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2011 DIGILAW 24 (GUJ)

RAGHJIBHAI KANJIBHAI KHARSAN v. UNION OF INDIA

2011-01-17

RAVI R.TRIPATHI

body2011
JUDGMENT RAVI R. TRIPATHI, J. The petitioner is before this Court, praying that, "13(A) YOUR LORDSHIPS may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction quashing and setting aside notification dated 24-2-2010 published by respondent No.1 in the gazette qua the land in question of the petitioner (at Annexure-B hereto) and further be pleased to hold that in view of provisions of Sec. 20E(3) of the Act, the notification dated 10-2-2009 issued by respondent No.1 (at Annexure-A hereto) shall cease to have any effect over the land in question of the petitioner." 2. The facts giving rise to the present petition, in nutshell, are as under: 2.1. The railway authorities published a notification with regard to the land of the petitioner bearing Revenue Survey No. 448 paiki 1, at village Chadotal, Taluka Palanpur, District Banaskantha, on 10-2-2009 exercising the powers conferred under 20A(1) of the Railways Act, 1989 (hereinafter referred to as 'the Act' for short), declaring its intention to acquire the land of the petitioner. A copy of that notification is produced at Annexure 'A' to this petition. 2.2. The said notification (dated 10-2-2009) was published in various newspapers on 27-2-2009. 2.3. Thereafter, on 24-2-2010, a further notification is published in Gazette by respondent No. 1 under Sec. 20E(3) of the Act. A copy of this subsequent notification is produced at Annexure-'B' to this petition. 3. The question raised in this petition is as to whether the period contemplated under Sec. 20E(3) of the Act is to be reckoned from the date of publication of the notice in a gazette or from the date of publication of the notification in a newspaper. 3.1. For this purpose, it will be necessary to have both the provisions quoted for ready perusal. 3.2. Section 20A, which provides for 'power to acquire land, etc., reads as under : "(1) Where the Central Government is satisfied that for a public purpose any land is required for execution of a special railway project, it may, by notification, declare its intention to acquire such land. (2) Every notification under sub-sec. (1), shall give a brief description of the land and of the special railway project for which the land is intended to be acquired. (2) Every notification under sub-sec. (1), shall give a brief description of the land and of the special railway project for which the land is intended to be acquired. (3) The State Government or the Union Territory, as the case may be, shall for the purposes of this Section, provide the details of the land records to the competent authority, whenever required. (4) The competent authority shall cause the substance of the notification to be published in two local newspapers, one of which shall be in a vernacular language." 3.3. Similarly, Sec. 20E pertains to 'declaration of acquisition', wherein also, there are four sub-sections, which are reproduced for ready perusal. "(1) Where no objection under sub-sec. (1) of Sec. 20D has been made to the competent authority within the period specified therein or where the competent authority has disallowed the objections under sub-sec. (2) of that Section, the competent authority shall, as soon as may be, submit a report accordingly to the Central Government and on receipt of such report, the Central Government shall declare, by notification, that the land should be acquired for the purpose mentioned in sub-sec. (1) of Sec. 20A. (2) On the publication of the declaration under sub-sec. (1), the land shall vest absolutely in the Central Government free from all encumbrances. (3) Where in respect of any land, a notification has been published under sub-sec. (1) of Sec. 20A for its acquisition, but no declaration under sub-sec. (1) of this Section has been published within a period of one year from the date of publication of that notification, the said notification shall cease to have any effect. Provided that in computing the said period of one year, the period during which any action or proceedings to be taken in pursuance of the notification issued under sub-sec. (1) of Sec. 20A is stayed by an order of a Court shall be excluded. (4) A declaration made by the Central Government under sub-sec. (1) shall not be called in question in any Court or by any other authority. " 4. As noted hereinabove, the notification was published in a gazette on 10-2-2009 under sub-sec. (1) of Sec. 20A. But, this very notification was published in newspaper on 27-2-2009. Whereas, the notification under sub-sec. (3) of Sec. 20E was published on 24-2-2010. (1) shall not be called in question in any Court or by any other authority. " 4. As noted hereinabove, the notification was published in a gazette on 10-2-2009 under sub-sec. (1) of Sec. 20A. But, this very notification was published in newspaper on 27-2-2009. Whereas, the notification under sub-sec. (3) of Sec. 20E was published on 24-2-2010. The contention of the petitioner is that if one year is to be reckoned from the date of publication of the notification in a Gazette, one year has already expired on 9-2-2010, and therefore, this notification under Sec. 20E(3) is beyond the period prescribed, and therefore, notification dated 10-2-2009 shall cease to have any effect. 