Gujarat High Court
Ismail Gulam Mahmad Davji Patel vs State Of Gujarat And Ors. on 22 March, 1991
Equivalent citations: (1991)2GLR865
Author: M.B. Shah
Bench: M.B. Shah
JUDGMENT M.B. Shah, J.
1. In these two petitions, the petitioners are challenging the land acquisition proceedings for which Section 4 Notification was published in Official Gazette on 5-5-1983 by which various lands were sought to be acquired for the extension of Ankleshwar Industrial Estate by the Gujarat Industrial Development Corporation. Section 6 Notification was published in the Official Gazette on 27-9-1985. It should be noted that the lands of three different villages, namely, Sarangpur, Dadhal and Jitali of Ankleshwar Taluka, District Bharuch, are acquired by the aforesaid Notification. The petitioners are owners of some lands situated at village Jitali, which are covered by the Notifications issued under Sections 4 and 6.
2. At the time of hearing of these petitions, it has been contended by the learned Advocate for the petitioner that:
(1) The Land Acquisition Officer has passed the Award after the prescribed period of two years as provided under Section 11A of the Land Acquisition Act as it is made on 2nd November, 1987;
(2) The Land Acquisition Officer has not followed the procedure prescribed under Section 6(2) of the Land Acquisition Act as the substance of the declaration for land acquisition is not published in the locality.
(3) There is no satisfaction of the Government with regard to the requirement by the G.I.D.C. or that Government has not arrived at the conclusion that G.I.D.C. presently requires the land;
(4) The procedure prescribed under Rules 30 and 30A of the Land Acquisition Rules framed by the Gujarat Government is not followed.
The first contention of the learned Advocate for the petitioner is with regard to making of the Award within the prescribed time. For deciding this contention, it would be necessary to refer to the following statement made by Officer on Special Duty, G.I.D.C., in his affidavit-in-reply:
I submit that publication of declaration of Section 6 Notification has been done scrupulously as provided under the Act. The said Notification has been published from time to time as under:
(A) Notification under Section 6 issued 12-8-1985 (B) Published in Gujarat Government Gazette 27-9-1985 (C) Published in English daily "Times of India" 28-8-1985 (D) Published in Gujarati daily "Gujarat Samachar" 30-8-1985 (E) Published at Mamlatdar's Office, Ankleshwar 6-11-1985 (F) Published at Village Panchayat Office and at site 6-11-1985
The copy of Section 6 Notification issued by the State Government in Official Gapette, copies of petition in two dailies, copy of the report of Mamlatdar, Ankeleshwar and copy of village Talati are marked and annexed as Annexures 'F', 'G', 'H', T, 'J', 'K' and 'L' respectively. I say that these publications are in complete accord as laid down in Section 6(2) of the said Act.
From the aforesaid facts, it is clear that Notification dated 12th August, 1985 issued under Section 6 was published in Gujarat Government Gazette on 27th September, 1985. It is also published in Gujarati and English Newspapers on 30th August, 1985 and 28th August, 1985 respectively. Further, it has been published in Mamlatdar's Office at Ankleshwar and at the Office of Village Panchayat and at the site on 6th November, 1985. The Award is declared on 2nd November, 1987. Therefore, it is apparent that it is published within two years from the last date of publication of declaration i.e., 6-11-1985.
3. However, Mr. Desai, learned Advocate appearing on behalf of the petitioners vehemently submitted that assuming for the time-being that on 6th November, 1985 a declaration as required under Sub-section (2) of Section 6 was published at the site, yet that date should not be taken into consideration for holding that the Award passed by the Land Acquisition Officer on 2nd November, 1987 is within time. For this purpose, he has relied upon judgment of the Punjab and Haryana High Court in the case of Satish Kapur v. State of Haryana and Anr. wherein the Court has relied upon the Full Bench decision of that Court in the case of Rattan Singh and Anr. v. The State of Punjab and Ors. AIR 1976 Punjab and Haryana 279 and has held that even a few dayss' delay between the publication of the Notification in the Gazette and the publication of its substance in the locality concerned may prove fatal and it would be enough to quash the impugned notification. It seems that the learned Advocate for the petitioners has relied upon the said judgment without verifying the fact that the aforesaid judgments are specifically overruled by the Supreme Court in the case of Deepak Pahwa v. Lt. Governor of Delhi and Ors. .
4. For deciding this contention, it would be necessary to refer to Sub-section (2) of Sections 6 and 11A of the Land Acquisition Act, which are as under:
6. Declaration that land is required for a public purpose:
xxx xxx xxx (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 dates of such publication and the giving of such public notice, being hereinafter referred to as the date of the 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.
11 A. Period within which an award shall be made:
The Collector shall make an award under Section 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, 1894, the award shall be made within a period of two years from such commencement. Explanation: In computing the period of two years referred to in this section, the period during which any action or proceeding to be taken in pursuance of the said declaration is stayed by an order of a Court shall be excluded.
