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2001 DIGILAW 659 (KER)

S. R. Khatod v. State of Maharashtra

2001-11-19

K.T.THOMAS, S.N.VARIAVA

body2001
Judgment :- 1. Leave granted 2. Heard parties. 3. This appeal is against a judgment dated 24th August, 2001 by which the writ petition filed by the appellant has been dismissed. 4. Briefly stated the facts are as follows: The 3rd respondent required certain lands in Aurangabad city. Thus land acquisition proceedings were started. A notification under S.4(1) of the Land Acquisition Act was published in the Government Gazette on 21st January, 1986. It had earlier been published in local newspapers on 3rd November, 1985 and 6th November, 1985. The local publication in the village took place on 30th January, 1986. The declaration under S.6 was issued on 29th January, 1987. This declaration was published in the local newspaper on 30th January, 1987. It was then published in the official gazette on 19th March, 1987 and in the concerned locality on 24th April, 1987. At this stage, it must be mentioned that notice under S.9 was received by the appellant on 13th March, 1989. On 14th March, 1989 the appellant filed his reply opposing the acquisition. Respondent No. 2 passed the final award on 21st April, 1989. 5. On 16th March, 1989 the appellant filed this petition in the High Court of Bombay at Aurangabad. On 20th March 1989, he obtained an ad interim stay preventing the government from taking possession. However, this Writ Petition ultimately came to be dismissed by the impugned order. 6. Before us only one point has been urged. It has been submitted that the declaration under S.6 of the Land Acquisition Act had not been published within a period of one year from the last date of publication of the notification under S.4. It is submitted that for this reason the acquisition proceedings are vitiated and should be set aside. 7. At this stage, it would be appropriate to set out S.4(1), 6 and 11-A of the Land Acquisition Act. These sections read as follows: "4. Publication of preliminary notification and powers of officers thereupon. It is submitted that for this reason the acquisition proceedings are vitiated and should be set aside. 7. At this stage, it would be appropriate to set out S.4(1), 6 and 11-A of the Land Acquisition Act. These sections read as follows: "4. Publication of preliminary notification and powers of officers thereupon. (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 convenience 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 notification). .............................................................. 6. Declaration that land is required for a public purpose. .............................................................. 6. Declaration that land is required for a 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 S.SA, sub-s. (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 officers 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 S.4, sub-s. (1), irrespective of whether one report or different reports has or have been made (wherever required) under S.5-A, sub-s. (2): Provided that no declaration in respect of any particular land covered by notification under S.4, sub-s. (1), (i) published after the commencement of the Land Acquisition (Amendment and Validation) Ordinance 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 revenues or some fund controlled or managed by a local authority. (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 date 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 a manner hereinafter appearing. 11A. Period within which an award shall be made (1) The Collector shall make an award under S.11 within a period of two years from the date of the publication of the declaration and if no award is made within that period, the entire proceedings for 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 from such commencement".(Emphasis supplied) Thus under S.4, a notification has to be published in the manner laid down therein. As against this, under S.6 a declaration has to be first made and that declaration is then to be published in the manner provided in S.6(2) of the Land Acquisition Act. Also the first proviso to S.6(1) lays down a time limit within which declaration has to be made. Very significantly it does not lay down a time limit within which publication of the declaration is to be made. Significantly, the first proviso does not lay down that publication cannot take place after the period prescribed therein. As the first proviso to S.6(1) only provides a time limit for a declaration and not for publication, it has been incorporated in sub-s. (1) of S.6. It is for this reason that the Legislature has not put this proviso after sub-s. (2) of S.6. 8. It is admitted that the last publication of the notification under S.4 was on 30th January, 1986. The declaration under S.6 was admittedly made on 29th January, 1987. If this date is taken into consideration then the declaration is within a period of one year from the last date of publication of the notification under S.4. However, it is submitted that under S.6(2), every declaration has to be published in the official gazette, in two daily newspapers circulating in the locality in which the land is situated and also at convenient places in the locality. It is submitted that a declaration under S.6 becomes effective only after it has been published. However, it is submitted that under S.6(2), every declaration has to be published in the official gazette, in two daily newspapers circulating in the locality in which the land is situated and also at convenient places in the locality. It is submitted that a declaration under S.6 becomes effective only after it has been published. It is submitted that, therefore, the date of declaration necessarily has to be the date when it has published in the official gazette and in the manner provided in S.6(2). It is submitted that as the declaration was published in the official gazette on 19th March, 1987 and in the village on 24th April, 1987 the declaration has been made after the expiry of one year from the last date of publication of the notification under S.4. 9. In support of this submission, reliance was placed upon the case of Eugenio Misquita v. State of Goa reported in ((1997) 8 SCC 47) = UT 1997 (8) SC 317). In this case, it was inter alia held as follows: 7. It is now well settled that the last of the dates in the series of the publications made under S.4(1) of the Act is the relevant date to reckon the starting point of limitation for the purpose of proviso to S.6(1)(ii). Now the question is which is the relevant date to reckon the last date for the purpose of clause (ii) of the first proviso to S.6(1). In other words, whether the modes of publication prescribed under S.6(2) obviously for the purpose of reckoning limitation under S.11-A of the Act have any part to play in the matter of computing the period prescribed under clause (ii) of the first proviso to S.6(1). 