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Allahabad High Court · body

1990 DIGILAW 891 (ALL)

Chatar Singh v. State of U. P

1990-10-05

D.S.SINHA, OM PRAKASH

body1990
JUDGMENT Om Prakash, J. - This is a bunch of as many as 41 writ petitions field by various petitioners commonly praying for quashing the notifications issued under Sections 4 and 6 and notices issued under Section 9 of the Land Acquisition Act, 1894 briefly 'the Act' to them. Involving common question of law and facts and common arguments advanced on behalf of the parties, all these cases are consolidated and disposed of by a common order. 2. To acquire the land of the petitioners a single notification under Section 4 of the Act, was issued on 30.10.1987. It was published in the Gazette, on 27.2.1988. As certain crores crept in the notification and as on that account correction was necessitated publication in the news papers and by way of public notice was made thrice. Last publication, as stated in sub-section (1) of Section 4, of the notification issued under Section 4 was made in two news papers, namely, Hint and Dainik Pralayankar, on 24.6.1989. Thereafter a declaration as required by Section 6 of the Act was published in the Gazette dated 15.12.1989 and last publication, as envisaged in sub-section (1) of Section 6 of the Act, of such declaration was made on 5.2.1990 in the aforesaid two newspapers. Thus, the notifications under Sections 4 and 6 stood published on 24.6.1989 and 5.2.1990 respectively. 3. The Gazette notification of the declaration is Annexure 10' to the writ petition. It is a composite notification stating that the Governor is satisfied that the land mentioned in the schedule appended to the declaration is required for public purpose, that a direction was issued to the Collector Ghaziabad as envisaged by Section 7 of the Act to take order for the acquisition of the land and to take possession of the land on account of urgency though no such award has been made, after the expiry of 15 days, as provided in sub-section (1) of Section 17, from the date of publication of the notice as mentioned in sub-section (1) of Section 9 of the Act. 4. The submissions made by Sri N. Lal, learned counsel for the petitioner in writ petition No. 3318 of 1990, have been adopted by the learned counsel appearing for the remaining petitioners. 4. The submissions made by Sri N. Lal, learned counsel for the petitioner in writ petition No. 3318 of 1990, have been adopted by the learned counsel appearing for the remaining petitioners. They are as follows : (i) In the notification published in the Gazette on the one hand and in the newspapers and in the locality on the other hand, the plots and the area thereof were at variance and, therefore the notification issued under Section 4 is invalid; (ii) that the notification issued under Section 4 did not indicate the last date of publication and, therefore the petitioners were deprived of their right of filing objections within the proscribed time, and such omission also invalidates the notification issued under Section 4 of the Act; (iii) that the substance of the declaration, public notice of which was caused to be given by the Collector is not legal, in as much as it does not state that the State Government was satisfied and that the land was acquired for public purpose (iv) that direction as contemplated by Section 7 was issued to the Collector on 15.12.1989 before the declaration having been made under Section 6 of the Act and, therefore the notification under Sections 4 and 6 are vitiated; and (v) that notices issued under Section 9 were vitiated, inasmuch as they were given before the publication of Section 6 notification and inasmuch as they cut short 15 days period, as required to be given in sub-section (1) of Section 9; 5. We deal with the above submissions seriatim. The first two submissions raised the question whether the notification issued under Section 4 of the Act was vitiated for the reasons advanced by Sri N. Lal. The said notification is said to be invalid on two grounds; firstly, that the plots and the area as mentioned in the notification published in the Gazette varied in the notification as published in the two newspapers and, secondly, that the last date of publication having not been mentioned in the notification, the petitioners were deprived of their legal right of filing objections within the time, as provided by Section 5-A of the Act. 6. 6. Upon perusal of the notification issued under Section 4 as published in the Gazette (Annexure 4 to the writ petition), it appears that notification comprised of myriad plots having small or big area aggregating to 502 bighas 5 biswas 4 biswans is or 313.91 acres. Later it was discovered that certain errors crept in the notification as published in the Gazette on 27.2.1988 and while correcting the errors, certain modifications were made resulting into enhancement of the area from 313.91 acres to 325.353 acres. 