From Section 11A, it is clear that the Collector is required to make an Award within a period of two years from the date of the publication of the declaration under Section 6 of the Land Acquisition Act that the land is required for public purpose. The phrase "the date of publication of the declaration" is given meaning under Sub-section (2) of Section 6 as "the last date of such publication", meaning thereby, the last date of publication in the Official Gazette, two daily Newspapers and the publication of notice of the substance of such declaration at the convenient place in the locality in which the land is situate would be the relevant date. The Legislature has not prescribed any period during which all these publications are required to be completed. On the contrary, by providing that the last date of such publication shall be taken into account, it has specifically contemplated that there would be some time-gap between the two publications. It has not provided that publications in the Official Gazette, Newspaper or at the site should be simultaneously or immediately. Still, however, if there is a large gap from which a prima facie conclusion of lack of bona fides in proceedings for acquisition can be drawn, then it may have some effect. Then it may become necessary to go further if there is any cause for delay and if the delay has caused prejudice to any one. Simply because there is some time- gap between the publication of the Notification under Section 6 in the Gazette and at the site, the date of publication at the site cannot be ignored for counting the period of two years for making the Award. The period of two years for making the Award is to be reckoned from the date, whichever is later.
5. Similar question with regard to Notification under Section 4 is dealt with by the Supreme Court in the case of Deepak Pahwa v. Lt. Governor of Delhi and Ors. . In that case, it was contended that delay of 29 days in giving notice of the substance of the Notification in the locality after publication of the Notification under Section 4 in the Gazette was fatal to the Notification itself. The Court negatived the said contention and held that Section 4(1) does not prescribe that the public notice or the substance of the notification should be published in the locality simultaneously with the publication of the notification in the Official Gazette or immediately thereafter. The time factor is not a vital element of Sub-section (1) of Section 4. The publication in the Official Gazette and public notice in the locality are the essential elements of Section 4(1). It may involve a gap of time but at the same time there should not be a long interval of time so as to appear that continuity of action is broken. If there is a large gap from which prima facie conclusion of lack of bona fides in proceedings for acquisition can be drawn, then, it may have some effect and it may become necessary to go further to discover if there is any cause for delay and if the delay has caused prejudice to any one. This would be clear from paragraph 3 of the judgment, which reads as under:
3. It may be noted at once that Section 4(1) does not prescribe that public notice of the substance of the notification should be given in the locality simultaneously with the publication of the notification in the Official Gazette or immediately thereafter. Publication in the Official Gazette and public notice in the locality are two vital steps required to be taken under Section 4(1) before proceeding to take the next step of entering upon the land Section 4(2). The time factor is not a vital element of Section 4(1) and there is no warrant for reading the words 'simultaneously' or 'immediately thereafter' into Section 4(1). Publication in the Official Gazette and public notice in the locality are the essential elements of Section 4(1) and not the simultaneity or immediacy of the Publication and the Public Notice. But since the steps contemplated by Section 4(2) cannot be undertaken unless publication is made and public notice given as contemplated by Section 4(1), it is implicit that the publication and the public notice must be contemporaneous though not simulataneous or immediately after one another. Naturally contemporaneity may involve a gap of time and by the very nature of the things, the publication in the Official Gazette and the public notice in the locality must necessarily be separated by a gap of time. This does not mean that the publication and the public notice may be separated by a long interval of time. What is necessary is that the continuity of action should not appear to be broken by a deep gap. If there is publication in the Official Gazette and if there is public notice in the locality, the requirements of Section 4(1) must be held to be satisfied unless the two are unlinked from each other by a gap of time so large as may lead one to the prima facie conclusion of lack of bona fides in the proceeding for acquisition. If the notification and the public notice are separated by such a large gap of time, it may become necessary to probe further to discover if there is any cause for the delay and if the delay has caused prejudice to anyone.
Thereafter, the Court further considered the contention whether notice under Section 5A should be given within 30 days after the publication of the Notification in the Official Gazette or whether from the date of pulication of the substance in the locality and held that there is no reason to confine the period of 30 days presecibed by Section 5A to one mode. The period of 30 days may be reckoned from either the date of publication in the Gazette or the date of public notice of the substance of the notification in the locality whichever is later.
6. In the additional affidavit-in-reply, it has been pointed out that the Section Officer of the State of Gujarat has written a letter to the Government Press on 27th September, 1985 to publish notification under Section 6 in the Extrodinary Gazette. Section 6 Notification was publiship in the Extrodinary Gazette on 27th September, 1985. Thereafter, in formation was sent about the said publication at the Office of the Special Land Acquisition Officer, G.I.D.C. at Ahmedabad on 16-10-1985. On 4-11-1985, the notice, along with the appendix, was sent to the Office of the Mamlatdar, Ankleshwar and Talati of Villages Sarangpur, Dadhal and Jitali. In pursuance of the said letter, notices were published at the Mamalatdar Office, Village Panchayat Office and at the site as stated above.
