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2002 DIGILAW 155 (KAR)

P. VENKATALAKSHMAMMA v. SPECIAL LAND ACQUISITION OFFICER, BANGALORE

2002-02-26

T.S.THAKUR

body2002
TIRATH S. THAKUR, J. ( 1 ) COMMON questions of law arise for consideration in all these petitions, which shall stand disposed off by this common order. ( 2 ) IN terms of a preliminary notification dated 16th of December, 1999 published in the Government Gazette on 20th of January, 2000 and issued under Section 4 of the Land Acquisition Act an area measuring 37 acres situate in Sy. Nos. 19/2, 20, 37/1 and 37/2 of village Kengeri was notified for acquisition for the construction of a treatment plant by the Bangalore Water Supply and Sewerage Board. A declaration under section 6 of the Act followed on 13th of February, 2001, which was published in the Government Gazette on 8th of March, 2001. Aggrieved by the said declaration, the petitioners have filed the present writ petitions challenging the validity of the same. ( 3 ) I have heard Counsels for the parties at length. ( 4 ) THE challenge to the impugned acquisition proceedings is threefold. Firstly, it is argued that the declaration under Section 6 of the land Acquisition Act was beyond the period of one year prescribed for the same. Secondly, it is contended that the names of some of the petitioners were not notified in the preliminary notification, thereby denying to them an opportunity to file their objections. Thirdly, it is urged that no technical study or feasibility of report was prepared by the Bangalore water Supply and Sewerage Board or any other authority for purposes of determining the suitability of the land for the proposed construction of the treatment plant, which according to the petitioners vitiates the pro- ceedings especially when alternate Government land was available in the vicinity of the land in question which was more suitable for the proposed treatment plant. ( 5 ) THE preliminary notification was admittedly issued on 16th of december, 1999 and gazetted in the Government Gazette on 20th of january, 2000. In the counter-affidavits filed on behalf of the respondents, it is submitted that the said notification was last published in the village Chawdi on 16th of February, 2000. The final declaration under section 6 was however made on 13th of February, 2001, that is much within the prescribed period of one year. In the counter-affidavits filed on behalf of the respondents, it is submitted that the said notification was last published in the village Chawdi on 16th of February, 2000. The final declaration under section 6 was however made on 13th of February, 2001, that is much within the prescribed period of one year. The said declaration was no doubt gazetted only on 8th of March, 2001 but the fact that the publication in the Government Gazette was delayed is wholly inconsequential. The question whether the period of one year for making of a declaration under Section 6 should be counted by reference to the date of the making of the declaration or publication is no longer res Integra. This Court has in K. R. Jawahar v State of Karnataka, held that it is the making of the declaration and not its publication, which is relevant for purposes of determining whether declaration has been made within the period pre- scribed for the same. The issue is now authoritatively determined by a recent decision of the Supreme Court in Sriniwas Ramnath Khatod v state of Maharashtra and Others. The Court has in the said case declared that publications under Section 6 (2) of the Land Acquisition Act are ministerial acts and procedural in nature. The relevant date for purposes of determining whether a declaration is within the time prescribed by Section 6 (2) is the date on which the declaration is made and not the date on which it is actually published. The following passage is appropriate in this connection:"the wordings of Sections 4, 6 and 11-A make it clear that the act made a distinction between a "declaration" and "publication". Under Section 4 the notification has to be published. Again under section 11-A the period of two years has to be computed from the date of "publication of the declaration". As against this, under section 6 a declaration has to be first made and that declaration is then to be published in the manner provided in Section 6 (2 ). Under the first proviso to Section 6 (i) a "declaration" cannot be made after the expiry of one year from the date of "publication" of the notification under Section 4". The word "published" in clauses (i) and (ii) of the first proviso to Section 6 (1) refers to the publication of notification under Section 4. Under the first proviso to Section 6 (i) a "declaration" cannot be made after the expiry of one year from the date of "publication" of the notification under Section 4". The word "published" in clauses (i) and (ii) of the first proviso to Section 6 (1) refers to the publication of notification under Section 4. Thus the proviso clearly talks of "publication" in respect of notification under section 4 and then provides a time for "making of declaration" under Section 6. 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 Section 6 (1) only provides a time-limit for a declaration and not for publication, it has been incorporated in sub-section (1) of Section 6. It is for this reason that the legislature has not put this proviso after sub-section (2) of Section 6. Thus it is clear that the "declaration must be made" within one year from the date of "last publication of the notification" under section 4. Thereafter the publication under Section 6 (2) may take place at a later date. The last date under Section 6 (2) is only for purposes of computing limitation under Section 11-A. Publications under Section 6 (2) are ministerial acts and procedural in nature". ( 6 ) IN that view, therefore, the argument that the declaration is beyond the period prescribed under Section 6 must fail and is accordingly rejected. ( 7 ) COMING then to the question whether some of the petitioners were duly notified and given an opportunity to file their objections. The grievance appears to be that although some of the petitioners had purchased small parcels of land from the original owners before the issue of the preliminary notification, yet no notices were issued to them nor were their names mentioned in the preliminary notification. This, according to the petitioners, vitiates