Madras High Court
The Government Of Tamil Nadu ... vs S. Jayaraman on 9 December, 1991
Equivalent citations: (1992)2MLJ294
JUDGMENT Venkataswami, J.
1. This writ appeal is filed against the order of the learned judge in W.P. No. 14480 of 1990, dated 15.2.1991.
2. The only question that arises for our consideration in this writ appeal is, what exactly is the date of the publication of the Notification for the purpose of Clause (ii) of the Proviso to Sub-section (1) of Section 6 of the Land Acquisition Act, 1894 (hereinafter called 'the Act')? Is it from the date of publication of the 4(1) Notification in the Official Gazette, or can it be from the date of publication of the 4(1) Notification in two daily newspapers circulating in the locality as required in that section, or from the date of publication notice of the substance of such Notification at convenient places in the locality. We are concerned with Sections as amended by Central Act 68 of 1984.
3. The admitted facts are the following:
In this case, the Notification under Section 4(1) of the Act dated 21.4.1989 was published in the Official Gazette on 17.5.1989. The publication of the Notification in the daily was on 19.5.1989. However, the substance of the same was published in convenient place of the locality only on5.7.1989.The declaration under Section 6 of the Act was published on 3.7.1990. It is common ground that if the date of publication of Section 4(1) notification is to be counted from the date of publication of the same in the Official Gazette, then the declaration under Section 6 of the Act is barred under Clause (ii) of Proviso to Sub-section (1) of Section 6 of the Act. On the other hand, if the time is to reckon from the date of public notice of the substance of the4(1) Notification in convenient places of the locality, the declaration is in time.
4. Mishra, J. was of the view that the time has to be reckoned from the date of publication of Section 4(1) Notification in the Official Gazette, and in so doing, the declaration being out of time, quashed the Notification under Section 4(1) of the Act. Aggrieved by the above decision of the learned Judge, the Government have preferred this appeal.
5. Mr. M.A. Sadanand, learned Government Pleader, after referring to Sections 4(1) and 6 of the Act, as amended by Central Act 68 of 1984, and in particular, inviting our attention to the amendment to Section 4(1) by Central Act 68 of 1984, submitted that the view taken by the learned Judge is contrary to the view expressed by Mohan, J., as he then was, in S. Vellaikkan v. The State of Tamil Nadu 1988 Writ L.R. 22, and requires reconsideration. In the case reported in S. Vellaikkan v. The State of Tamil Nadu 1988 Writ.L.R. 22, the learned Judge has taken the view that it is the date on which the substance of the 4(1) Notification was published in the convenient place of the locality, that was material for the purpose of calculating the period of one year contemplated under Section 6 of the Act. We find a reference to a judgment of the Supreme Court in State of U.P. v. Radhey Shyam , and two Division Bench judgments of this Court in G.Nandakumar v. State of Tamil Nadu 1985 T.L.NJ. 109 and P.Venkatarathinam Naidu v. State of Tamil Nadu 1990 T.L.NJ. 264, will be apposite in the context.
6. Contending contra, the learned Counsel appearing for the respondent submitted that on the language of Section 4(1) read with Section 6 of the Act, the view taken by the learned Judge (Mishra, J.) is correct, and if at all, only the view taken by Mohan, J., as he then was, requires reconsideration.
7. For appreciating the rival contentions, it is necessary to set out Section 4(1) and the relevant portion of Section 6 of the Act as amended by Act 68 of 1984. They are 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 convenient 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: (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 Section 5-A, Sub-section (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 officer 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 Section 4, Sub-section (1), irrespective of whether one report or different reports has or have been made (wherever required under Section 5-A, Sub-section (2):
Provided that no declaration in respect of any particular land covered by a notification "under Section 4, Sub-section (1):
(i) xx xx xx
(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.
Explanation 1:- In computing any of the periods referred to in the first proviso, the period during which any action or proceeding to be taken in pursuance of the notification issue under Section 4, Sub-section (i), is stayed by an order of a court shall be excluded.
