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2000 DIGILAW 455 (PAT)

Atma Ram Yadav v. State Of Bihar

2000-03-24

ASOK KUMAR GANGULY, B.P.SINGH

body2000
Judgment B.P.Singh, J. 1. In this appeal the appellants have impugned the judgment and order of a learned Judge of this Court dated 24th June, 1999, in C.W.J.C. No. 6545 of 1998 [ 1999(2) PLJR 811 ] dismissing the writ petition filed by them. In the writ petition the appellants had challenged the acquisition proceeding which had been initiated pursuant to a scheme for widening of the Chiraiyatand Over-bridge and approach roads at Patna. The appellants challenged virtually all the notifications, orders etc. issued in connection with the said acquisition proceeding, including the notifications issued under Sections 4 and 6 of the Land Acquisition Act and the award made under Section 11(2) of the Act. The learned Judge finding no substance in the grounds urged by the appellants dismissed the writ petition. 2. It is not in dispute that a proceeding was initiated under the Land Acquisition Act for the acquisition of lands which were required for execution of the scheme to widen Chiraiyatand Overbridge and approach roads at Patna. Counsel for the appellants did not contend that the acquisition of the lands was not for a public purpose. Indeed, the widening of the Chiraiyatand Overbridge is a compelling necessity since the said Overbridge connects the city of Patna with that part of the city which was developed to the south of the railway line, and which is connected by the aforesaid Chiraiyatand Overbridge. The existing Overbridge has a width of 9 meters and the proposal is to widen it further by 9.15 meters, so that instead of the existing two lanes, it may have four lanes. The approach roads to the said Overbridge have to be suitably widened with a view to take the load of increased traffic, and also to maintain the road alignment with the widened bridge proposed to be constructed. 3. The approach roads to the said Overbridge have to be suitably widened with a view to take the load of increased traffic, and also to maintain the road alignment with the widened bridge proposed to be constructed. 3. Before the learned Judge three grounds were urged by the appellants, namely : "(i) The acquisition proceeding has been initiated with mala fide motive, there being oblique motive to displace residentials and shop keepers of Station Road and Karbighaiya Road : (ii) The order passed by Hon ble Minister l/C. on 26th December, 1996 having merged with order dated 23rd July 98, the authorities had no jurisdiction to proceed in the matter further without adhering to the order passed under section 5 A(2) of the Act; and (iii) The award having not prepared and signed within the prescribed period under Section 11A of the Act, the acquisition proceeding stood lapsed." However, before us Sri Tara Kant Jha, Senior Advocate, did not urge the first two submissions and urged only the following three grounds of challenge. 4 It was submitted by him firstly that the declaration issued under Section 6 of the Act was made after expiry of one year from the date of publication of the notification under section 4(1) of the Act, and was therefore barred by time. Secondly it was contended that the award made by the Collector was hit by Section 11-A of the Act, since the award was not made within a period of two years from the date of publication of the declaration under section 6 of the Act. Thus the entire acquisition proceeding has lapsed. Lastly, it was submitted that the scheme was not merely for widening of the roads but also for extension of the Chiraiyatand Overbridge. Since the widening of the Overbridge involved railway lands, and since no final agreement has been reached between the State of Bihar and the Railways, the extent of the land required for public purpose could not be ascertained in the absence of a finalised scheme. Therefore, in his submission, the acquisition of the lands was premature, and in the absence of a finalised scheme, it would not be possible to ascertain the extent of requirement of the lands. 5. Before dealing with the submissions urged on behalf of the appellants, it is necessary to notice the broad facts. Therefore, in his submission, the acquisition of the lands was premature, and in the absence of a finalised scheme, it would not be possible to ascertain the extent of requirement of the lands. 5. Before dealing with the submissions urged on behalf of the appellants, it is necessary to notice the broad facts. A notification under Section 4(1) of the Act was published in the District Gazette on 16.10.1994. The said notification was also published in two newspapers on 28.11.1994. Service of the notice was also effected on land holders whose Sands were proposed to be acquired by 10.4.1995. Several land holders filed their objections under section 5-A of the Act in the year 1994-95. By order dated 5.1.1996 all objections filed before the Collector were rejected, except representations made on behalf of some temples and mosques. On 2nd March, 1996 the declaration under Section 6 was published in the District Gazette and the said declaration was afso published in two daily newspapers on 21.3.1996. Service of the declaration on individual land holders was effected by 31.7.96. The Collector made his award under Section 11 of the Act on 30th July, 1998. 