Research › Browse › Judgment

Himachal Pradesh High Court · body

1998 DIGILAW 133 (HP)

KANWAR MADAN SINGH v. STATE OF H. P.

1998-07-23

KAMLESH SHARMA, LOKESHWAR SINGH PANTA

body1998
JUDGMENT Kamlesh Sharma, J. : The petitioners in this writ petition have assailed the acquisition of their lands and have prayed for quashing of the Notification issued under Sections 4, 6 and 7 of the Land Acquisition Act (hereinafter called the Act) on various ground, inter alia, that Notification under subsection (1) of Sec. 6 of the Act was not published within the period of limitation of one year as provided under the second proviso thereof and also that after the acquisition of the land, the petitioners and to her land owners would be rendered landless and further than 50 Bighas of land belonging to the Government is lying vacant across the National Highway by pass where already a housing colony has been constructed by the H.P. Housing Board where rest of the housing colony can be constructed. 2. The admitted facts on record are that the petitioners are permanent residents of village Sangti, Pargana Chabrogti, Tehsil and District Shimla, where they own 55 Bighas 9 Biswas of land (hereinafter called the land in dispute) alongwith other co-owners/co sharers. By Notification dated 30.7.1993 issued under Section 4 of the Act, the land in dispute was notified to be needed for the public purpose of construction of Housing Board Colony by the H.P.Housing Board, which is owned and controlled by the State Government. This Notification (Anncxure P-A) was published in the Indian Express on 11.11.1993. There is no dispute that the publication of this Notification was made in the Official Gazette, two daily Newspapers circulated in the locality, of which one was in a regional language. Public notice of the substance of such Notification, at convenient places in the locality, was also given. The parties have agreed that the last date of such publication and the giving of such public notice may be treated as the Publication in the Indian Express on 11.11.1993, for the purpose of determining whether the Notification under subsection (1) of Section 6 of the Act was published within the period of limitation of one year. 3. The petitioners have alleged that the Notification under subsection (1) of Section 6 and Section 7 was issued on 8.11.1994 and was published in the Indian Express on 5.12.1994, beyond the period of limitation of one year from 11.11.1993 when Notification under Section 4 of the Act was published. in the Indian Express. 3. The petitioners have alleged that the Notification under subsection (1) of Section 6 and Section 7 was issued on 8.11.1994 and was published in the Indian Express on 5.12.1994, beyond the period of limitation of one year from 11.11.1993 when Notification under Section 4 of the Act was published. in the Indian Express. The respondents in their reply dated 25.7.1995, filed on the affidavit of Sh.H.S.Thakur, the then Land Acquisition Collector (S.D.O. (C) (Rural), Shimla, have stated in Para 8 that,.... notification under Sections 6 and 7 of the Land Acquisition Act 1894 was issued vide No. Housing -5 (F)6-l/91 dated 8.11.1994 which was published in the daily news papers i.e. Indian Express arid Vir Pratap on 8.11.1994." In their rejoinder, the petitioners have reiterated that the Notification under Sections 6 and 7 of the Act was published on 5.12.1994 in the Indian Express and not on 8.11.1994 as stated by the respondents in their reply affidavit. When this matter came up for admission before a Division Bench of this Court on 9.4.1996, on perusal of the record,, and, after hearing the learned counsel for the parties, it was directed that the report sent by the Sub Divisional Magistrate - cum-Collector dated 24th April, 1994, which is available in file (Case No.) 2/93 and the spot inspection report made by the said officer in the month of March, 1996 shall be filed before this Court with an affidavit. The main file of the State Government in which the report of the Collector under Section 5-A of the Land Acquisition Act was considered alongwith the note sheets was also ordered to be produced on the next date. In pursuance of this order, Sh. H.S. Thakur, the then Land Acquisition Collector (S.D.M. (Rural), Shimla, filed another affidavit on 20.5.1996 stating that after holding inquiry under Section 5-A of the Act, the Land Acquisition Collector sent his report to the Government on 25.4.1994 in which he had not recommended the acquisition of the land is dispute in view of the objections of the petitioners and other land holders. It is also stated that the Notification under Sections 6 and 7 of the Act was issued on 8.11.1994. It is also stated that the Notification under Sections 6 and 7 of the Act was issued on 8.11.1994. In another affidavit dated 1.6.1996, he repeated the same averments in respect of issuance of Notification under Sections 6 and 7 of the Act and nothing has been stated about the publication thereof,-as required under subsection (I) of Section 6 of the Act.. It is also stated that on the directions of the Additional District Magistrate, Shimla, spot inspection was conducted by the Tehsildar (Rural), Shimla, Assistant Engineer, HP PWD (B &. R), Kasumpti Sub-division, and Agriculture Development Officer, Mashobra, on 29.3.1996 who gave their report on 2.4.1996, a copy whereof has been placed on record. It was pointed out in the report that out of 22 share holders of the land in dispute, none will be rendered landless after the proposed acquisition of their lands, though they would have meager land holdings in t he revenue estate Sangti. 