8. Before expressing our view, we consider that it would be advantageous to extract the relevant portions from the reported judgments cited before us.
9. In S. Vellaikkan v. The State of Tamil Nadu 1988 Writ.L.R. 22, Mohan, J., as he then was, had occasion to consider an exactly identical question. The learned Judge held as follows:
Now, the question arises what exactly is the date of publication of the notification, because it is from that date one year is prescribed under the amended Section 6(1) of the Act. It is clear by a careful reading of Clause (c) the last date of such publication and the giving of such public notice being hereinafter referred to as the date of the publication of the notification. In the case on hand, as stated earlier, the notification under Section 4(1) of the Act was made in G.O.Ms.No.1824, Social Welfare Department, dated 5.9.1985. That was published in the Tamil Nadu Government Gazette on 18.9.1985, in the Tamil Daily Dhinathanthi on 28.9.1985, and in The Hindu of l.l0.1985 Thereafter, the Collector caused public notice of the substance of the notification under Section 4(1) at convenient places in the said locality on 10.10.1985. Page 94 of the file clearly shows that this was done in the village by beat of tom-tom, which will be sufficient compliance, and by affixture at convenient places. Thus it is clear the last date of the publication of the notification under Section 4(1) being 19.10.1985, it is that date which is material for calculating the one year period prescribed under Section 6 of the Act. By the amendment of Section 6 it is laid down in no uncertain terms, that where the notification under Section 4(1) is published after the amendment of the Land Acquisition Act, which amendment came into force on 24.9.1984, the period is one year because the Proviso to Section 6(ii) says that no declaration under Section 6 shall be published after the expiry of one year from the date of the publication of the notification. In this case Section 4(1) notification is on 5.9.1985 as seen already. It is undoubtedly after the amending Act 68 of 1984 in which case the one year period alone is available. It is, in this connection, the date of publication of notification under Section 4(1), the last of the date being 19.10.1985, becomes material. If reckoned from the date, undoubtedly the declaration under Section 6 made in G.O.Ms.No.2743, dated 16.10.1986 published in the Tamil Nadu Government Gazette on 16.10.1986 and in English daily News Today on 17.10.1986, 18.10.1986, Makkalkural Tamil Daily on 17.10.1986 and 18.10.1986 are perfectly within the one year period. Therefore, the first contention raised by the petitioner fails.
10. In G. Nandakumar v. State of Tamil Nadu 1985 T.L.N.J. 109, a Division Bench of this Court has considered the consequence of inordinate delay between the dates of publication of 4(1) in the Official Gazette and the publication of substance of the same in the convenient places of the locality. While so considering, the learned Judges, have noted that compliance of publication of the substance of Section 4(1) Notification is mandatory and non-compliance of it is fatal to the entire acquisition proceedings. In support of that, the learned Judges have referred to a judgment of the Supreme Court in Khub Chand and Ors. v. The State of Rajasthan and Ors. (1967)1 S.C.R. 1074. Of course, they have repelled a contention that the substance of the 4(1) Notification should be published simultaneously with the publication of the 4(1) Notification in the Official Gazette. However, the learned Judges held that they must be contemporaneous and there must be evidence to show that there was continuity of action. This is what the learned Judges have held, after elaborate discussion:
The provisions being mandatory and the law of acquisition being one of depriving the citizens of their right to property to which some of them are sentimentally attached, strict compliance of the provisions of law is required. It is clear that local notice should be made if not simultaneously at the announced time in the Gazette and in the locality but at least within a minimum possible time after the notification. The officials concerned have to act with sincerity and in a most diligent manner because any avoidable delay would render the publicity contemplated under Section 4(1) of the Act effectless.
11. In P. Venkatarathinam Naidu v. State of Tamil Nadu, 1990 T.L.N.J. 264, another Division Bench followed the above Division Bench judgment and quashed the acquisition proceedings on the ground of a deep gap between the publication in the newspapers and the publication of the substance of the 4(1) Notification in convenient places of the locality.