17. In the light of the law laid down by this Court, we have no hesitation to hold that the declaration published under S.6 of the Act was well within one year and the challenge to the same has been rightly rejected by the High Court. However, the view taken in the judgment of the High Court under appeal; that the relevant date for reckoning the period of limitation will be the date of making of the declaration under S.6, may not be correct. As held in Krishi Utpadan Mandi Samity case OT 1995 (1) SC 487) mere making of declaration is not enough. However, the view taken in the judgment of the High Court under appeal; that the relevant date for reckoning the period of limitation will be the date of making of the declaration under S.6, may not be correct. As held in Krishi Utpadan Mandi Samity case OT 1995 (1) SC 487) mere making of declaration is not enough. The making of declaration under S.6 is complete for the purpose of clauses (i) and (ii) of the first proviso to S.6(1) when it is published in the official gazette. Relying heavily on the above observations, it has been submitted that this Court has already held that the relevant date for reckoning of limitation is not the date of making of the declaration under S.6. It is submitted that this Court has held that a declaration under S.6 is complete only when it is published in the official gazette. 10. At first blush, it does appear that the above observations support the appellant. If that were so then this question would have had to be referred to a larger bench as such a finding would be against the clear wording of S.6 which admits of no ambiguity. 11. However, in our view, in Eugenio Misquita's case (supra), this Court is not holding that a declaration under S.6 is not within time provided, it is published at a later date. This question has been left open. This is clear from the observations in para 17 which read as follows: "However, the view taken in the judgment of the High Court under appeal that the relevant date for reckoning the period of limitation will bee the date of making of the declaration under S.6, may not be correct". The words "may not be correct" clearly show that the question is left open. 12. In our view, the wordings of S.4,6 & 11-A leave no room for doubt that the Land Acquisition Act made a distinction between a declaration" and "publication". To be noted that under S.4 the notification has to be published. Again under S.11-A, the period of two years has to be commuted from the date of "publication of the declaration". As distinct from this under the first proviso to S.6(1) a "declaration" cannot be made after the expiry of one year from the date of "publication of the notification under S.4". Again under S.11-A, the period of two years has to be commuted from the date of "publication of the declaration". As distinct from this under the first proviso to S.6(1) a "declaration" cannot be made after the expiry of one year from the date of "publication of the notification under S.4". The words "published" in clauses (i) and (ii) of the first proviso to S.6(1) refer to the publication of notification under S.4. A plain reading of S.6 shows that a distinction is made between a "declaration" and a "publication". Viewed from this angle, the wordings of the first proviso to S.6(1) become important. The proviso lays down that "no declaration (under S.6) shall be made under expiry of three years (under clause (i)) where the notification under S.4 is published before the commencement of the Land Acquisition Act, 1894 and after expiry of one year (under clause (ii)) where notification under S.4 was published after commencement of Land Acquisition Act, 1894. Thus the proviso clearly talks of "Publication" in respect of notification under S.4 and then provide a time for "making of declaration" under S.6. The Legislature is purposely omitting to use the word "publication of declaration" in the proviso to S.6. 13. In our view, it is clear that the "declaration must be made" within one year from the date of "last publication of the notification" under S.4. Thereafter the publication under S.6(2) may take place at a later date as it is merely a ministerial act. 14. Even if Eugenio Misquitta's case (supra) was laying down what is canvassed by counsel the appellant cannot succeed. To be noted that the paras 8 and 9 of that judgment read as follows: "8. According to the learned counsel, the limitation prescribed under clause (ii) of the first proviso to S.6(1) has to be considered with reference to the different dates/modes of publication prescribed under S.6(2) of the Act. In support of this submission, learned counsel refers to the judgments of this Court rendered on S.4(1) of the Act holding that the last of the date of such publication in the series is the relevant date for computing the period of limitation under clause (ii) of the first proviso to S.6(1). 9. Let us examine whether the learned counsel is right in his submission. 9. Let us examine whether the learned counsel is right in his submission. As seen from the above extracts of relevant provisions, while S.4(1) commands publication of notification under that section. S.6 speaks of the declaration being made to the 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 S.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 only when it is published. This publication has, therefore, nothing to do with the publication referred to in S.6(2) of the Act which is for a different purpose, inter alia, for reckoning the limitation prescribed under S.11A of the Act. This construction is supported by the language employed in S.6(2) of the Act. In particular, the word "hereinafter" used in S.6(2) will amply prove that the last of the series of the publication referred to under S.6(2) is relevant for the purposes coming thereafter, namely, for making award under S.11-A. The language employed in second proviso to S.6(1) also supports this construction. Therefore, the contention of learned counsel cannot be accepted. (emphasis supplied) 15. Thus a contention similar to the one made here had been rejected. Learned Judges then observed in para 16 as follows: "16 that for the purpose of calculating the limitation prescribed under clause (ii) of the first proviso to S.6(1), it is not the last of the publications in the series that should be taken into account, but the publication that was made in the first instance under the Section." 16. Thus a detailed reading of the authority makes it clear that the last date under S.6(2) is only for purposes of computing limitation under S.11-A. Publications under S.6(2) are ministerial acts and procedural in nature. In any case, in this case, the date of first publication of declaration is 30th January, 1987. This is also within one year of last date of notification under S.4. The High Court was thus right in holding that the proceedings were not vitiated. 17. We, therefore, see no substance in the appeal. In any case, in this case, the date of first publication of declaration is 30th January, 1987. This is also within one year of last date of notification under S.4. The High Court was thus right in holding that the proceedings were not vitiated. 17. We, therefore, see no substance in the appeal. We see no infirmity in the impugned judgment. Accordingly the appeal stands dismissed. There will be no order as to costs.