RTI. This suggests that the State investment towards the share capital of the third Respondent was 1440 lakhs, which figure, precisely corresponds to the 35% share capital referred to in the previous noting of the State Government.

[55] Finally, Mr Gatne referred us to the document at page 246, which is a chart annexed along with the affidavit of the third Respondent. Based on this chart, he submitted that the State Government held a shareholding of 53.19% at the time of issue of Section 4 notification dated 22 May 2013, 44.29% at the time of issue of declaration under Section 6 dated 22 July 2014 and 42.92% at the stage of the Award dated 16 July 2016.

[56] Mr Gatne submitted that the expression "is held" under Section 3(cc) of the Old Act contemplates that the State Government holds 51% or more shareholding in a cooperative society with some elements of continuity at the stage of initiation of the acquisition proceedings, during the acquisition proceedings and at the stage of conclusion of the acquisition proceedings. He submitted that if this provision is interpreted otherwise, then, cooperative societies in which the State Government might invest or hold more than 51% of the share capital for an extremely short duration just before acquisition, would claim that the acquisition for the purposes of such a cooperative society was a public purpose. He submitted that such a interpretation would amount to a fraud on the provisions of the Old and the New Acts.

[57] Mr Gatne's arguments, based upon the construction of the provisions of Section 3(cc) of the Old Act and, to some extent, supported by the construction placed by the Hon'ble Supreme Court on the expression "is held" in the decisions in P. Anand Gajapathi Raju (supra) and F. S. Gandhi (dead) by LRs. (supra) cannot be lightly brushed aside. However, we are satisfied that in the facts of the present case, we do not need to decide this contention based on the equity participation percentage of the State Government. For reasons discussed hereinafter, even if we were to accept Mr Gatne's contention based upon Section 3(cc) of the Old Act, the same would make no difference to the outcome of this matter given the declaration dated 22 July 2014 (Exhibit-P at pages 115-116) made under Section 6 of the Old Act.

[58] The official translation of this declaration states that the Petitioners' land, amongst others, must be acquired for public purpose "at the partial cost of the Government". This partial funding of the acquisition by the Government or the partial contribution by the Government towards acquisition is a crucial factor based upon which we do not need to decide on Mr Gatne's contention regarding the percentage of State equity participation.

[59] Section 6(3) of the Old Act provides that the declaration under Section 6 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 a manner hereinafter provided.

[60] The Petitioners have nowhere challenged that the acquisition is partly at the cost of the State or that the State partly funds the acquisition. Without such a challenge, the statutory conclusivity accorded to a declaration under Section 6 of the Old Act cannot be displaced lightly. Once it is accepted that the acquisition, in this case, was being partly funded through the State exchequer or that the State was partly contributing to the acquisition, the issue of the State holding more than 51% of the share capital in the third Respondent becomes irrelevant or academic.

[61] Mr. Deshmukh, the learned counsel for the third Respondent, submitted that once the State was contributing to the acquisition or that the source of funds for the acquisition was partly through the State exchequer, there was no requirement for the State to act under Part VII of the Old Act and follow the procedure prescribed in the said chapter.

[62] Mr Deshmukh relied on Pratibha Nema (supra), in which it is held that the government's contribution of even a nominal sum towards compensation for acquiring land for setting up industry in the public sector would imbue such acquisition with a public purpose. The Court held that the distinction between public purpose acquisition and Part VII acquisition has been blurred under the impact of judicial interpretation of the relevant provisions. The main and perhaps decisive distinction lies in the fact whether the cost of the acquisition comes out of public funds wholly or partly. Here again, even a token or nominal contribution by the government has been held to be sufficient compliance with the second proviso to Section 6. The net result is that by contributing even a trifling sum, the government could change the character and pattern of acquisition. In the ultimate analysis, what is considered to be an acquisition for facilitating the setting up of an industry in the private sector could get imbued with the character of public purpose acquisition if only the government comes forward to sanction the payment of a nominal sum towards compensation. (see paragraphs 6, 9, 20 to 25).

[63] In Pandit Zandulal (supra) the Hon'ble Supreme Court held that the declaration for acquisition for a public purpose cannot be made unless the compensation, wholly or partly, is to be paid out of public funds. Therefore, in the case of an acquisition for a company simpliciter, the declaration cannot be made without satisfying the requirements of Part VII. But, that does not necessarily mean that an acquisition for a company for a public purpose cannot be made otherwise than under the provisions of Part VII, if the cost or a portion of the cost of the acquisition is to come out of public funds. In other words, the essential condition for acquisition for a public purpose is that the cost of the acquisition should be borne, wholly or in part, out of public funds. Hence, an acquisition for a company may also be made for a public purpose, within the meaning of the Act, if a part or the whole of the cost of acquisition is met by public funds. If, on the other hand, the acquisition for a company is to be made at the cost entirely of the Company itself, such an acquisition comes under the provisions of Part VII. As in the present instance, it appears that part at any rate of the compensation to be awarded for the acquisition is to come eventually from out of public revenues, it must be held that the acquisition is not for a company simpliciter. It was not, therefore, necessary to go through the procedure prescribed by Part VII.

[64] Thus, since the section 6 notification, in this case, refers to the partial funding of the acquisition by the State or through public funds and further, since section 6(3) of the Old Act provides that such declaration shall be conclusive evidence that the land is need for public purpose, the argument based on the shareholding of the State Government in the third Respondent society or the scope and import of the expression "is held" Section 3(cc) of the Old Act need not be gone into. Such an argument, at least in the facts of this case, is primarily academic. Besides, there is also some dispute on the extent of the State's shareholding. The state has also not bothered to file any affidavit, though this Petition was instituted in 2017.

[65] The argument about the impugned acquisition being a fraud on the provisions of the Old Act or the New Act is also untenable, at least in the facts of the present case. The challenges based on the limitation provided by clause (ii) of the first proviso to Section 6 or Section 11-A are untenable. At the highest, the challenge based on State Government shareholding in the context of Section 3(cc) requirement is arguable. However, even if the contentions based on this contention were to be sustained, the impugned acquisition would have to be upheld, given the declaration in Section 6 of the Old Act that the acquisition was partly funded by the State or through the State exchequer.

[66] For all the above reasons, we are constrained to dismiss this Petition. All concerned parties should act upon an authenticated copy of this order.

[67] The interim order restraining the Respondents from taking possession has been in effect since 2013. Therefore, we extend it by eight weeks should the Petitioners wish to challenge this decision before the Hon'ble Supreme Court.

[68] All concerned should act on authenticated copy of this order