7. At this stage, we would like to deal with the contention of the learned Advocate for the petitioners that the Talati of village Jitali has not published the declaration as required under Section 6(2) at the site on 6th November, 1985 for the lands of village Jitali. For this purpose, he has relied upon the affidavit of Laxmanbhai Vasava, who is working as a Peon in the Office of Jitali Gram Panchayat, wherein it is stated that on 6-11-1985 the Talati of the Gram Panchayat has not given him any notice of publication in the Panchayat's Office. He has also relied upon the affidavit of Dahyabhai R. Patel, the Talati of the village Jitali (now retired), wherein he has stated that on 6-11-1985, he was working as Talati-cum-Mantri at village Jitali, and on 6-11-1985, he had not published the declaration at the site. However, he has stated that on 19-11-1985, he has received the notice for publication at Panchayat's Office from the Officer on Special Duty for village Sarangpur, but he has not received similar notice for village Jitali. With regard to the aforesaid affidavit, it should be noted that no reliance can be placed upon the said affidavit, because Dahyabhai, who was working as Talati-cum-Mantri, has retired from his service. Further, it would be difficult to imagine that after a lapse of six years, he would remember that for a particular village, he has received notice for publication at the site, but for some other village, he has not received similar notice. To settle this controversy, we have called for the original record. From the original record, it appears that by letter dated 4-11-1985, the Special Land Acquisition Officer had ssent information to the Talati-cum-Mantri to publish the substance of the declaration at the site, Village Panchayat Office and at the Office of the Mamlatdar. From the record, it is clear that the substance of the aforesaid notification was published at the Office of the Mamlatdar. The xerox copy of the report submitted by the Mamlatdar, Ankleshwar is produced on record along with the affidavit-in-reply. The Mamlatdar Ankleshwar had stated that on 6-11-1985, public notice as required under Section 6(2) was published on the notice board. For this report, Mr. Desai, learned Advocate for the petitioners has not raised any objection. Now, from the original record, it appears that similar information was sent to the Talati-cum-Mantri for publication. Perusing the original record learned Advocate for the petitioners submitted that there is correction in date in the office copy. He submitted that publication would be either on 26th November, 1985 or on 16th November, 1985, but it would not be on 6th November, 1985 and, therefore, we should rely upon the submission of the petitioners that, at the site, the declaration was not published. On contrary, in our view, this clearly indicates that petitioners have made an incorrect statement that at the site, substance of the notification was not published. From this, it becomes clear that substance of the notification was published. Either it may be on 26th November, 1985, 6th November, 1985 or 16th November, 1985 and merely because of some correction, it would not mean that it was not published.
8. Not only this, the petitioners were served with a notice under Sub-section (3) and (4) of Section 9 on 6th November, 1985. In response to the said notice, petitioners have never raised the contention that substance of the notification under Section 6 was not published at the site. They have made written submissions by filing reply on 30th November, 1985. Mr. Desai, learned Advocate appearing on behalf of the petitioners, was not in a position to point out anything from the record that before the Land Acquisition Officer, any such contention was raised by the petitioners.
9. It should be noted that the petitioners and other persons had filed Special Civil Application No. 4295 of 1985 before this Court for a direction to the respondents to issue notification under Section 6 of the Land Acquisition Act and to make an Award under Section 11 of the Act. On 26th August, 1985, the matter was dismissed as learned Advocate, who was appearing on behalf of the respondents, had submitted that the decision to issue notification under Section 6 of the Land Acquisition Act was taken on 12th August 1984. This also means that the petitioners were aware about Section 6 Notification.
10. In view of the aforesaid facts, in our view, there is no substance in the contentions of the learned Advocate for the petitioners that the Award is made after the prescribed time, and that the Land Acquisition Officer has not followed the procedure prescribed under Section 6(2) or the procedure prescribed under Rules 30 and 30A of the Land Acquisition Act framed by the Gujarat Government.
11. The learned Advocate for the petitioners lastly submitted that before issuing the notification under Section 6, the State Government ought to have verified whether the land is required by the G.I.D.C. or not, as large tract of land acquired by the G.I.D.C. is kept vacant for a number of years. In our view, there is no substance in this contention. In Section 6 Notification, it has been specifically stated that the Government was satisfied, after considering the report of the Officer on Special Duty (Land Acquisition), Ahmedabad that the said lands are needed to be acquired for the public purpose for the expansion of Ankleshwar Industrial Estate by the Gujarat Industrial Development Corporation. For this purpose, Mr. Chhaya, rightly relied on the judgment of the Supreme Court in the case of Ganga Bishnu Swaika and Anr. v. Calcutta Pinjrapole Society and Ors. wherein the Court has observed that the fact that Section 5A inquiry was held and objections were filed and heard, the fact that the Additional Collector had recommended the acquisition and had sent his report to that effect and the Government thereafter issued Section 6 Notification would, in the absence of any evidence to the contrary, show that the condition precedent as to satisfaction was fulfilled. Further, it is not required that once the land is acquired by the G.I.D.C., it should immediately develop it and dispose it of. For developing and disposal, some time- gap is bound to be there. Hence, it cannot be said that the G.I.D.C. is not in need of the land.
12. In this view of the matter, there is no substance in these petition and are, therefore, rejected. Notice discharged. Ad interim relief vacated.
At the request of the learned Advocate for the petitioners, ad interim relief granted by this Court shall continue for a period of 8 weeks from today.