4. Thereafter, on the application of the Housing Board, under Order 1 Rule 10 C.P.C., it was impleaded as party respondent by order dated 1.4.1998 and in its reply to the writ petition, filed on the affidavit of Sh.R.K. Makkar, Superintending Engineer of H.P Housing Board, harpring the tune of respondents No. 1 and 2. it is stated in Para 8 that Notification under Sections 6 and 7 of the Act was issued vide No. Housing -5(F) 6-1/91 dated 8.11.1994 which was published in the daily Newspapers, that is, Indian Express and Vir Pratap for 8.11.1994. 5. After hearing the learned counsel for the parties and going through the record, we are of the view that this writ petition deserves to be allowed on the short ground that Notification under subsection (1) of Section 6 of the Act I was not published within the period of limitation of one year from the admitted date of publication of Notification under Section 4 of the Act, that is, 11.11.1993. We may point out that in view of the first reply - affidavit dated 25.7.1995. We may point out that in view of the first reply - affidavit dated 25.7.1995. filed on behalf of the respondents, the Notification under Sections 6 and 7 of the Act was issued vide No. Housing -5(F) 6-1/91 dated 8.11.94 which was published in daily news papers i.e. Indian Express and Vir Pratap on 8.11.1994" which, stand though was not insisted upon in the later affidavits dated 20.5.1996 and 1.6.1996 filed by the same officer, this Court offered a number of opportunities to the respondents to produce the record in respect of the publication of the Notification under subsection (1) of Section 6 of the Act either in the Gazette or in the Newspapers but they failed. Therefore, this Court proceeded to hear this matter without record. From the non-production of record, we are constrained to draw an adverse inference against the respondents that they do not possess any such record of publication of Notification under subsection (1) of Section 6 of the Act in the Newspapers on 8.11.1994 or in the Gazette of any other date, within the period of limitation of one year. In view of the facts and circumstances on record, we have to accept the allegations of the petitioners that Notification under subsection (1) of Sec. 6 was published in the Indian Express on 5.12.1994, beyond the period of limitation of one year. 6. The learned Asstt. Advocate General appearing for respondents No. 1 and 2, & Sh. Deepak Gupta, Advocate, appearing for respondent No.3, have relied upon the judgment of the Supreme Court in State of Haryana & Anr. v. Raghubir Dayal, (1995) 1 SCC 133, to contend that Section 6 of the Act has been declared to be directly, as such, any infirmity found in the publication of the Notification issued under Section 6 would not render the acquisition bad. We do not find any force in this submission. In fact, the issue for determination before the learned Judges of the Supreme Court in that case was whether in view of the language of subsection (2) of Section 6, which is pan materia with sub-section (1) of Section 4, the publication of the substance of Section 6 declaration in the locality was mandatory and non-compliance thereof would render the entire acquisition illegal? It was held by their Lordships that keeping in view the purpose of publication of the substance of declaration made under subsection (1) of Sec. 6, its publication is not mandatory unless any grave prejudice to the claimants is shown to have been caused. Their Lordships were not dealing with the point of limitation for publishing notification under subsection (1) of Sec.6 of the Act as per the first proviso thereof As such, this judgment is of no assistance in the present case, as on facts, we find that in that case Notification under subsection (1) of Section 6 of the Act was published in the State Gazette on 1.8.1989J in Veer Arjun on 10.8.1989 and in Patriot on 8.8.1989 within the period of limitation, as Notification under Section 4 of the Act was published in the State Gazette on 25.10.1988 and in the local Newspapers Dainik Veer (Hindi) and Indian Express on 16.11.] 988 and the point was about publication of the substance of Notification under sec 6(1) in the locality.-. 7. The point for our decision in the caste in hand came up for consideration before the learned Judge of the Supreme Court in a recent case in Eugenio Misquita & Ors. v. State of. Goa & Ors. (1997) 8 S.C.C. 47. In that case the Notification under Section 4(1) of the Act was issued on 23.6.1992 and published in the English daily 0 Heraldo on 29.6.1992 and in the Marathi Daily Nav Prabha on 2.7.1992 and Public Notice in the locality was giver on S.7.1992 and, lastly, it was published in the official Gazette of the Goa Government on 6.8.1992. Declaration under Sec. 6(1) was made on 3. .1993 and it was published in the official Gazette on 5.8.1993 in Marathi daily Gomantak on 6.8.1993 and in the English daily Navhind Times on 7.8.1993 respectively. The public notice of the substance of the declaration under subsection (1) of Sec. 6 as provided under subsection (2) thereof, was given in the locality on 28.8.1993. In these circumstances, a challenge was laid to the validity of the declaration under subsection (1) of section 6 of the Act on the ground that the publication of the declaration was beyond one year, taking 28.8.1993 as the date of publication and, therefore, the acquisition proceedings had lapsed. In these circumstances, a challenge was laid to the validity of the declaration under subsection (1) of section 6 of the Act on the ground that the publication of the declaration was beyond one year, taking 28.8.1993 as the date of publication