the declaration not only because the statutory requirement of the notice has not been complied with but also because the owners have been deprived of an opportunity to file their objections, it is not however in dispute that the names of the petitioners, who have purchased the lands from the original owners are not shown in the record of rights maintained by the revenue authorities. Such being the position, the question is whether the Land Acquisition Officer was under any obligation to hold an enquiry as to who apart from those mentioned in the record of rights holds any interest in the lands notified for acquisition. That the Land Acquisition Officer is under no obligation to hold any such rowing enquiry into the ownership of persons other than those mentioned in the record of rights is also fairly well-settled by decision of the Supreme Court in West Bengal Housing Board and Others v Brijendra prasad Gupta and Others. The Court has in the said case while examining a similar argument observed. "the provisions of service of notice stood complied when notices were served on the persons recorded as owners in the record of rights. Record of rights is a statutory document maintained by the prescribed authority under Section 50 of the Act and it is a notice to the public at large as to who are the owners of the land in the records of the authorities. Under Section 3 of the West Bengal land Reforms Act, 1955, the Act overrides other laws if there is anything inconsistent with what is stated in the Act. Of course, the Collector could have asked for a report from the prescribed authority concerned if any application for mutation of the land was pending with him. But that would be expecting too much from the Collector. It is no part of the duty of the Collector to make a roving inquiry into ownership of the persons". ( 8 ) IN the instant case also it is not in dispute that the petitioners, who are making grievance against the absence of their names in the preliminary notification and specific notices to them do not figure in the record of rights. In the circumstances, the Land Acquisition Officer was under no obligation to conduct an enquiry into their possible interest in the land proposed for acquisition. The argument that the requirement of a notice to the owners was violated must, in the circumstances, fail and is accordingly rejected. ( 9 ) THAT brings me to the third and the only other contention raised by the learned Counsel. It is argued by Mr. The argument that the requirement of a notice to the owners was violated must, in the circumstances, fail and is accordingly rejected. ( 9 ) THAT brings me to the third and the only other contention raised by the learned Counsel. It is argued by Mr. Hinchigeri, Counsel appearing for the petitioner in W. P. No. 17547 of 2001 that the respondents had not undertaken any technical study of feasibility or prepared any feasibility report regarding the suitability of the land in question for utilisation in the manner proposed by them. He urged that there was a large extent of Government land available in the neighbourhood of the land in question, which was equally if not more suitable for being utilised for the construction of the proposed treatment plant. The respondents were, according to the learned Counsel, under an obligation to examine whether available Government land was sufficient to satisfy the requirement for which the impugned acquisition proceedings had been started. Their failure to apply their mind to that aspect and to take a conscious decision in the matter was, according to Mr. Hinchigeri, sufficient to vitiate the entire exercise. ( 10 ) ON behalf of the respondents, it was argued that the choice of the location of the proposed treatment plant was made on the basis of the technical study that was conducted and the feasibility report prepared by Tata Consultants engaged for the construction of the proposed treatment plant. It was only after detailed inspection and study in regard to the feasibility of setting up of the proposed plant, that the location of the same was approved and acquisition proceedings initiated. ( 11 ) THE argument that no previous technical study was conducted or feasibility report prepared must, in my opinion, fail for more than one reason. In the first place, the absence of any such study or report is disputed by the respondents, according to whom, the choice of the location of the proposed treatment plant was based on the opinion of the consultants engaged for that purpose. In the second place, the choice of the location of a particular project rests essentially with the concerned authorities. Judicial review of any decision taken by them is limited to examining whether the choice made is so irrational, perverse, or in outrageous defiance of logic that no reasonable person could countenance the same. In the second place, the choice of the location of a particular project rests essentially with the concerned authorities. Judicial review of any decision taken by them is limited to examining whether the choice made is so irrational, perverse, or in outrageous defiance of logic that no reasonable person could countenance the same. That however is not the position in the instant case. The only grievance about the location of the treatment plant is that it is abutting the National Highway. As to why can't a treatment plant be located near the Highway is not explained. So also the question whether or not any alternative Government land was available in the area which could be used for the proposed plant could and ought to have been raised by the petitioner at the appropriate stage in the course of the enquiry under Section 5-A of the Act. It is not the case of the petitioners that any such contention regarding availability of alternative Government land was put forward before the Collector at any stage in the course of the acquisition proceedings. Even the particulars of the alternative land have not been provided in the writ petition nor any material placed on record to show that any Government land in the neighbourhood of the land in question was in fact available and could therefore have been utilised for the proposed project. In the totality of these circumstances, therefore, the challenge to the acquisition proceedings must fail and so also these petitions. The petitions are accordingly dismissed, but in the circumstances without any orders. --- *** --- .