Umesh Aggarwal v. State of U. P — 1989 DIGILAW 274 (ALL)

JUDGMENT S.N. Sahay, J. - This is a petition to quash two notifications issued by the State Government under the Land Acquisition Act, 1894. The first notification, dated 9th August, 1987 was issued under Section 4 and the second notification, dated June 17, 1988 was issued under Section 6 of the Act. Certain plots of land described in the said notifications, situate in village Bhitauli Khurd and Muttakipur, Pargana and District Lucknow are being acquired for the establishment of Indian Institute of Management, Lucknow. 2. It is contended by the learned counsel for the petitioner that the declaration under Section 6 has been made after the expiry of the mandatory period of one year from the date of publication of notification under Section 4 and, therefore, the aforesaid notifications are invalid and liable to be quashed. In support of this contention, the learned counsel has relied on the fact that the declaration under Section 6 was published on January 10, 1989 in 'Navjiwan', a daily newspaper, published from Lucknow. 3. It will appear from a perusal of Section 4(1) that 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 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 to the substance of such notification to be given at convenient places in the said locality. It is further provided that the last of the dates of such publication and the giving of such public notice shall be referred to as the date of publication of the notification, 4. After the publication of the notification under Section 4, there is a provision for hearing under Section 5A of objections, which may be preferred by any person interested, with regard to the proposed acquisition of the land. The enquiry under Section 5A. however, may be dispensed with in case of urgency in accordance with the provisions of Section 17. Then comes Section 6 which reads as follows: "6. The enquiry under Section 5A. however, may be dispensed with in case of urgency in accordance with the provisions of Section 17. Then comes Section 6 which reads as follows: "6. Declaration that land is required for 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 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 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 5A, 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 revenue 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 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 revenue., (2) 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 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. (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." 5. According to the provision of sub-section (1) of Section 4 the notification which is issued thereunder is to' be published in the Official Gazette and in two daily newspapers and public notice of the substance of such notification is to be given at convenient places in the locality. In other words, the mode of issuing the notification is publication of the notification in the Gazette and two daily newspapers in the locality and the giving of public notice of the substance of the notification in the locality. In other words, the mode of issuing the notification is publication of the notification in the Gazette and two daily newspapers in the locality and the giving of public notice of the substance of the notification in the locality. In order to make certain as to what will be regarded as the date of publication of the notification, it is provided that the last of the dates of such publication and the giving of such public notice shall be deemed to be the date of the publication of the notification. 6. On the other hand, the language of sub-section (1) and sub-section (2) of Section 6 suggests that two steps are to be taken. The first step, which is to be taken by the appropriate Government, is to make a declaration to the effect that the land is needed for a public purpose and the second step, is to cause that declaration to be published. After September 24, 1984 which is the date of the commencement of the Land Acquisition (Amendment) Act, 1984, the declaration is to be made before the expiry of one year from the date of the publication of the notification under Section 4. When the declaration is made, it is required that the declaration shall be published in the Official Gazette and in two daily newspapers circulating in the locality in which the land is situate. Apart from this, the Collector is also required to cause public notice of the substance of the declaration to be given at convenient places in the locality. Since the date of publication in the Official Gazette and in two daily newspapers as well as the giving of public notice in the locality may not synchronise and doubt may arise as to the date of publication of the declaration in subsequent proceedings, it is provided that in such proceedings the last of the dates of such publication and the giving of public notice shall be regarded as the date of publication of the declaration. It may be mentioned, for instance, that there is a reference to the date of publication of the declaration in Section 11A. 7. It may be mentioned, for instance, that there is a reference to the date of publication of the declaration in Section 11A. 7. The relevant portion of sub-section (2) of Section 6 is the last of the dates of such publication and the giving of such public notice, being hereinafter, referred to as the date of, "publication of the declaration." The use of the word 'hereinafter' is significant. No such words as in this section or 'in this Act' or 'herein before have been used in place of the word 'hereinafter'. There is no provision that the publication of the declaration in the Official Gazette and two newspapers and the giving of the public notice, all are to be done before the expiry of one year from the date of publication of the notification under Section 4. In our opinion, the contention of the learned counsel for the petitioner has no force and it is not required by law that the declaration under Section 6 should have been published in the Official Gazette and two newspapers and public notice of that declaration should have been given in the locality before the expiry of one year from the date of publication of the notification under Section 4. 