and, therefore, the acquisition proceedings had lapsed. After considering the provisions of Sections 4, 6 and 11-A of the Act, it was held in Para 9 as follows: ".....As seen from the above extracts of relevant provisions, while Section 4(1) commands publication of notification under that section, Section 6 speaks of the declaration being made to effect that any particular land is needed for public purpose or for a company. There are judicial decisions that have interpreted the word "made " to mean "published " for the reasons stated in those decisions. Therefore, strictly speaking, but for those judicial decisions the date of making of the declaration under Section 6(1) will be the relevant date for reckoning the period of limitation. However, in the interest of the general public, the courts have taken the view that the declaration made will stand accomplished when it is published. This publication has, therefore, nothing to do with the publication referred to in Section 6(2) of the Act which is for a different purpose, inter alia, for reckoning the limitation prescribed under Section 11-A of the Act. This construction is supported by the language employed in Section 6(2) of the. Act. In particular, the word "hereinafter" used in Section 6(2) will amply prove that the last of the series of the publication referred to under Section 6(2) is relevant for the purpose coming thereafter, namely, for making award under Section 11-A. The language employed in second proviso to Section 6(1) also supports this construction. ..." (Emphasis supplied). 8. After considering their earlier judgment in Krishi Utpadan Mandi Samitiv. Makrand Singh, (1995) 2 SCC 497, the learned Judges of the Supreme Court concluded that for the purpose of calculating the period of limitation prescribed under clause (ii) of the first proviso to Section 6(1), it is not the last of the publication in the series that should be taken into account, but the publication that was made in the first instance under Section 6. They have reproduced Paras 4 and 5 of their earlier judgment in Krishi Utpadan Mandi Samiti case (supra) with approval. They have reproduced Paras 4 and 5 of their earlier judgment in Krishi Utpadan Mandi Samiti case (supra) with approval. We would like to reproduce the following observations made in those Paras which are relevant for the purpose df deciding the point in issue arising in the case in hand : ".......If this consistent policy of (he Act is understood giving teeth to the operational efficacy to the scheme of the Act and public, purpose the Act seeks to serve, we are of the considered view that publication in the official Gazette already made under clause (i) of proviso to subsection (1) of Section 6 is complete as soon as the declaration under Section 6(1) was published in the Official Gazette. That will be the date for the purpose of computation of three years period from the last of the dates of the publication of the notification under section (1). The procedural ministerial acts prescribed under subsection (2) are only for the. purpose of the procedure to be followed hereinafter, in other words, the steps \ to be taken subsequent to the publication pf the declaration under Section 6(1) of the Act. We cannot agree with Shri Rana, the learned Senior counsel, that the date of making the declaration by the Secretary to the Government or the authorized officer is the date for computing the period of three years. Equally, we cannot agree with the learned counsel for the respondents, Sh. Upadhayay, that publication of the substance being the last date from which the period of three years needs to be computed. Acceptance of either contention would easily defeat the public policy under the Act by skillful manner of management with the lower .level officials. 9. , It may be pointed out that in the said judgment, the learned Judges of the Supreme Court were dealing with a case which arose before the coming into force of ActNo.68 of 1984 wherein the period of limitation was three years whereas it is one year under the. amended Act. 9. , It may be pointed out that in the said judgment, the learned Judges of the Supreme Court were dealing with a case which arose before the coming into force of ActNo.68 of 1984 wherein the period of limitation was three years whereas it is one year under the. amended Act. After considering judgments of other High Court, the learned Judges concluded, as already-seated above, that for the purpose of calculating the period of limitation prescribed under clause (ii) of the first proviso to Section 6(1), it is not the last of the publication in the series that should be taken into account, but the publication that was made in the first instance under Section. 6. 10. In view of the clear law laid down in the above judgment of the Supreme Court, we have no-hesitation to hold that Notification under Section 6(1) of the Act was published on 5.12.1994 in the Indian Express beyond the period of limitation of one year from 11.11.1993, when the Notification under Sec. 4 of the Act was published, which vitiates the acquisition proceedings in respect of the land in dispute. In view of this, we need out consider the other points raised by the petitioners. However, we may observe that if in future the State of Himachal Pradesh decides 10 acquire the land in dispute, they may consider the representations of the petitioners and other land holders that by the acquisition, t hey will be rendered practically landless. 11. In the result, the writ petition is allowed and the acquisition proceedings held for acquiring the land in dispute are quashed. However, there is no order as to costs.