12. One Supreme Court judgment has to be looked into now. In State of U.P. v. Radhey Shyam , the Supreme Court considered a question in the light of Amendments introduced to Sections 4, 6 and 17(4) of the Act by Central Act 68 of 1984, and the question is as follows:
whether the declaration under Section 6 of the Act could be issued simultaneously along with the Notification under Section 4 of the Act in view of the amendment made to Section 17(4) of the Act.?
After an elaborate discussion, the Supreme Court held as follows:
But the words "after the date of the publication of the notification" in Sub-section (4) of Section 17 read simpliciter clearly indicate that declaration under Section 6 had to be made after the publication of the notification, meaning thereby subsequent to the date of the publication of the notification.
In the course of the judgment, the Supreme Court has made certain observations which are relevant and helpful for deciding the issue on hand. The Supreme Court, after noticing an earlier decision Collector (District Magistrate), Allahabad v. Raja Ram Jaiswal , observed as follows:
This Court held that the publication of the notice in the locality as required in the second part of Section 4(1) of the Act was mandatory and unless that notice was given in accordance with the provisions contained therein, the entire acquisition proceedings would be vitiated. The Court further held that the assumption that the sole purpose behind publication of a notice in the locality under Section 4(1) was to give an opportunity to the person interested in land to object to the acquisition under Section 5-A of the Act was not well-founded. Therefore, it cannot be said that where such person files his objections, the purpose was achieved and that the failure to give public notice in the locality need not be treated as fatal to the proceedings.
The Supreme Court, on the scope of the interpretation of a statute, observed, after noticing another judgment of the Supreme Court in Raja Satyendra Narayan Singh v. State of Bihar , as follows:
The basic principle, it was reiterated at page325 of the reports, of the construction of every statute was to find out what is clearly stated and not to speculate upon latent imponderables. The scheme of the Act also must be looked into. In interpreting the statutes it is safer to rely on the obvious meaning rather than to investigate the imponderables.
Bearing in mind the various ratios laid down by this Court and the principles laid down by theSupreme Court' as referred to above, let us now consider the question on hand.
13. Bearing in mind the various ratios laid down by this Court and the principles laid down by the Supreme Court as referred to above, let us now consider the question on hand.
14. We have extracted above, the relevant provisions. Mishra, J., expressed his view about the question on hand as follows:
Coming to the language of Section 4 of the Act however I find that while it has clearly stipulated publication of the Preliminary notification in the Official Gazette and in two daily newspapers circulating in the locality, it says that the Collector shall cause public notice of the substance of such notification. While the contemplated publication in the Official Gazette and in two daily newspapers is the publication of the text of the notification, only substance of the notification is required to be given at convenient places in the locality. It is clear therefore that publication of the notification must in the circumstances of the case mean publication in the Official Gazette and in two daily newspapers circulating in the locality. The words "the last of the dates of such publication and the giving of such public notice, being hereinafter referred to as the date of the publication of the notification" are meant for the actions that the officers may take with respect to the land proposed to be acquired.
The learned Judge has also given another reason for the above view in the following words:
If publication in the Official Gazette and in daily newspapers on the one hand and notice of the substance of the notification on the other hand are made on different dates and there is a long gap of time between the two, will it be open to the State Government and/or officers to say that they would treat the public notice of the substance of the notification as the date of the publication and ignore the publication in the official gazette and in the daily newspapers for the purpose of Clause (ii) to Proviso to Sub-section (1) of Section 6 of the Act? The learned Judge answers the above question as follows:
The legislature has said the last of the dates of such publication and the giving of such public notice' evidently to indicate that there may be some gap between the publication in the Official Gazette ad the newspapers and between the publication in the Official Gazette and the newspapers and the public notice. The last date of such publication in the said expression must in the context confine to the purpose under Section 4(2) of the Act and not extend to the purpose of the declaration under Section 6 of the Act.