6. Section 6 of the Act requires that 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, a declaration shall be made to that effect under the signature of Secretary to such Government or such officer duly authorised to certify its orders proviso (ii), however, mandates that no declaration in respect of any particular land covered by notification under Section 4, sub-section (1) 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 notification. So far as the publication of the declaration under section 6 of the Act is concerned, there is no dispute that the same was published in the District Gazette on 2.3.1996. The question is whether it was published within the period prescribed by proviso (ii) to Section 6 of the Act i.e. within a period of one year from the date of publication of the notification under Section 4(1) of the Act. 7. The question is whether it was published within the period prescribed by proviso (ii) to Section 6 of the Act i.e. within a period of one year from the date of publication of the notification under Section 4(1) of the Act. 7. Section 4(1) of the Act provides that the notification under the section 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. It further provides 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. From a plain reading of section 4(1) of the Act it is clear that the notification is required to be published in the Official Gazette, in two daily newspapers, and in additionthe Collector is required to cause public notice of the substance of such notification to be given at convenient places in the said locality. The first two relate to the publication of notification and the third relates to giving of public notice of the substance of such notification. In terms, the section provides that the last of the dates of such publication and the giving of such public notice, shall be reckoned as the date of the publication of the notification. In the instant case, there is no dispute that the notification under Section 4(1) of the Act was published in the Official Gazette on 16.10.1994. It was also published in the two daily newspapers on 28.11.1994. A question then arises as to when public notice of the substance of such notification was given at convenient places in the said locality. At this stage I may notice that under the Land Acquisition (Bihar Amendment) Act, 1960, notice is also required to be published at the office of the Collector, Subdivisional Officer and the officers of the smallest revenue administrative unit and Gram Panchayat, and at some conspicuous place in the village in which the land is situated. It further required the Collector to cause copies of the notification to be served on ail persons known or believed to be interested in the land. It further required the Collector to cause copies of the notification to be served on ail persons known or believed to be interested in the land. It cannot be disputed that the State amendment to the Land Acquisition Act by Amendment Act of 1960 shall not prevail over the amended section 4(1) of the Act, which was amended by Parliament by Act 68 of 1984. In case of inconsistency between the State and the Central Act the Central Act must prevail. However, by way of an abundant caution it appears that the Collector caused copies of the notification to be served on all persons known or believed to be interested in the land. That, however, can be of no avail to the State because such notice is not envisaged under Section 4(1) as amended by Act 68 of 1984. In determining the date of publication under Section 4(1) of the Act, the dates of service of notice on land holders have to be kept out of consideration. What can be taken into consideration is the date on which such public notice of the substance of the notification was given at convenient places in the locality. 8. In the writ petition the appellants have raised a bald plea that the notification under Section 4 of the Act having been published in the newspaper on 28.11.94, the declaration under section 6 having been published on 2.3.96 was much beyond the statutory period of one year, and hence the said declaration was barred by law. No plea was raised that the declaration under section 6 was published beyond the period of one year calculated from the date on which the public notice of the substance of such notification was given a! convenient places in the iocality. In paragraph no. 5 of the counter-affidavit the State has replied by saying that declaration was published in the Gazette on 2.3.1996 and the last date of service of notice to concerned persons was 31.7.1996. 9. As I have observed earlier, the date on which notice was individually served upon the land holders is not relevant for determining the last of the dates of publication and the giving of public notice under section 4(1) of the Act. 9. As I have observed earlier, the date on which notice was individually served upon the land holders is not relevant for determining the last of the dates of publication and the giving of public notice under section 4(1) of the Act. It has, therefore, to be ascertained as to the date on which the Collector caused public notice of the substance of such notification to be given at convenient places in the said locality. 