7. The contention of Sri N. Lal is that whereas in the notification published in the Gazette, the area was 313.91 acres only, in the notification published in the newspapers the area augmented 325.353 acres. The question for consideration is whether such variation has invalidated etc. the notification issued under Section 4. In Barkya Thakur v. State of Bombay, AIR 1960 SC 1203 , it was held that the purpose of the notification under Section 4 is to carry on a preliminary investigation with a view to finding out, after necessary service and taking of leveis and after necessary digging or boring into the sub-soil whether die land was adapted for the purpose for which it was sought to the acquired. It is only under Section 6 that a firm declaration has to be made by he Government that land with proper description and area, so as to be indemnification, is needed for a public purpose. What was a mere proposal under Section 4 becomes the subject matter of a definite proceeding for acquisition under the Act observing so the Supreme Court enunciated that it is not correct to say that any defect in the notification under Section 4 is fatal to the validity of the proceedings, particularly when the matter is 10 be investigated under Section 5-A of the Act, In M/s. Tinsukia Development Corporation Ltd. v. State of Assam, AIR 1961 Assam 113 (FB) a view was taken that vagueness as to area in the notification under Section 4 but not in notification under Section 6, does not vitiate land acquisition proceedings. Where after the notification is issued under Section 4, persons interested I have field objections under Section 5-A before the Collector, the Full Bench held that it cannot be said that they were in any way mislead by the absence of proper description of the land in the notification issued under Section 4. 8. Relying upon the aforesaid decisions and considering the statutory provisions, we are of the considered view that Section 4 notification will not be vitiated on account of variation in the area, as mentioned in the notification issued for correction and in the notification issued for correction and in the notification published in the Gazette. Upon perusal of the declaration made under Section 6 (Annexure 10 to the writ petition; it appears that the area was reduced from 313.91 acres, as originally mentioned in the Gazelle published on 27.2.1988, to 309.06 acres. Undisputedly the area set out in the declaration issued under Section 6 remained undisturbed and opportunity of filing objection under Section 5-A was given to the petitioners. In paragraph 9 of the counter-affidavit, sworn by Sri Basdeo Gupta on behalf of the respondent No. 2, it is clearly stated that time for filing objection was given to the affected persons and that objections had been received from some petitioners against the notification issued under Section 4. In paragraph 9 of the rejoinder-affidavit, the petitioners have not denied the averment made by the respondent No. 2 in paragraph 9 of the counter-affidavit. Therefore, the question arises whether the petitioners were in any way prejudiced by the variation made in the area. Whereas the Counsel for the petitioners urged that both the plots and the area were at variance after correction, learned counsel fort the respondent No. 3 submitted that the variation was only with regard to the area and not to the plots. Be that as it may, the petitioners having had the opportunity of filing objections under Section 5-A of the Act, we are of the view that no prejudice was caused to them by the variation made with regard to the area or the number of plots. As held by the Supreme Court in Barkaya Thakur case (supra), the notification issued under Section 4 is only preliminary one enabling the authorities to enter upon the land and it is only the declaration made under Section 6 which is final. As held by the Supreme Court in Barkaya Thakur case (supra), the notification issued under Section 4 is only preliminary one enabling the authorities to enter upon the land and it is only the declaration made under Section 6 which is final. When area was reduced in the declaration made under Section 6, no prejudice can be said to have been caused to the petitioners. Since varying plots having varying area, big or small, are comprised in the notification, the possibility of an error in regard to the details or description of the plots cannot be ruled out. But every venial discrepancy cannot render the notification to be invalid. The petitioners have not set out the pleadings relating to the variation and simply stated in paragraph 9 of the rejoinder-affidavit filed by Sri Tejpal Singh that whereas the plots sought to be acquired are about 130 as disclosed in the notification published in the Gazette, the notice alluded to only to 10 plots. On such inadequate and vague pleadings, the notification issued under Section 4 cannot be held to be invalid, specially when the petitioners had full opportunity to point out such discrepancy under Section 5-A by way of filing objections. 