On that basis, the learned Judge was firmly of the view that the date of publication of the substance of the 4(1) Notification in the convenient places of the locality cannot be taken as the last date for the purpose of counting one year contemplated under Clause (ii) to Proviso to Sub-section (1) of Section 6 of the Act. With respect, we are unable to agree with the view taken by the learned Judge. We shall immediately give our reasons.
15. First of all, the reason given by the learned Judge that the words 'the last of the dates of such publication and the giving of such public notice, being hereinafter referred to as the date of the publication of the notification' are meant for the actions that the officers may take with respect to the land proposed to be acquired, does not appear to be sound. For, even in the absence of those words, the section conveys the same idea particularly in view of the use of the word 'thereafter' in Section 4(2). The language employed in Section 4(1) is, that each one of the requirements, namely, publication in Official Gazette, publication in the newspapers, and publication of the substance in convenient places of the locality are all indispensable and, as observed by the Supreme Court, the non-observance of any one of those requirements will be fatal to the acquisition proceedings. Therefore, unless all the three requirements are complied with, the officers cannot invoke Section 4(2) of the Act. As noticed above, the Supreme Court has clearly observed that the publication of the substance of the notification in the convenient places of the locality is as important as that of the other two requirements. Again, applying the principle laid down by the Supreme Court in the matter of interpretation of statutes, namely, the Court must find out what is clearly stated in the statute and not speculate upon the latent imponderables, we consider that the interpretation given by the learned Judge cannot be sustained. We are, therefore, of the view that a plain reading of the words, namely, 'the last of the dates of such publication and of the giving of such public notice being hereinafter referred to as the date of publication of the Notification' introduced in Section 4(1) by Central Act 68 of 1984, will only mean that the date on which public notice of the substance of the notification is given at convenient places in the locality is to be taken as the date of publication of the Notification in Section 4(1) of the Act for the purpose of computing the period of one year contemplated under Clause (ii) of proviso to Sub-section (1) of Section 6 of the Act. Mohan, J., as he then was, in S. Vellaikkan v. The State of Tamil Nadu 1988 Writ L.R. 22, has taken similar view, with which we concur.
16. The apprehension expressed by the learned Judge that the other interpretation, namely, taking into account the publication of the substance of the 4(1) Notification in the convenient places of the locality, as the last date, would enable the Government to take undue advantage of the same, is answered in the two Division Bench judgments of this Court. The learned, Judges have clearly stated that there should not be long gap between the publication of the 4(1) Notification in the Official Gazette and in the newspapers and the publication of the substance of the 4(1) notification in the convenient places in the locality. In fact, the learned Judges have quashed the acquisition proceedings in those two cases on account of deep gap, as noticed above. We would like to reiterate that there must be continuity of action in the publication of the 4(1) notification in the Official Gazette and in the newspapers and also in giving public notice of the substance of the 4(1) notification at convenient places in the locality, and if there is any long delay and/or break in the continuity, in any individual case, it is open to the court to quash the acquisition proceedings. It is obvious on a plain reading of the said Amendment that for the purpose of finding out the last of the dates, the publication and giving of public notice are made inseparable in the Amendment and therefore the date on which public notice of the substance of the 4(1) notification was given at the convenient places in the locality cannot be ignored for the purpose of finding out the last of the dates. Unless there are convincing reasons such as stay granted by Courts or Competent Authorities or otherwise, the delay between the publication of the 4(1) notification in the Official Gazette and the public notice of the substance at convenient places of the locality should not exceed two months. If it exceeds two months, it is liable to be questioned.
17. On facts, it is not disputed before us that the declaration under Section 6 was well within one year from the date of public notice of the substance of the 4(1) notification in the convenient places in the locality. Therefore, the challenge to the declaration under Section 6 on the ground that it is beyond one year from the date of publication of 4(1) notification in the Gazette, cannot be (sic.) sustained.
18. In the result, the writ appeal is allowed, the order of the learned judge is set aside, and the writ petition is dismissed. However, there will be no order as to costs.