8. The learned counsel for the petitioner has referred to two cases, namely, The Land Acquisition Officer v. Hyderabad Urban Development Authority 1986 A.C.J. 332 and Rameshwar Saran v. State of U.P., 1988 (14) A.L.R. 446. In the first mentioned case, the principal question was as to whether on a true interpretation of sub-section (1) of Section 4 public notice of the substance of the notification under that section must be given in the locality on the same day on which the notification was published in the Official Gazette and if it was not so, whether that would have an invalidating consequence. Their Lordships of the Supreme Court referred to an earlier decision in Deepak Pahwa's case and made the following observations. "This Court held in Deepak Pahwa v. Lt. Their Lordships of the Supreme Court referred to an earlier decision in Deepak Pahwa's case and made the following observations. "This Court held in Deepak Pahwa v. Lt. Governor of Delhi, (1984) 4 S.C.C. 308 that though publication in the Official Gazette and public notice in the locality are two vital steps required to be taken under sub-section (1) of Section 4 without which the steps contemplated under Section 4, Sub-section (2) cannot be undertaken, there is nothing in sub-section (1) of Section 4 which requires that the publication in the Official Gazette and public notice in the locality must be simultaneous or immediately after one another. The Court pointed out that what sub-section (4) requires, is that publication in the Official Gazette and public notice in the locality must be contemporaneous but contemporaneity does not involve simultaneity or intermediary. There is bound to be a gap of time between publication of the Official Gazette and public notice in the locality but what is necessary is that they should not be separated by such a long interval of time that the continuity of action may appear to be broken by a deep gap. The Court observed. "If there is publication in the Gazette and if there is public notice in the locality, the requirement of Section 4(1) must be held to be satisfied unless the two are un-liked from each other by a gap of time so large as may lead one to the prima facie conclusion of lack of bona fides in the proceedings for acquisition. If the notification and the public notice are separated by such a large gap of time, it may become necessary to probe further to discover if there is any cause for the delay and if the delay has caused prejudice to anyone." 9. In the present case the declaration under Section 6 was admittedly published in the Official Gazette on June 17, 1988 vide Paragraph 8 of the writ petition. 10. There is no averment that the gap between the publication of the declaration under Section 6 in the Official Gazette and Navjivan was so large as to lead to the conclusion that the proceedings for acquisition lacked bona fides. Consequently, there is no occasion to prove further to discover if there is any cause for the delay or if any prejudice has been caused to anyone by the delay. 11. Consequently, there is no occasion to prove further to discover if there is any cause for the delay or if any prejudice has been caused to anyone by the delay. 11. In the case of Rameshwar Saran (cited supra) the question was whether the notification under Section 4(1) published in the Official Gazette would survive if it is found that the other two modes of publication have not been resorted to by the authorities. It was held that the law makes it clear that when all these three modes are carried out, then only the provisions of Section 4(2) of the Act would come into play and without compliance of Section 4(1)) no notification under Section 6 of the Act can be issued, it was held that since all the three modes of publication envisaged under Section 4(1) of the Act has not been completed, no notification under Section 6(1) of the Act could have been published. 12. The learned counsel for the petitioner has placed reliance on Satbir Singh v. State of U.P. and others, A.I.R. 1988 All. 177 : 1988 (14) A.L.R. 34 (Sum.) In that case notification under Section 4 of the Land Acquisition Act, 1894 was published in the Gazette on June 11, 1985, and in Daily News Papers on July 19, 1985. The Notification under Section 6 was published in the Gazette on June 13, 1985 and in Newspapers on July 25, 1985. However, the substance of both the notifications was given at convenient places in the locality on July 25, 1985 it was contended that since the substance of the two notifications contemplated by the provisions of Sections 4 and 6 was given in the locality on July 25, 1985, the acquisition of land was bad in law. According to the petitioners, the two notifications contemplated under the provisions of Sections 4 and 6 of the Act, cannot be published on the same date. This contention was upheld by a Division Bench of this Court which relied on the case of Kashmir Singh v. State of U.P. and others, 1986 (12) A.L.R. 14. 