10. This submission had not been urged before the learned Judge. We, therefore, directed the State to produce the original records before us and the Additional Advocate General No. 3 produced the records as directed. It was shown to us that notification issued under section 4(1) of the Act was displayed at conspicuous places in the locality on 10th April, 1995. It also appears from the service report that a copy of the said notification was served upon various authorities of the State Government, such as District Magistrate, Additional District Magistrate, Subdivisional Officer, Circle Officer and the Block Development Officer, Patna. This was presumably done with a view to satisfy the requirements of section 4(1), as amended by Bihar Act 11 of 1960, but the same service report discloses that a copy of the notice was pasted at a place on the northern extremity of the Chirayatand bridge and at another place to the south of Chiraiyatand bridge. In view of the service report placed before the Court, it must be held that public notice of such notification was given at convenient places in the locality on 10th April, 1995. We may notice that the document produced before us is not something which has been produced for the first time before this Court. A photo copy of the same document has been annexed as Annexure-A to the counter-affidavit filed on behalf of the State in opposition to the writ petition. The genuineness of the document, therefore, is not in doubt. Once it is held that public notice of the notification under Section 4(1) of the Act was given at convenient places in the locality on 10.4.95, it must follow that the declaration made under section 6 of the Act on 2.3.96 was well within the period of one year prescribed under the Act. Once it is held that public notice of the notification under Section 4(1) of the Act was given at convenient places in the locality on 10.4.95, it must follow that the declaration made under section 6 of the Act on 2.3.96 was well within the period of one year prescribed under the Act. It cannot, therefore, be held that declaration under section 6 was made after the expiry of one year from the date of publication of the notification under section 4(1) of the Act so as to be barred by proviso (ii) to section 6 of the Act. 11. The next question is as to whether the award made under section 11 of the Act is hit by section 11-A of the Act on the ground that it was not made within a period of two years from the date of publication of the declaration under Section 6 of the Act. 12. The declaration under section 6 of the Act is also required to 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 is also required to 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, is referred to as the date of the publication of the declaration. It has, therefore, to be seen as to what was the last date on which the declaration was published in the manner prescribed by sub-section (2) of Section 6 of the Act, and the date on which public notice of the declaration was given at convenient places in the locality. Here again the appellants have made a bald averment in paragraph no. 48 of the writ petition that the declaration under section 6 of the Act was published on 2nd March, 1996 and the impugned award prepared on 30.7.1998 and hence the statutory period prescribed in section 11-A of the Act having already expired, the entire proceedings for the acquisition of the lands in question had lapsed. In reply to the said averment in the writ petition, the State averred in paragraph no. In reply to the said averment in the writ petition, the State averred in paragraph no. 10 of its counter-affidavit that the declaration under section 6 was published in the Gazette on 2nd March 1996, but the last date of receipt of public notice of declaration under section 6 was 31st July, 1996. it was explained that the declaration under section 6 of the Act is published in three ways; it is published in the Gazette, secondly in two newspapers, and thirdly by way of public notice as per the provision laid down under section 6(2) of the Act and instruction issued by the Revenue and Land Reforms Department, Bihar, Patna. The last date of publication by any of the three modes will be treated as date of publication, which in the instant case was 31.7.1996 and, accordingly, the last date for declaration of award was 30.7.1998 i.e., the date on which the award had been declared. 13. It appears that before the learned Judge hearing the writ petition, it was argued on behalf of the State that individual land holders were also served copies of the declaration under Section 6 of the Act and the service of individual land holders was completed by 31.7.1996. As I have observed earlier, the date on which individual land holders were served with notices is not at all relevant for determining the date of publication of the declaration under section 6 of the Act. The section provides for two modes of publication and one mode of giving public notice of such declaration at convenient places in the locality. From the records placed before us it appears that the notification under Section 6 of the Act was published in the Gazette on 2.3.1996. A copy of the declaration was served upon various authorities and also at conspicuous places in Mohalla Moharampur. The public notice of the declaration was given at a conspicuous place in the locality on 30th July, 1996. It has therefore, to be seen as to whether the award was made within two years from the date of publication of the declaration under Section 6 of the Act. The date of publication of declaration must be taken to be 30th July, 1996 on which date the public notice of the declaration was given at convenient places in the locality. 