9. Then comes the question whether the notification issued under Section 4 was invalidated on the ground that it failed to indicate the last date of publication. Sub-section (1) of Section 4 reads that whenever it appears to the appropriate Government that the land in any locality is needed or is likely to be needed for any public purpose, a notification to the effect shall be published in the official gazette and in two daily newspapers circulated official Gazette and in two in the relevant locality, of which atleast 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 date 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 notification) Sub-section (1) of the Section 4 requires publication by three modes : (i) publication in Gazette; (ii) publication in two newspapers circulating in the relevant locality, and, (iii) public notice caused to be given at a convenient place in the relevant locality. From the parenthetical clause, it is manifest that the last of the dates of such publication and the giving of such public notice will be the date of the publication of the notification. So, the date of publication would be the one which comes last in the chronology of publication. The law does was not require that last date of publication should be clearly stipulated in the notifications being published to enable the person having interests in the land to file objections under Section 5-A of the Act. It is left to such person to find out as to which is the last publication of the publications. Moreover, it is wholly impracticable to effectuate the argument made by the Counsel for the petitioners. Publications in the Gazette, in the newspapers and by way of public notice are to be made consecutively and not at one and the same lime and if that is so, last of the dates of such publication could not be visualised. It is difficult at the stages when the first two publications arc made to foresee the date of the last publication and, therefore, last of the dates of such publications cannot be disclosed in the proceeding publications, required to be made under Sub-section (1) of Section 4. There being no legal omission on the part of the respondents, notification issued under Section 4 cannot be said to be invalid on this score. 10. The next question is whether (he substance of declaration as published in the locality suffers from any legal infirmity. Annexure 11 to the writ petition is a copy of the substance of declaration, which was published in the locality. Such public notice clearly refers to tire plots which are being acquired for the purpose of Noida and that also states that notification dated 14.12.1989 under Section 6 of the Act had been issued. It is note worthy that sub-section (2) of Section 6 requires that very declaration shall be published in the official Gazette and in the two daily newspapers circulating in the locality in which the land is situate and it further request that the Collector shall cause public notice to the substance of such declaration to be given at convenient places in the said locality. The delineated portion clearly indicates that public notice is to be given in the relevant locality only of the substance of the. The delineated portion clearly indicates that public notice is to be given in the relevant locality only of the substance of the. declaration and that the declaration as a whole is not to be reproduced in the public notice, as it is required to be published in the official gazette and in the two newspapers. The word 'substance' occurring in sub-section (2) of Section 6 clearly indicates that public notice need not contain the whole declaration but only a substance thereof. It cannot be said that the public notice (Annexure 11 to the writ petition) is contrary to the requirements and spirit of sub-section (2) of Section 6 of the Act. When only substance of the declaration is required to be given in the public notice, it cannot be argued that a public notice containing substance should state entire ingredients of the legal provision, as contained in sub-section (1) of Section 6. We, therefore, do not see any legal infirmity in the public notice (Annexure 11 to the writ petition). 11. The next submission is that direction as given under Section 7 of the Act to take order for acquisition of land is vitiated, inasmuch as that preceded the publication of declaration as contemplated by Section 6. Admittedly, declaration was published on 5.2.1990 in the newspapers. The declaration was published in the extraordinary Gazette on 15.12.1989 (see Annexure 10' to the writ petition). It appears to be a composite notification, inasmuch as it made a declaration under Section 6, gives a direction to the Collector Ghaziabad to take orders for the acquisition of the land and to take possession on the expiry of 15 days from the date of service of the notice as envisaged by Sub-section (1) of Section 9. Learned counsel for the petitioner does not challenge that a composite notification is bad in law, but what he submits is that direction under Section 7 could not be given before the proceedings under Section 6 are completed and that declaration having been and under Section 6 on 5.2.1990, direction to the Collector could not have been given on 15.12.1989. Thus submission has :o be rejected, inasmuch as the notification (Annexure 10' to the writ petition) does not direct the Collector to take orders for acquisition of the land from the State Government before publication of declaration within the meaning of sub-section (2) of Section 6 of the Act. Thus submission has :o be rejected, inasmuch as the notification (Annexure 10' to