5. The learned Advocate for the petitioner submitted that the term 'notification' is defined under sub-sec. (26) of Sec. 2 of the Act. There, it is specifically mentioned that, 'notification means a notification published in the Official Gazette'. 5.1. The submission of the learned Advocate for the petitioner is right. If the notification under Sec. 20A(1) was not published in gazette, it would not have been a 'notification' in the eye of law. The question is about reckoning period during which the notification under Sec. 20E(3) of the Act can be published and for that, the Court is of the opinion that it is to be from the date of publication of the notification in a newspaper. 6. The learned Advocate for the petitioner drew the support from sub-sec. (2) of Sec. 6 of the Land Acquisition Act, 1894. Learned Advocate submitted that the land acquisition is prior in point of time and the provisions being para materia, the legislature has deliberately omitted sub-sec. (2) of Sec. 6 of the Land Acquisition Act while framing the Railways Act, 1989, and therefore, it should be held that one year is to be reckoned from the date of publication of notification in Government Gazette and not in the newspaper. 7. As against this, learned Advocate Mr. Ravi Karnavat for the Railways, submitted that what is important for the public is publication of the notification in the newspaper. Learned Advocate for the Railways submitted that it is a matter of fact that public at large takes note of Government notifications only when they are published in newspapers, because of the level of education and extent of circulation of Government Gazette renders it not accessible. Learned Advocate for the Railways submitted that it is a matter of fact that public at large takes note of Government notifications only when they are published in newspapers, because of the level of education and extent of circulation of Government Gazette renders it not accessible. Otherwise, the legislature could have provided that once notification is published in 'Government Gazette', it is sufficient for all purposes. But the legislature taking note of the fact that publication in 'Government Gazette' is required only to compete the requirement under the law but to see that the public at large takes note of the same and acts on the same, it is necessary that notification be published in newspaper also. 7.1. Learned Advocate for the Railways rightly submitted that whenever any representation or objection is to be filed, what is normally considered is 'the date of publication of notification in newspaper'. That being so, for publication of a notification under Sec. 20E(3) of the Act, period is to be counted only from the date of publication of notification in newspaper and not from the date of publication of notification in Government Gazette. 8. The Court after giving thoughtful consideration to the rival submissions of the learned Advocates for the parties, is of the opinion that requirement under the law of 'publishing notification in a newspaper' is not an empty formality. It is definitely with 'a purpose' and that 'purpose' is that the public at large takes 'note' of the same and 'acts' on the same. That being so the date of publication in newspaper is to be given due recognition. This recognition can be given by reckoning the period prescribed from the date of publication of Notification in a newspaper. 8.1. Learned Advocate for the respondent authorities submitted that the Act being recent one, i.e. of 1989, he is not able to lay hand on any decision wherein period for publication of a notification under Sec. 20E(3) is reckoned from the date of publication of the notification under Sec. 20A(1) of the Act in a newspaper. He submitted that if his submission that period be reckoned from the date of publication in newspaper is accepted, it is not going to cause any absurd result and it is not going to cause any prejudice either. He submitted that if his submission that period be reckoned from the date of publication in newspaper is accepted, it is not going to cause any absurd result and it is not going to cause any prejudice either. In support of his submission that no prejudice is going to be caused to the petitioner, he submitted that though the notification was published in a Government Gazette under Sec. 20A(1) on 10-2-2009 and the same was published in newspaper on 27-2-2009 till the filing of the petition, the petitioner has not filed any objection, as contemplated under the law, meaning thereby the petitioner has not objected to the acquisition of his land. 9. The learned Advocate for the respondent Railways also submitted that the present acquisition of the land is for the purpose of Special Railway Project, Western Dedicated Freight Corridor, which is going to be as important as an 'artery' in human body. He submitted that accepting the submission of the learned Advocate for the petitioner will amount to allowing a too technical submission to frustrate the object of a very important project. 10. The Court has found the submissions of the learned Advocate for the Railway acceptable, and is convinced of the fact that in the matter of publication of the notification under Sec. 20E(3) of the Act, 'the period is to be reckoned from the date of publication of the notification in a newspaper and not in a official gazette '. 10.1. In the result, the submissions of the learned Advocate for the petitioner are not found 'acceptable', and hence, the petition fails. It is dismissed. Rule is discharged. (NRP) Petition dismissed.