13. In the case of Kashmir Singh (supra), a notification was issued under Section 4 of the Land Acquisition Act, 1894 on May 6, 1985. The Notification contained a declaration that since there was urgency for the acquisition,. 13. In the case of Kashmir Singh (supra), a notification was issued under Section 4 of the Land Acquisition Act, 1894 on May 6, 1985. The Notification contained a declaration that since there was urgency for the acquisition,. the provisions of Section 17(1-A) and 17(4) shall apply and the provisions of Section 5A, shall not apply. On the same date, namely May 6, 1985, another notification was issued under Section 6 of the Act. This Notification also contained a direction as contemplated by Section 17(1) and (1-A) of the Act authorising the Collector to take possession of the land even before the declaration of the award under Section 11 of the Act. Both the aforesaid Notifications were published on the same date, namely May 22, 1985. It was contended that in view of the amendments introduced by the Land Acquisition (Amendment) Act, 1984 (Act No. 68 of 1984), the declaration as contemplated by Section 6 cannot be made on the same date on which the Notification under Section 4 of the Act is published; instead now after the amendment the Notification under Section 6 of the Act could only be issued after the notification under Section 4 is published. Accepting this contention it was held as follows: "Prior to the amendment of the Act by the Amending Act No. 68 of 1984, it was permissible for the Government to issue notification under Section 4 and further to make declaration as contemplated by Section 6 of the Act simultaneously and it was further permissible to punish both the notifications simultaneously as was held by the Supreme Court in Smt. Somawanti v. State of Punjab, A.I.R. 1963 S.C. 151." 14. Thus prior to the amendment Section 17(4) by the Amending Act No. 68 of 1984, a declaration as contemplated by Section 6 of the Act, can be made after the date of publication of the notification under Section 4(1) of the Act. In view of this amendment, Notification under Section 6 of the Act has to be made after the notification under Section 4(1)) of the Act is published. The expression after the date of publication of the notification" as added to sub-section (4) of Section 17 of the Act, contemplates the issue of notification under Section 6 of the Act only after the publication of the notification under Section (1) of the Act. The expression after the date of publication of the notification" as added to sub-section (4) of Section 17 of the Act, contemplates the issue of notification under Section 6 of the Act only after the publication of the notification under Section (1) of the Act. Prior to the amendment, the declaration under Section 6 of the Act could be made simultaneously with the publication of the notification under Section 4(1) of the Act. But, now after the amendment, a declaration can be made only after the date of publication of the notification under Section 4 of the Act. This means that there must be difference of dates between the date of publication of the notifications under Sections 4 and 6 of the Act, now, after the amendment both the notifications cannot be published on the same date The publications of the notification under Sections 4 and 6 of the Act on the same date would be contrary to sub-section (4) of Section 17 of the Act as amended by Act No. 68 of 1984, which would render the notification under Section 6 of the Act invalid. 15. Accordingly, it was held in Kashmir Singh's case (supra) that the notification under Section 6 of the Act needed for a public purpose, which was published simultaneously with the notification under Section 4(1) of the Act on the same date, namely May 22, 1985, was in clear violation of Section 17(4) of the Act and was illegal. 16. After referring to the observations quoted above, it was held in the case of Satbir Singh (supra) that the notification under Section 6 is in clear violation of the provisions of Section 17(4) of the Act and is illegal and therefore, the plots in question could not be acquired in pursuance of the impugned notification under Section 6 of the Act. 17. It may be stated that the amended provision of Section 17(4) of the Act, is that in the case of any land to which, in the opinion of the appropriate Government, the provisions of sub-section (1) or sub-section (2) are applicable, the appropriate Government may direct that the provisions of Section 5A, shall not apply and if it does so direct, a declaration may be made under Section 6 in respect of the land at any time after the date of the publication of the notification under Section 4(1) of the Act. 18. 18. The reference to the date of publication of the notification under Section 4(4) shall be construed as a reference to the last of the dates of the publication of the notification in the official gazette and in two daily newspapers and the giving of public notice, of the substance of such notification at convenient places in the locality. This is clear from the provisions of Section 4(1) itself. 