the writ petition) does not direct the Collector to take orders for acquisition of the land from the State Government before publication of declaration within the meaning of sub-section (2) of Section 6 of the Act. Sri N. Lal strenuously emphasising on the words 'so declared' occurring in Section 7 urged that these words clearly indicate that direction under Section 7 can be issued only after the declaration having been made under Section 6. There is no dispute about this legal proposition. Then the question is whether direction was given in this case before the declaration was made. We see no substance in the contention of Shri N. Lal. The composite notification does not lead to the conclusion that direction under Section 7 preceded the publication of the declaration under Section 6. There is no direction to the Collector that he should obtain orders for the acquisition of the land from the State Government, without awaiting the publication of the declaration within the meaning of sub-section (2) of Section 6. The composite notification simply directs the Collector, Ghaziabad, to take steps for acquiring the land. It does not mean that he was directed to take orders for the acquisition of the land in violation of the law, that is before the publication of declaration under sub-section (2) of Section 6. Normal presumption is that a notification directs an authority to proceed in accordance with the law unless otherwise established. Contrary having to been shown, it is just and proper to hold that there was no direction to the Collector to take orders for acquisition of the land prior to publication of the declaration. 12. Lastly, the submission of Sri N. Lal is that the notices issued under Section 9, are invalid. The submission to two fold : (i) that is notices were served on the petitioners before the publication of declaration; and (ii) that 15 days' time as required to be given by sub-section (2) of Section 9 was cut down, inasmuch as the notices of the type of Annexure 14 to the writ petition, asking the petitioners to appear on 15.2.1990, were served on the petitioners on 3rd, 4th and 5th February, 1990. In paragraphs 28 and 29 of the counter-affidavit, the respondents clearly stated that there was a mistake in having fixed 15.2.1990 in the notices and that the mistake was rectified by giving fresh notices clearly providing more than 15 days time. This fact is admitted in the rejoinder-affidavit. That being so, the notices given in sub-section (1) of Section 9 cannot be impugned on this account. Then question is whether the notices were caused to be served by the respondents before the publication of declaration under Section 6, which was, admittedly, made on 5.2.1990. Assuming but not admitting, that such notices were bad in law, the question arises whether the proceedings having been completed under Sections 4 and 6 can be invalidation of this ground. Upon perusal of the Scheme of the Act, it appears that whenever the State Government feel that a given land is needed for a public purpose then a notification to that effect shall be published in the manner prescribed under Section 4. Thereafter, if the hearing under Section 5-A is not dispensed with then the objections of the persons interested in the land notified under Section 4, would be invited and they will be disposed of after hearing. Thereafter the Collector, an agent of the State Government, shall make a report in respect of the land to the State Government, which if upon considering the same is satisfied that the land is needed for public purpose, shall make a declaration under Section 6, which under sub-section (3) will be a conclusive evidence that the land is already needed for the public purpose. After the declaration, the Collector shall be directed to take order for the acquisition of the land and then the Collector shall cause public notices stating that the Government intends to take possession of the land and that claims to compensation for all interests in such land may be made to him. So the purpose behind giving the notices is to determine and finalise the claims of compensation of the persons having interests in such land. The notice is therefore confined to the determination of compensation and that could not invalidate the notifications issued under Sections 4 and 6 in any way (see Mehtar and another v. The Collector Durg and others, AIR 1975 MP 46 ). The notice is therefore confined to the determination of compensation and that could not invalidate the notifications issued under Sections 4 and 6 in any way (see Mehtar and another v. The Collector Durg and others, AIR 1975 MP 46 ). If there is any illegality in the notice issued under sub-section (1) of Section 9 and if the aggrieved persons feels that he was deprived of the opportunity of filing objections before the Collector for that reason, then he may challenge the same under Section 18 by filing reference before the competent authority. (See Abdulla Kadar Hussainbhai Lakdawala v. The Land Acquisition Officer Thana, AIR 1988 Bombay 18. 13. For the reasons none of the submissions made by Sri N. Lal succeeds and all of them are rejected. In the result, all the writ petitions fails and the dismissed.