14. The date of publication of declaration must be taken to be 30th July, 1996 on which date the public notice of the declaration was given at convenient places in the locality. 14. The period of two years must be reckoned as two calendar years consisting of 365 days each i.e. 730 days. In computing the period of two years either the date on which public notice of declaration under Section 6 was given or the date on which the award was made has to be excluded. Since public notice of the declaration was given on 30th July, 1996, and the award was made on 30th July, 1998, it has to be seen whether the award was made within two years. Excluding 30th July, 1996, there were 154 days in the year 1996, 365 days in the year 1997 and 201 days in the year 1998 (including the date of making of award). Thus, the award was made within 730 days of the date of publication of the declaration under Section 6 of the Act, which means that it was made on the last date on which it could have been made. The submission of the appellants based on Section 11 -A of the Act, therefore, must also be rejected. 15. It was then submitted that though the authorities proceeded under the provisions of the Land Acquisition Act to acquire lands for the execution of the scheme, matters have not been finalised between the Railways and the State Government. In the absence of a finalised scheme, it would not be possible to ascertain the extent of land required for the execution of the scheme. The submission has no force. It is true that the Government of Bihar has to finalise an arrangement with the Railways since the Chiraiyatand bridge is constructed over the Railway line and is in the nature of an overbridge. That is not to say that the scheme has not been finalised. In fact, the detailed drawings etc. were placed before the Court which would show the extent of land required for widening of the roads and the construction of the bridge. The appellants herein are not in any manner concerned with the acquisition of lands belonging to Railways. So far as the requirement of their land is concerned, that is quite obvious. were placed before the Court which would show the extent of land required for widening of the roads and the construction of the bridge. The appellants herein are not in any manner concerned with the acquisition of lands belonging to Railways. So far as the requirement of their land is concerned, that is quite obvious. Counsel for the State submitted that the Railway also have no objection to the widening of the overbridge though the details are being discussed between the State of Bihar and the Railways. That, however, does not concern the appellants. So far as the lands notified for the acquisition are concerned, they are definitely required for the execution of the scheme having regard to the scheme drawn up and the drawings which were produced before the Court. Wideninq of the roads is an intrinsic part of the scheme and, therefore, the land holders cannot validly object to the acquisition of their lands which are required for the execution of the project. 16. In the facts and circumstances, the third ground urged in support of the appeal must also be rejected. 17. Sri Jaiswal, advocate, assisting Sri. T. K. Jha submitted that under section 6(1) of the Land Acquisition Act, as amended by Bihar Act 11 of 1961, the declaration under section 6 has to be made by the appropriate Government or the Collector as the case may be, but in the instant case the same has been made by the Additional Collector, Patna. The submission is not factually correct. The declaration under section 6 published in the Official Gazette on March 2, 1996 has been issued under orders of the Governor of Bihar and signed and authenticated by a Deputy Secretary to the Government. The declaration under section 6 has therefore, been made by the Government of Bihar. After the declaration under section 6, the plots under various blocks have been shown separately and that has been signed by the Land Acquisition Officer, Patna and the Additional Collector, Patna. That, however, does not justify the submission that the declaration under section 6 has been issued by the Additional Collector and not by the State Government. I, therefore, find no substance in the submission urged by Sri Jaiswal. 18. That, however, does not justify the submission that the declaration under section 6 has been issued by the Additional Collector and not by the State Government. I, therefore, find no substance in the submission urged by Sri Jaiswal. 18. I may observe that Sri T. K. Jha at one stage wanted to advance an argument that the notification having been published in the District Gazette, they were not published in the manner required by sections 4 and 6 of the Act which required the publication of the notifications in the Official Gazette. However, when his notice was drawn to a Full Bench decision of this Court in 1992(1) PLJR 264 holding that the District Gazette is also an official Gazette in the context of Land Acquisition Act, he did not press the submission, and in fact withdrew the same, since it was not brought to his knowledge that the decision reported in 1991(1) PLJR 380, on which he had placed reliance, stood overruled by a Full Bench decision. 19. in the result, finding no merit in any of the submissions urged on behalf of the appellants, this appeal is dismissed. There will be no order as to costs. A.K.Ganguly, J. 20 I agree.