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1989 DIGILAW 234 (KER)

Bhaskaran Panicker v. State of Kerala

1989-06-21

BHASKARAN NAMBIAR, MALIMATH

body1989
Judgment :- 1. This appeal is directed against the judgment of the learned single judge dismissing the appellants' writ petition, O.P.No.10051 of 1988. Land belonging to the appellants is sought to be acquired for a public purpose, to wit for the construction of a Shopping Centre, office complex, godown etc. for Neyyattinkara Municipality. Preliminary notification under S.4(1) of the Land Acquisition Act was published in the Gazette on 15-9-1987. It was published in a daily newspaper, Kerala Kaumudi on 25-8-87 and in another daily newspaper Mathrubhoomi on 28-8-87. It was published in the locality on 12-10-87. The appellant's objections to the proposed acquisition were considered and a decision was rendered by the Board of Revenue as per Ext.P2 dated 7-10-1988 overruling his objections and approving the draft declaration under S.6. The said order states that the Land Acquisition Officer will cause publication of the declaration in the gazette and newspapers. The declaration so made under S.6 on 7-10-1988 was published in the gazette on 11-10-1988. It came to be published in the daily newspaper Kerala Kaumudi on 11-10-1988 and in another daily newspaper Malayala Manorama on 12-10-1988. So far as the publication in the locality is concerned, it is stated that it was done on 7-10-1988, immediately after the declaration was made under S.6, on the very same date. 2. The appellants challenged the declaration under S.6 dated 7-10-1988 and published in the gazette as per Ext.P3 dated 11-10-1988 in the aforesaid writ petition. The principal attack against the said notification is that it was not made within the time prescribed by clause (ii) of the proviso to S.6(1) of the Land Acquisition Act. The said proviso which governs this case states that "no declaration in respect of any particular land covered by a notification under S.4 sub-section (1),- (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." The contention of the appellants is that the declaration under S.6 can be regarded as having been made only when it is published in accordance with sub-section (2) of S.6. What clause (ii) of the first proviso to sub-section (1) of S.6 provides is that no declaration shall be made (underlining is ours) after the expiry of one year from the date of publication of the notification under S.4. What clause (ii) of the first proviso to sub-section (1) of S.6 provides is that no declaration shall be made (underlining is ours) after the expiry of one year from the date of publication of the notification under S.4. In order to determine the date of . publication of the notification under S.4(1), we shall have to look into S.4(1) which reads: "4(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 or for a company, a notification to that effect shall be published in the official gazette and in two daily newspapers circulating in that locality of which at least one shall be in the regional language and the Collector shall cause public notice of the substance of such notification to be given at convenient places in the said locality (the last of the dates of such public notice, being hereinafter referred to as the date of publication of the notification)." The notification under S.4 is required to be published in three different modes, namely, (1) in the official gazette, (2) in two daily newspapers circulating in the locality of which at least one should be in the regional language and (3) publication of substance of the notification at convenient places in the said locality. It is the last of the dates of such publication that is deemed to be the date of publication of the notification under S.4(1). Clause (ii) of the first proviso to sub-section (1) of S.6 states that no declaration in respect of the land covered by a notification under S.4, sub-section (1) shall be made after the expiry of one year from the date of the publication of the notification. What is contemplated by this provision is the making of the declaration under S.6(1) and not the publication of the declaration. Clause (ii) of the proviso to S.6(1) speaks of the publication of the notification under S.4(1) and not of the notification under 6(1). As regards the notification under S.6(1), what is contemplated is its making and not its publication. What is contemplated by this provision is the making of the declaration under S.6(1) and not the publication of the declaration. Clause (ii) of the proviso to S.6(1) speaks of the publication of the notification under S.4(1) and not of the notification under 6(1). As regards the notification under S.6(1), what is contemplated is its making and not its publication. The declaration made under S.6 is however required to be published as provided in sub-section (2) of S.6(1) which reads: "Every declaration shall be published in the official gazette, and in two daily newspapers circulating in the locality in which the land is situate of which at least one shall be in the regional language, and the Collector shall cause public notice of the substance of such declaration to be given at convenient places in the said locality (the last of the dates of such publication and the giving of such public notice, being hereinafter referred to as the date of the publication of the declaration, and such declaration 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." What is contemplated by sub-section (2) of a S.6 is therefore publication of the declaration already made under S.6(1) in three different modes, namely, (1) in the official gazette (2) in two daily newspapers circulating in the locality in which the land is situate of which at least one shall be in the regional language and (3) publication of the substance of the declaration to be given in a convenient place in the said locality. Though publication is required to be made in three different ways, it is provided "the last of the dates of such publication and the giving of such public notice, being hereinafter referred to as the date of the publication of the declaration." It is therefore clear that the statutory fiction created regarding the deemed date of publication of the declaration is not for the purpose of sub-section (1) of S.6 but in regard to later provisions. Hence the same has no bearing on interpreting clause (ii) of the said proviso to S.6(1) of the Act. Hence the same has no bearing on interpreting clause (ii) of the said proviso to S.6(1) of the Act. The publication of the declaration contemplated by sub-section (2) should not be confused with the making of the declaration contemplated by sub-section (1) of S.6. The declaration under sub-section (1) of S.6 is made when the declaration is duly signed by the authority competent to make the declaration. It is the date of signing of such declaration, that has to be regarded as the date on which the declaration is made. Though it is obligatory on the part of the authorities to publish such a declaration in the manner provided under S.6(2) of the Act, none of the dates of such publication can be regarded as the date on which the declaration is made. This Court had occasion to consider a similar expression "shall make an award" occurring in S.11A of the Act in 1988(1) K.L.T. 284 between Kaliyappan v. State of Kerala. That decision has since been affirmed by the Supreme Court in the decision reported in 1988(2) K.L.T.937. It has now been authoritatively laid down that the award is made when it is signed and not when it is published. A similar expression has been used in clause (ii) of the first proviso to S.6(1) of the Act, it has to be held following the said decisions that the declaration contemplated by sub-section (1) of S.6 has to be regarded as having been made as on the date on which it is signed. As the declaration under S.6(1) was signed in this case on 7-10-1988, it is clear that that is the date on which the declaration under S.6(1) was made. The notification under S.6(1) dated 7-10-1988 was made within a period of one year from 12-10-1987, the date of publication of the notification under S.4(1). We have therefore no hesitation in repelling the contention of the appellants that the declaration under S.6(1) was made in this case after the expiry of one year from the date of publication of the notification under S.4(1). No other contention was urged by the learned counsel for the appellants. For the reasons stated above, this appeal fails and is dismissed. Dismissed.