19. It will appear that in the case of Kashmir Singh and Satbir Singh, the question which was considered by the Court was whether the notifications under Sections 4 and 6 of the Act, could be published on the same date or not and if they were published on the same date, whether, the notification under Section 6 would be valid in view of the amended provisions of Section 17(4). The question which arises for consideration in this case did not specifically arise in those two cases. From the decisions given in those cases, it cannot be necessarily implied or inferred that' the last of the date of publication of the notification under Section 6 in the Official Gazette and in two daily Newspapers and the giving of public notice of such declaration at convenient places in the locality as contemplated by sub-section (2) of Section 6 of the Act, must also fall within the time-limit specified in sub-section (1) of Section 6 for making the declaration. Incidentally it may be mentioned that in the case of Kashmir Singh, there was a difference in dates inasmuch as the declaration under Section 6 was made on May 6, 1985 but was published on May 22, 1985. However, this aspect of the matter was not adverted to and the significance of the dichotomy in the making and publication of the declaration under Section 6 was not discussed. Therefore, the case of Satbir Singh (supra) does not help the petitioners. 20. However, this aspect of the matter was not adverted to and the significance of the dichotomy in the making and publication of the declaration under Section 6 was not discussed. Therefore, the case of Satbir Singh (supra) does not help the petitioners. 20. In a case recently reported in Kaliyappan v. State of Kerala and others, A.I.R. 1989 S.C. 239 the provisions of Section 11A of the Land Acquisition Act, 1894, were considered by their Lordships of the Supreme Court Section 11A which was introduced by the Land Acquisition (Amendment) Act, 1984, provides that 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 the period, the entire proceeding of 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. The Explanation to Section 11A, provides that 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. 21. It was contended that the award not having been made within a period of two years from the date of the commencement of the aforesaid Amendment, Act, i.e. September 24, 1984, as required by the proviso to Section 11A, the Acquisition proceedings should be deemed to have elapsed and that the land acquisition proceedings were liable to be quashed on the ground that there was inordinate delay in making the award. This contention was repelled and it was held as follows:- "Under Section 11A of the Act the Collector is empowered to make an award before the expiry of the period of two years from the date of the publication of the declaration under Section 6 of the Act and in a case where the said declaration has been published before the commencement of the Land Acquisition (Amendment) Act, 1984 before the expiry of the period of two years from the date of its commencement. If an award is not made within the prescribed period of two years in either case, it is open to the person interested in the land to approach the Collector and tell him that the acquisition proceeding should be dropped, unless the Collector is able to produce before him an award made by him within the period of two years. He may also in such a case question the continuance of the acquisition proceeding in Court. Thus no prejudice will be caused to the person interested in the land. At the same time it would not be open to a person interested in the land to get rid of the acquisition of proceeding by avoiding service of notice issued by the Collector within the prescribed period. We are of the view that under Section 11A proof the Act the words 'the Collector shall made an award......within a period of two years from the date of the publication of the declaration' mean that the Collector is empowered to make an award till the expiry of the last date of the period of two years irrespective of the date on which the notice of the award is served upon the persons interested in the land to make an award in this section means 'sign the award'. That is the ordinary meaning to be ascribed to be words 'to make an award'." 22. The above view was taken by their Lordships after considering the fact that in the Statement of Objects and Reasons attached to the Bill introducing the above-mentioned Amendment Act, it was said that the pendency of acquisition proceeding for long periods often causes hardship to the affected parties and renders unrealistic the scale of compensation offered to them. The earlier case of Raja Harish Chandra Raj Singh v. Deputy Acquisition Officer, 1969 1 S.C.R. 636 : A.I.R. 1961 S.C. 1500 was also distinguished C19 on the ground that there was no analogy between Section 11A, and Section 18 of the Act The observations extracted above, from the Kaliyappan's case clearly support the view that the words "make a declaration" used in Section 6 of the Act are to be understood in the sense of 'sign a declaration', as distinguished from publication of declaration. It will accordingly, be sufficient for the purpose of Section 6 if the declaration has been signed within the statutory period of one year as enjoined upon under that Section and it does not matter that the declaration has not been published in the manner indicated in that Section within the said period. 23. In view of the foregoing discussion, it is clear that the contention of the learned counsel for the petitioner is not tenable. The notification under Section 4(1) was issued on 19th August, 1987, vide Annexure 1, and the declaration under Section 6(1) was admittedly made on 27th June, 1988 which is within one year from the date of the notification under Section 4(1) The fact that the declaration was published in 'Navjiwan' on January 10, 1989 will not go to invalidate the declaration under Section 6(1). 24. The result is that there is no force in this petition and it is hereby dismissed summarily.